The DOJ Asks the Supreme Court to Overturn DOMA

As I have argued before, there are at least three good reasons why it is probably better for the DOMA Cases to reach the Supreme Court before the Prop 8 case, if the latter ever does. First, the substantive law of the Ninth Circuit's decision in Perry v. Brown is suspect. Second, DOMA is a stark example of antigay discrimination that isn't laden with the moral questions of a direct challenge to a ban on same-sex marriage. Plus, DOMA is, on its face, about benefits, entitlements, and the tangible accouterments that go along with marriage. DOMA prevents legally married couples from staying in this country together when one spouse is a foreign national. It costs widows hundreds of thousands of dollars upon the passing of their spouse. It keeps spouses off health care plans and denies them Social Security benefits. These are things — the tangible "stuff" of government — that opposite-sex couples cannot do without. DOMA is not about marriage; in fact, it does nothing to state laws that recognize or refuse to recognize marriages for same-sex couples. And, third, if marriage recognition is our ultimate battle, creating positive precedent along the way can only help, much like Romer and Lawrence have created positive precedents for every gay rights victory to come.

But in the aftermath of the Supreme Court's curious decision in National Association of Independent Business v. Sebelius (the "Obamacare" case) and the Ninth Circuit's decision in Perry v. Brown, speedy and prompt resolution of the DOMA Cases takes on extra importance. 

Golinski and Massachusetts are just two controversial cases that may be on the Court's docket next year. The justices will also consider the fate of affirmative action in college admissions, a policy blessed by the Court only because the now-retired moderate Justice Sandra Day O'Connor sided with the Court's liberal wing the last time around. Conservative and Tea Party politicians are also challenging the Voting Rights Act. So, the Court's conservatives have the opportunity to install a socially anachronistic regime on a wide swath of the culture and race wars now that, if some commentators are to be believed, Chief Justice Roberts's vote to uphold the ACA inoculates him and the Court from charges of bald partisanship and arch-conservatism.

UnknownBriefly, the argument goes like this: The Chief Justice allegedly switched his vote from rejecting the ACA to upholding it using the curious Taxing Power rationale after feeling the heat from the zeitgeist of the times. After Bush v. Gore and Citizens United, progressives were starting to see the Supreme Court as nothing more than a Republican rubber stamp, law be damned. Concerned about his legacy and the Court's reputation under his watch, the Chief Justice saved the President's signature legislative achievement in the narrowest, most conservative way possible to give the battle to the left, but win the longer war for the right. Not only did he use Sebelius to further restrict the reach of the Commerce Clause — a long standing crusade of the right — but he showed his ostensible independence. Now, if he demolishes the Voting Rights Act, ends affirmative action, and sides with Justice Scalia's blatant homophobia on the DOMA Cases, he can point to the ACA to show his evenhanded demeanor.

That argument makes a lot of sense to me, but I won't lose sleep over it. In the end, DOMA should be hated by at least 6 justices on the Court — small-government conservatives (Chief Justice Roberts, though a social conservative indeed, has shown a greater judicial proclivity to this camp), moderates, and liberals. And, a win is a win is a win, regardless of the noise that surrounds it.

The real question may end up being about the level of scrutiny the Court uses to strike down DOMA. There seem to be three options. First, the Court could listen to President Obama and use heightened scrutiny to evaluate any state action that discriminates on the basis of sexual orientation. There is every reason to do so, and the DOJ has argued the details in every brief since the President made his view known last year: sexual orientation is unchanging, gays have been historically discriminated against, and lack the political clout to eradicate discrimination at the ballot. Judge White of the Northern District of California used heightened scrutiny when he declared DOMA unconstitutional in Golinski (notably, he also found DOMA unconstitutional under an alternative rational basis holding). 

Second, the Court could follow the First Circuit in Massachusetts and Gill v. OPM and use the so-called "rational basis plus," a more searching form of review somewhere above the most permissive form of judicial review and heightened scrutiny. This form of review finds support in Supreme Court majority opinions from Justices Kennedy and O'Connor and the conventional wisdom taught in law schools. DOMA is undoubtedly unconstitutional under this standard of review.

Third, the Court could make a mistake and assume that rational basis review for discriminatory social legislation is the same for economic legislation under the Commerce Clause. This was the central error of Justice Smith's dissent in the Ninth Circuit's decision in Perry. He argued that as long as the voters of California acted in good faith, it didn't matter that they voted to discriminate against gays based on fear, junk science, and lies, and without any rational connection between reality and the law they passed. That egregiously permissive standard makes a mockery of Lawrence v. Texas, which expressly rejected such a standard, and threatens to nullify the Supreme Court's and sister appellate courts' decisions on legislation that classifies persons on nothing more than sexual orientation status.

I have little faith in a majority of this Court agreeing to heightened scrutiny most notably because Justice Kennedy, the swing vote, declined to use that standard in his previous progay decisions. However, this time around, the Government has thrown its full weight behind heightened scrutiny, a factor that has swayed the Court in the past. And, yet, the Supreme Court has to make this decision. As we have seen from appellate court decisions in Perry (citing High Tech Gays) and Gill (citing the Don't Ask, Don't Tell case, Cooke v. Gates), the issue is unsettled in the lower courts, with District Judge White coming out in favor of heightened scrutiny regardless of what the Ninth Circuit said back in 1991.

What do you think? Do you think we need heightened scrutiny to win our upcoming civil rights battles? Would you prefer the victory regardless of the standard of review?


Ari Ezra Waldman teaches at Brooklyn Law School and is concurrently getting his PhD at Columbia University in New York City. He is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. His research focuses on technology, privacy, speech, and gay rights. Ari will be writing weekly posts on law and various LGBT issues. 

Follow Ari on Twitter at @ariezrawaldman.



  1. daftpunkydavid says

    it certainly matters. i would hope they apply heightened scrutiny. it would speak to the reality on the grounds, and its reach would go beyond marriage equality.

  2. mikenola says

    I find it interesting that Ari says “First, the substantive law of the Ninth Circuit’s decision in Perry v. Brown is suspect.”

    Suspect on what face? The court opinion says “Proposition 8 servers no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officialy reclassify their relationships and families as inferior to those of opposite-sex couples.”

    The 14th Amendment pretty much seems to bar that type of legislation.

    I don’t see where that is suspect, unless he means it is suspect because SCOTUS has not affirmed it or let that ruling stand without comment.

    as for Ari’s question, only a lawyer or a foe would actually care what standard we actually win under.

    From the foe’s point of view, strict scrutiny would actually create a post-ad hoc classification of LGBT people as being a “suspect class”, which would reign in all anti-gay legislation revuew under that umbrella. Which is bad for the haters. It is truly difficult to sustain legislation that reduces the rights of a suspect class.

    But for us, would you really feel bad, morally or emotionally, if the Courts were to be required to take a harder look at cases that tried to limit or take away our rights? Unless you are a lawyer for the anti-gay side I doubt you would be sad about that.

  3. Bill S. says

    I disagree that DOMA creates “a single federal definition of marriage.” The federal government still defers to each state’s definitions of marriages despite their differences (e.g. age, fist-cousin marriages, etc.) and has modified definitions tailored to the nature of specific provisions of federal law (e.g. age for social security benefits, years married for immigration regulations, etc. etc.).

    DOMA does not create one, across-the-board standardized federal definition of marriage. It simply prohibits the federal government from ever recognizing any same-sex marriage, no matter what.

  4. Bingo says

    I’m not sure that “the real question” may be the level of scrutiny. I expect heightened scrutiny to be rejected and then GLAD to win on rational basis plus. The heightened scrutiny argument just gives the court something to turn down, which is always good strategy.

  5. says

    Bill: Section 3 specifically creates a definition of marriage for Federal purposes:

    Section 3. Definition of marriage
    In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.

    How is a definition of marriage not a definition of marriage?

  6. Jay says

    What do I think? I think you are being absurdly optimistic if you think that Thomas is going to say that Section 3 of DOMA is unconstitutional.

    You also fail to note that Kagan has said that she will recuse herself from DOMA cases. That actually makes possible (and perhaps) likely a 4-4 decision. If so, that would uphold the lower court’s decisions that Section 3 is unconstitutional, but would have no precedential power.

    If Romney is elected President, it is unlikely that his administration would dismantle DOMA on a 4-4 decision.

    Indeed, the other wild card here is the election. If Romney wins, his Department of Justice is likely to switch sides and defend the constitutionality of DOMA. How would that affect the proceedings?

  7. bobbyjoe says

    Ari writes: “That argument should appeal to those conservatives (perhaps, Chief Justice Roberts and Justices Kennedy and Thomas) not so blinded by their antigay animus.”

    … and Thomas?

    Okay, now you’re just being funny.

  8. says

    As we learned in the Affordable Care Act case, a win is a win is a win. If Kagan didn’t recuse in that case why should she recuse in this one? DOJ had made the switch to thinking DOMA was unconstitutional after she was on the Court, I believe.

    DOMA fails rational basis review AND under heightened scrutiny.

  9. Icebloo says

    I have no faith in the Supreme Court doing the right thing. It’s always been weighted to the right and their often terrible and ill conceived decisions have brought much suffering onto millions of Americans. The whole system is broken and corrupt.

  10. Bill S. says

    KEVINVT: DOMA places *a* restriction on the federal definition of marriage but it still does not create a single, standardized definition for federal purposes. That “legal union between one man and one woman” could be between first cousins as some states allow even though other states do not, or between people of a certain age even though they wouldn’t be allowed to get married in another state.

    Even for the purposes of specific federal laws, the government will not recognize certain marriages (such as for immigration purposes you must have been married for at least a year).

    DOMA creates an exception to federal recognition; it does not affirmatively determine who may or may not marry.

  11. says

    I think the idea that Roberts is relying on his decision in Sebelius to insulate him from charges of partisanship is making a wrong assumption. Finding ACA constitutional is really in line with Roberts’ corporatist approach — I’m sure the insurance industry would not be happy at losing several million customers if the mandate were struck down.

  12. NVAgBoi says

    Honestly, I think that a lot of the outcomes in any DOMA suit before SCOTUS may well depend on the decision the Court makes (or thinks it might miake later) on the grant of Certiorari in Perry. I could see the Scalias of the world frightening the Roberts and Kennedys of the world with the thought that the application of heightened scruitny may suddenly be applied in like cases to Perry…something I think they would balk at. (Gasp, the Constitution grant the right to gay marry? Never! Strict constructionist originalism for us!) If SCOTUS skirts the sruitny issue and Roberts pulls another ACA-like move, he might side with declaring DOMA unconstitutional on the States Rights side (the Mass. case), giving a win while still being able to claim that he’s a, shall we say, compassionate conservative.

  13. Kent says

    Jay, is there a source for that? I’ve looked online, but couldn’t find anything but speculation that Kagan MAY recuse herself from DOMA cases. I hope she doesn’t – I feel that if Section 3 is overturned, it will be by a very close vote.

  14. Paul says

    Jay: It isn’t true at all that Kagan said she would recuse herself in all DOMA cases. She was asked about a particular case (Smelt v. United States) and she said she was involved in THAT case to such an extent that it would create a conflict of interest if gets appealed to the Supreme Court saying “My participation in the case was sufficiently substantial that I would recuse myself if I were confirmed and this case were to come before the Court”

    Smelt never made it to the Supreme Court.

  15. Jay says

    Nan Hunter says that Kagan will recuse herself from DOMA cases:

    “The most important case – and the one with the biggest question mark – is Gill v. OPM, in which a federal district court ruled that Section 3 of DoMA (barring federal recognition of same-sex marriages) is unconstitutional. This case is very likely to reach at least the front door of the Supreme Court, by which I mean that a cert petition will almost certainly be filed by whichever party loses in the Court of Appeals. If the First Circuit affirms the district court, the Supreme Court will probably grant review. And it’s a virtual certainty that plaintiffs can’t get five votes on this Court without one from Justice Kagan.

    Kagan told the Senate Judiciary Committee that she would recuse herself from a case if she had “participated in formulating the government’s litigating position or reviewed a draft pleading. In all other circumstances, I would consider recusal on a case-by-case basis.”

    With regard to Smelt, she said “I reviewed some briefs in the Smelt case and participated in discussions about the case shortly before the briefs were filed. My participation in the case was sufficiently substantial that I would recuse myself…”

    She was then asked whether she reviewed briefs or participated in discussions about Gill. Her response: “Yes, I believe that discussions about Gill overlapped with discussions about Smelt.”

    In other words, recusal in Gill is certainly a possibility.

    In a later post, Hunter said that Kagan’s recusal was more than just a possibility. She said DOMA cases would be decided without Kagan.

    See Hunter’s blog, Hunterforjustice.

    Of course, I hope that Kagan does not recuse herself, but it seems that she will. She is more ethical than people like Scalia and Thomas who routinely sit on cases where they have conflicts of interest and have already pre-judged the outcomes.

  16. Paul says

    Kagan told the Senate Judiciary Committee that she would recuse herself from a case if she had “participated in formulating the government’s litigating position or reviewed a draft pleading. In all other circumstances, I would consider recusal on a case-by-case basis.”

    In fact, the government’s current litigation position with regard to DOMA certainly wasn’t formulated by Kagan in any part as it is a complete departure from the position during her tenure. She certainly had nothing to do with the other myriad of cases that are being appealed directly to the court as those were all filed after her tenure ended.

  17. Randy says

    While I believe heightened scrutiny is applicable to discrimination based on sex (which necessarily includes sexual orientation), I do think the case should be decided on the broadest terms possible, which by your comments would be rational basis plus. So that’s what I want them to use, without addressing whether heightened scrutiny is applicable — unless you’re wrong, and heightened scrutiny is required for us to win.

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