In the wake of Attorney General Eric Holder’s February 23 announcement that President Barack Obama and the Department of Justice (DOJ) had concluded that disparate treatment under the law based on sexual orientation should be subject to heightened judicial scrutiny — a standard under which they view the federal Defense of Marriage Act as unconstitutional — the Boston-based 1st Circuit Court of Appeals has been notified that the government will “cease its defense” of the statute in two consolidated DOMA cases where it had previously participated.
The Gay & Lesbian Advocates & Defenders (GLAD), which brought a lawsuit on behalf of eight married gay and lesbian couples and three widowers from Massachusetts in tandem with that state suing the federal government, noted that DOJ has not yet informed Congress that it will not defend DOMA “in toto” in response to Gill v. Office of Personnel Management and Massachusetts v. Department of Health and Human Services. That led that group to warn that the notification to the 1st Circuit “may only apply to the extent the court determines that heightened scrutiny is the proper standard of review for DOMA’s constitutionality.”
Not yet clear how government would respond if 1st Circuit insists on rational basis review
The plaintiffs in Gill and Massachusetts v. HHS prevailed at the district court level last year, and the consolidated cases currently are before the 1st Circuit Court of Appeals.
The DOJ position announced on February 23 applied to lawsuits brought in New York and Hartford, which are part of the 2nd Circuit. There is no binding precedent in that circuit for how sexual orientation bias claims should be evaluated.
The precedent in the 1st Circuit and in other circuits where DOJ has defended DOMA is that sexual orientation classifications in law must merely meet the rational basis standard, whereby a law is presumed constitutional unless a plaintiff challenging it can show there is no plausible rationale to justify it.
In defending DOMA in Gill, DOJ argued that it was rational in 1996, when DOMA was enacted, for Congress to preserve the status quo on the definition of marriage to maintain the federal government’s neutrality as states considered how to address demands by the gay and lesbian community for equal marriage rights. (Imposing a federal definition of marriage, however, was anything but the status quo — in fact, it was unprecedented — and by choosing a traditional definition over evolving notions of family, the federal government was not acting in a neutral fashion.)
In announcing its new posture on DOMA earlier in the week, Holder emphasized that the lack of a binding precedent led DOJ and the president to conduct a new analysis of the statute and of the issue of sexual orientation bias generally. As the GLAD release indicates, there remains some question as to whether the administration might proceed with a defense of the statute should a circuit court impose a rational basis standard. The open question, then, is, having declared that DOMA violates the equal protection rights of gay and lesbian couples, would DOJ fall back on what was widely seen as a weak, even disingenuous rational basis defense if its lawyers were barred from making a heightened scrutiny argument.
In a February 24 letter to the 1st Circuit clerk, Assistant Attorney General Tony Clark wrote, “The Attorney General and the President have concluded: that heightened scrutiny is the appropriate standard of review for classifications based on sexual orientation; that, consistent with that standard, Section 3 of DOMA may not be constitutionally applied to same-sex couples whose marriages are legally recognized under state law; and that the Department will cease its defense of Section 3 in such cases.”
That formulation does not make it crystal clear what DOJ’s posture would be if heightened scrutiny were not the standard imposed by a court.
The Department of Justice did not immediately return a call seeking comment on this question.
“It is increasingly clear to everyone what has been clear to gay and lesbian families for years — that DOMA’s denial of protections available to all other married families is discriminatory, harmful, and unjustifiable,” Mary L. Bonauto, GLAD’s civil rights project director who is the lead attorney on the Gill case, said in a written statement on February 25. “DOJ’s acknowledgement of this is momentous. At the same time, we know this isn’t the end of the road.”