Sunday, February 17, 2013

Obama’s Next Choice on Gay Marriage: His DOMA Brief

It is expected that the Obama administration will file a brief to the U. S. Supreme Court supporting the lower court rulings that DOMA is unconstitutional (the deadline for filing a brief supporting DOMA has already passed).  The question becomes how strong of an argument against DOMA the Obama administration will make.  One observe believes that a forceful argument should be expected.  A column in The New Yorker looks at the situation.  Here are excerpts:

Ever since President Obama’s sweeping embrace of gay equality in his recent Inaugural Address, the question for legal observers has been whether his Justice Department will follow up with Supreme Court arguments to match. The Court is scheduled to hear arguments in two potentially seminal gay-marriage cases next month, and the Administration is facing an important strategic legal decision. In its Supreme Court arguments, should the government align itself with the most aggressive gay-rights advocates or, alternatively, position itself as a more neutral or disinterested gay-marriage observer? It doesn’t have long to decide: briefs are due on February 28th.

The question, as Jeffrey Toobin wrote last month, is whether he and his Administration “believe that gay people have the constitutional right to marry, whether or not state legislators grant it to them”—whether the federal government should just abide by state laws legalizing same-sex marriage, by overturning the Defense of Marriage Act, or, more powerfully, by saying that every American has that right. The president’s speech last month raised the stakes, and it now appears likely that Obama will choose the bolder course and submit an aggressive brief in favor of full gay equality. The reason is as much political as it is legal: the importance traditionally placed on having the legal arguments made by the Justice Department line up with the President’s broad policy formulations.

If Obama’s Justice Department acts boldly, it could have sweeping legal and political implications for years to come. If it doesn’t, the Court will wonder why he is reluctant to back up his policy ideas with legal arguments to match. It will likely send a message that the President questions whether the country is ready for gay marriage, and send a signal that a more cautious approach by the Court is acceptable to the White House.

One of the cases up for review is not really a gay-marriage case at all. The question before the judges in Edith Windsor vs. United States is whether the government can deny federal recognition to otherwise valid, state-sanctioned same-sex marriages. Because a federal law (namely, DOMA) is being challenged, the federal government is a party to the case and has had to take a position. The Department of Justice first defended the law, then reversed course and now supports Windsor—a sympathetic and charismatic widow who had to pay hundreds of thousands of dollars in taxes because the federal government, unlike the State of New York, did not recognize her marriage. Republicans in the House of Representatives have now stepped in to organize a defense of the law. 

The important issue here, in technical terms, will be what standard of legal review is articulated, and whether DOMA passes it. The government has now taken the position in Windsor that sexual-orientation classifications, when challenged on constitutional grounds, should be examined very carefully by courts and set aside unless a strong argument can be made in their defense. This is what is sometimes called a “heightened scrutiny” test, and its application most often determines the outcome.

The Justice Department has three different arguments it can make in favor of affirming the lower courts’ rulings overturning Prop 8, and it can advance all three, as will the plaintiffs in the case.

One argument is narrowly procedural. It involves the legal doctrine known as “standing,” which essentially requires the entity bringing the appeal to have a sufficient and legally cognizable interest in the outcome.

A second line of argument would result in a substantive ruling—but one with limited scope. It is that the Supreme Court should merely affirm the limited reasoning of the intermediate appellate court’s ruling in the case, which held not that there was a constitutionally guaranteed right to same-sex marriage but that the State of California acted impermissibly in withdrawing that right by way of a state constitutional amendment after it had previously granted it. This argument also means that same-sex marriage returns only to California.

The third argument is sweeping, in tune with the President’s Inaugural Address, and, if accepted by the Court, would lead to the eventual overturning of all state-level anti-gay-marriage laws. It would involve the government arguing, as in Windsor, that the heightened-scrutiny test should be applied to Proposition 8, the logical extension of which is a rejection of Prop 8’s marriage restriction, as its only justification is based on the weak rationale of custom or, worse, prejudice.
That argument, I believe, is one the Justice Department will boldly make to the U.S. Supreme Court in the Proposition 8 case.

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