By Marcia Coyle
The legal landscape on which gay marriage battles are being fought shifted dramatically on Wednesday with the announcement that the U.S. Department of Justice will no longer defend the constitutionality of the federal Defense of Marriage Act.
Attorney General Eric Holder, in a letter to Congress, said President Barack Obama had concluded that the law failed to meet a heightened standard of scrutiny and was therefore unconstitutional. The law, commonly known as DOMA, defines marriage for federal purposes in Section 3 as only between a man and a woman.
Reaction to Holder’s announcement followed swiftly and ranged from pure elation from civil rights and gay and lesbian groups to anger and determination to fight for the law from some members of Congress and traditional marriage advocates.
“It’s a lawyer’s decision based on a careful consideration of the law,” said Paul Smith, head of the Supreme Court and appellate practice at Jenner & Block, and counsel with Gay & Lesbian Advocates & Defenders in a DOMA challenge now pending in the U.S. Court of Appeals for the 1st Circuit.
“There was only one right answer,” he said. “When you examine the law and which groups need heightened protection under the equal protection clause, you realize that sexual orientation is one of those kinds of discrimination that is suspect. There really was no way for them to defend Section 3 of DOMA because the law doesn’t serve any purpose other than to stigmatize persons.”
But signaling that the legal fight is far from over, House Judiciary Chairman Lamar Smith (R-Texas) countered, “There is no rule that requires the Justice Department to apply a higher standard of proof in these cases. And yet, DOJ has decided to apply that standard as an excuse to avoid defending the law. In other words, the Administration built a wall so that it could complain that it’s too tall to climb.”
Congress itself may attempt to intervene and defend the law in pending litigation, said gender discrimination scholar Nan Hunter of Georgetown University Law Center.
“I don’t know whether there has to be a vote of one chamber or both, but certainly members are going to seek to intervene even if there’s no official vote,” said Hunter. “This law will be defended, which I actually think is the correct outcome. Although it would be to their credit if all members took a pass, you are talking about the constitutionality of a federal statute which should be decided by an appellate court, not a district court. That said, I think it highly unlikely that any of the three circuits with pending DOMA cases will uphold its constitutionality given the department’s position.”
Judiciary Chairman Smith is one likely candidate to intervene. In October, he moved to do so in two pending 1st Circuit cases because, he argued, the Justice Department was not adequately defending the law. He withdrew his motion two weeks later, after the department filed a notice of appeal.
A spokeswoman for Smith said his lawyers would need to review the cases pending in the 2nd Circuit before making any decision to try to intervene. Representing Smith in the 1st Circuit were three lawyers from the conservative Alliance Defense Fund, including senior counsel Brian Raum, and a solo practitioner from Salem, Mass., Philip Moran.
A spokesman for House Speaker John Boehner (R-Ohio), to whom Holder addressed a letter explaining the administration’s decision, did not immediately respond to a request for comment.
The Justice Department was forced to face the question of what constitutional standard of review should be applied to sexual orientation classifications because of two DOMA challenges filed in federal district courts in the 2nd Circuit. That circuit, said Holder in his letter to Boehner, “has no established or binding standard for how laws concerning sexual orientation should be treated.” And the Supreme Court has not determined what level of scrutiny to apply even in two decisions striking down anti-gay state laws: Lawrence v. Texas and Romer v. Evans.
The department’s strategy in DOMA cases pending in the 1st and 9th circuits, said Georgetown’s Hunter, has been to rely on circuit precedent. There is precedent in both circuits that says as to equal protection, the standard is rational basis.
“They were very, very careful to say in their briefs `binding circuit precedent,’” she explained. “Then they got into the 2nd Circuit— a game changer. The Justice department didn’t have any binding circuit precedent at all. It was very smart litigating on behalf of the advocates.”
The Supreme Court has articulated three levels of review of classifications of groups: rational basis (the lowest level of scrutiny), heightened or intermediate scrutiny, and strict scrutiny (the most searching review).
In his letter, Holder noted four factors laid out by the Court for the application of heightened scrutiny, including a documented history of discrimination. He said that Obama agreed with his recommendation that those factors supported heightened scrutiny of classifications based on sexual orientation.
“Much of the legal landscape has changed in the 15 years since Congress passed DOMA,” wrote Holder. “The Supreme Court has ruled that laws criminalizing homosexual conduct are unconstitutional. Congress has repealed the military’s Don’t Ask, Don’t Tell policy. Several lower courts have ruled DOMA itself to be unconstitutional.”
Section 3 of DOMA, he said, will remain in effect and will be enforced unless Congress repeals it or there is a final judicial finding that strikes it down. “But while both the wisdom and the legality of Section 3 of DOMA will continue to be the subject of both extensive litigation and public debate, this Administration will no longer assert its constitutionality in court.”
Holder is required by law to inform Congress when the department decides not to defend an act of Congress.
The two cases in district courts in the 2nd Circuit are: Pedersen v. OPM and Windsor v. U.S. The Pedersen challenge is being handled by Gay & Lesbian Advocates & Defenders (GLAD). The Windsor case was brought by Edith Windsor who sued the federal government for refusing to recognize her marriage of 44 years and imposing a $350,000 tax on her late spouse’s estate, a tax Windsor would not have had to pay had she been married to a man. That case is being handled by the American Civil Liberties Union, the New York Civil Liberties Union, and Paul, Weiss, Rifkind, Wharton & Garrison.
Besides the Pedersen and Windsor cases, the Obama Administration’s decision also could affect Gill v. OPM and Massachusetts v. U.S., both pending before the 1st Circuit. The Massachusetts case was brought by that state’s attorney general.
The Gill case is being handled by GLAD and, as with the Pedersen litigation, Jenner & Block, Foley Hoag, Boston’s Sullivan & Worchester, Washington’s Kator, Parks & Weiser, and Horton, Shields & Knox in Hartford, Conn.
A third case, Golinski v. OPM, brought by Lambda Legal, is pending in district court in the 9th Circuit.
Reporter David Ingram contributed to this article.