Attorney General Eric Holder has sent a letter notifying Congress that the administration now believes that Section 3 of the federal Defense of Marriage Act – the law that prohibits the federal government from recognizing same-sex marriages – is unconstitutional.
The letter is entitled Letter from the Attorney General to Congress on Litigation Involving the Defense of Marriage Act and is addressed to John Boehner, Speaker of the House. Attorney General Holder informs the Speaker that the administration will continue to enforce DOMA and will continue to defend it in federal circuits that have already upheld the law, but will not defend the law in jurisdictions such as the Second Circuit where its constitutionality has not heretofore been tested.Â
The administration's position is very simple. Because the statute discriminates on the basis of sexual orientation, it is subject to "heightened scrutiny," and under that standard no reasonable argument can be made in support of the constitutionality of the law; in other words, no reasonable person could conclude that there is an important reason to deny gays and lesbians the right to marry. Under the rational basis test a reasonable person could argue that the law is constitutional, and if the courts decide to apply that standard of review then the administration will defend the law.
The administration is actually taking a very nuanced stance. The administration is not threatening to withdraw from the litigation. If a district court strikes down the law the administration has not stated that it will refuse to file an appeal, like Governor Schwarzenneger and State Attorney General Brown did in the Prop 8 case. The administration is simply saying that it will not make arguments defending the law unless the courts find that rational basis is the appropriate standard of review. The operative paragraph of the letter states:
If asked by the district courts in the Second Circuit for the position of the United States in the event those courts determine that the applicable standard is rational basis, the Department will state that, consistent with the position it has taken in prior cases, a reasonable argument for Section 3âs constitutionality may be proffered under that permissive standard. Our attorneys will also notify the courts of our interest in providing Congress a full and fair opportunity to participate in the litigation in those cases. We will remain parties to the case and continue to represent the interests of the United States throughout the litigation.
My initial reaction to news reports about this decision was negative. Under the Constitution the President has the duty to faithfully execute the law, and the President has no power to declare a law unconstitutional. But this letter demonstrates a very careful and measured response to the situation. The administration promises to continue to enforce the law and will keep the courthouse doors open to defense of the statute; it will be up to members of Congress or other interested parties to argue on behalf of the constitutionality of the law. The courts will still have a full and fair opportunity to determine whether the law is constitutional.
Holder's argument against the constitutionality of the law invokes standard Equal Protection doctrine. "Heightened scrutiny" is appropriate when legislation is directed against a group that is has been historically discriminated against, that lacks the political power to defend itself through the legislative process, and which is discriminated against on account of a trait that is immutable and that is unrelated to the ability to contribute to society or to legitimate governmental objectives. All four of these indicia of "suspectness" are present in this case, and the law is therefore properly regarded with "suspicion." Here is the key portion of Holder's letter on this point:
The Supreme Court has yet to rule on the appropriate level of scrutiny for classifications based on sexual orientation. It has, however, rendered a number of decisions that set forth the criteria that should inform this and any other judgment as to whether heightened scrutiny applies: (1) whether the group in question has suffered a history of discrimination; (2) whether individuals âexhibit obvious, immutable, or distinguishing characteristics that define them as a discrete groupâ; (3) whether the group is a minority or is politically powerless; and (4) whether the characteristics distinguishing the group have little relation to legitimate policy objectives or to an individualâs âability to perform or contribute to society.â See Bowen v. Gilliard, 483 U.S. 587, 602-03 (1987); City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 441-42 (1985).ÂEach of these factors counsels in favor of being suspicious of classifications based on sexual orientation.
Applying the standard of review to the facts, the administration doesn't seem to think that there is any legitimate reason to deny gays and lesbians the right to marry; rather, DOMA was enacted purely and solely to express "moral disapproval" of same-sex relationships. The letter states:
the legislative record underlying DOMAâs passage contains discussion and debate that undermines any defense under heightened scrutiny. The record contains numerous expressions reflecting moral disapproval of gays and lesbians and their intimate and family relationships â precisely the kind of stereotype-based thinking and animus the Equal Protection Clause is designed to guard against.vii See Cleburne, 473 U.S. at 448 (âmere negative attitudes, or fearâ are not permissible bases for discriminatory treatment); see also Romer, 517 U.S. at 635 (rejecting rationale that law was supported by âthe liberties of landlords or employers who have personal or religious objections to homosexualityâ); Palmore v. Sidotti, 466 U.S. 429, 433 (1984) (âPrivate biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect.â).
This argument – that the law was enacted not for any objective reasons but solely because of prejudice – is inconsistent with the administration's promise to defend the law if the courts find that the rational basis test is the appropriate standard.
Nevertheless, the scope of the Attorney General's letter is limited. The President and the Attorney General do not assert that there is a constitutional right for gay and lesbian couples to marry – that state laws and state constitutions that deny this right are in violation of the 14th Amendment. They simply assert that it is unconstitutional for the federal government to deny recognition to same-sex marriages that were entered into under state law. Their carefully crafted conclusion states:
the President and I have concluded that classifications based on sexual orientation warrant heightened scrutiny and that, as applied to same-sex couples legally married under state law, Section 3 of DOMA is unconstitutional.
Another aspect of this matter that the Attorney General does not address is state sovereignty – the fact that DOMA represents an intrusion into a matter of traditional state concern, the definition of marriage. Congress has no power under the Constitution to define who may and who may not marry. That is up to the states. It could be argued that under the Spending Clause Congress may choose to subsidize certain marriages and not others, but that simply emphasizes the federalism concerns that attend this Equal Protection claim. But I suppose it would be anomalous for the chief law enforcement officer of the federal government to concede that this is primarily a matter of state concern.
Professor Huhn has taught Constitutional Law at the University of Akron for over a quarter century. You may access his websites on Constitutional Law and Health Care Financing Reform for additional materials and information about those subjects. Drafts of his scholarly work are available from his author page at ssrn: http://ssrn.com/author=83790
{ 6 comments }
I was actually going to support the President in not shirking his duty to uphold the Constitution even in the face of a law that he believes is unconstitutional. But, he doesn’t really do that. In one part he states “The President has also concluded that Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional,” but then goes on to state “the President has informed me that Section 3 will continue to be enforced by the Executive Branch.” I cannot reconcile the holding of those two positions with the President’s duty to preserve, protect, and defend the Constitution.
It’s not exactly surprising that the AG doesn’t raise the state sovereignty issue, especially with all the challenges to the individual mandate pending. Congress’s attempt to regulate marriage is very similar to what it has done on the health care issue. First, they enact tax and spending provisions that use marital status as a condition to determine special treatment. Then, use those provisions as a justification for their authority to regulate the marital relationship. In the health care arena, they have tried to adopt the similar approach of using spending laws to bootstrap regulations – (1) create a massive spending program such that almost all doctors have to participate in the program to be economically competitive (2) condition doctors’ participation in the spending program on them treating non-credit-worthy patients, then (3) claim that the costs associated with treating non-credit-worthy patients impose such a burden on interstate commerce that a person’s mere existence is an activity that affects interstate commerce because at some point in the future they may become a non-credit-worthy patient.
While I think there is a pretty good argument for invalidating DOMA on grounds that it exceeds Congressional power, I think the AG’s opinion is so detached from the text of the Constitution that it is indefensible. It is simply not possible to make a rational argument that DOMA, or any federal enactment, is unconstitutional because it violates equal protection principles without the plain implication that the Equal Protection Clause has no meaning or effect.
P.O.L.,
There is more than one constitutional principle at work here – equal protection AND separation of powers – and the President has in my opinion appropriately balanced them. Until the courts strike down a law the President must enforce it and should defend it in court. If the President finds it impossible to defend the law on certain grounds then it is appropriate for him to say so. I do not agree that the President has the authority to simply refuse to enforce a law that he or she believes is unconstitutional. That leads to dictatorship, and we saw quite enough of that disobedience to law under the previous administration – illegal wiretapping and torture in secret, and the blatant disclosure of a secret agent's identity, all in contemptuous disregard of the rule of law, distorting the theory of the "unitary executive" to mean that the President is above the law. So it is with caution that I approve of the current President's decision not to advance certain arguments on behalf of DOMA. While the courts are likely to declare this law unconstitutional, it is critical, I believe, for the President to continue to obey the law and prosecute the appeals so that this matter may be brought to the Supreme Court if it decides to grant certiorari.
On balance, even though I believe that DOMA violates Equal Protection, I think that DOMA is within Congress' power under the Spending Clause. Unlike health care mandates, the definition of marriage is a matter that has traditionally been considered within the domain of the states. On the other hand, unlike the Commerce Clause, the Spending Clause (at least where it concerns the granting of federal funds to private entities) has not been subjected to federalism constraints. Congress' discretion under the Spending Clause is vast, even to the point of requiring private recipients of federal funds not to engage in First Amendment activities such as abortion counseling. If Congress believes that it will serve the "general welfare" to subsidize certain types of marriage relationships, that is probably within its power. Of course, that power must be exercised in a manner consistent with Equal Protection, and I agree with the President that this law violates Equal Protection.
I am not sure what you are saying in the last sentence of your comment. The Supreme Court has held that the Federal Government is subject to the same constitutional restraints as the states – that the Fifth Amendment incorporates the principles of Equal Protection. That seems to me eminently reasonable. In the words of the Court, it would be "unthinkable" that the federal government should be permitted to disciminate on the basis or race, gender, or other factors denied to the states. I doubt that the framers of the 14th Amendment intended to allow the federal government such discretion. They did not fight the Civil War so that the federal government would be permitted to ignore the precept that "all men are created equal." But perhaps I have misconstued your point.
I believe the risk posed by a Congress that intentionally passes unconstitutional laws or a President that intentionally enforces unconstitutional laws poses similar risks of tyranny as a President who refuses to enforce an unconstitutional law.
The point of my last sentence was that to reach the conclusion that the Supreme Court reached in Bolling, one must almost necessarily believe that the Equal Protection Clause is surplusage. The only way to reach that conclusion without rendering the Equal Protection Clause irrelevant is to believe that “No person shall . . . be deprived of life, liberty, or property, without due process of law,” embodies equal protection, while “nor shall any State deprive any person of life, liberty, or property, without due process of law,” does not embody equal protection. If the former embodies equal protection, it is difficult to say how the latter does not. And if the latter embodies equal protection, then the Equal Protection Clause could be deleted in its entirety without affecting the meaning of the Constitution.
It was not “unthinkable” for Congress to exclude itself from application of the Equal Protection Clause, if for no other reason than those in Congress proposing the amendment were, like many, unwilling to constrain their own power. But ultimately, whether or not the framers of the 14th Amendment intended to constrain the federal government is irrelevant, the text of the Constitution makes clear that they did not. Even within the same section of the 14th Amendment, the framers made a clear distinction between a “State” and the “United States,” and they plainly imposed no restriction on the United States in the sentence dealing with privileges/immunities, due process, and equal protection.
On January 20, 2009, as required by Article 2 of the U.S. Constitution, took the following oath:
I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.
Obama's new policy on DOMA, announced in the letter from the Attorney General, constitutes a violation of this oath. If the President sincerely believes that Section 3 of DOMA is unconstitutional such that he will not defend that law in the two new cases pending in the federal courts, then he is required to cease enforcing the law.
The suggestion by the Professor that the President is required to enforce unconstitutional laws until the Supreme Court affirms the President's decision is nonsense. Such a conclusion would make the presidential oath meaningless. The president takes an oath to defend the Constitution, not the Supreme Court.
P.O.L.
If we could ask Representative Bingham or Senator Howard or any of the other leading Republicans of the 39th Congress, "Do you believe that Congress has the power to deny equal protection of the laws to American citizens," what do you suppose they would say? What would Lincoln have said about the power of the federal government to violate the principle "all men are created equal'? Textual analysis is the starting point but not the ending point of constitutional analysis. Intent also matters, and we can find abundant evidence of that intent in the debates in Congress, public speeches, and Republic Party platforms of the time.
Quidpro,
I concede the logical consistency of your position, but not its correctness. You fail to take account of the fact that Presidents may have many opinions about the proper interpretation or constitutionality of various laws. Do you wish to submit to a government where the executive branch has the power to say what the law is?
“If we could ask Representative Bingham or Senator Howard or any of the other leading Republicans of the 39th Congress, "Do you believe that Congress has the power to deny equal protection of the laws to American citizens," what do you suppose they would say?”
What possible relevance does this have? Why would we single out the drafters of the 14th Amendment and not subsequent or earlier amendments? With regard to the federal government’s obligation to provide equal protection of the laws, the 14th Amendment imposes just as much of an obligation as say the 12th or 27th, which is to say it doesn’t address it at all. Should the framers have included it? Yes. Did they? No. Why didn’t they? Who knows, maybe since Congress hadn’t enacted any black codes at the time, the framers didn’t see it as one of the specific issues that needed to be addressed. Maybe, at a time when they were imposing martial law and denying southerners equal participation in Congress, they thought southerners might attempt use the amendment to attack aspects of Reconstruction.
“What would Lincoln have said about the power of the federal government to violate the principle "all men are created equal'? “
Who cares? Lincoln was dead well before the 14th Amendment was proposed or ratified. Even if he had been President, he would not have been involved in proposing or ratifying the amendment. Or, do you believe the framers intended that the Presidential approval be required to amend the Constitution, so it is required even though it wasn’t mentioned in Article V? I’m sure they meant include it but just forgot, so we'll just fabricate a requirement because we shouldn’t feel constrained to just looking at the text.
“Textual analysis is the starting point but not the ending point of constitutional analysis. Intent also matters, and we can find abundant evidence of that intent in the debates in Congress, public speeches, and Republic Party platforms of the time.”
For the sake of argument, I will assume that intent (or any of the other commonly employed methods (precedent, purpose, tradition, etc)) is a valid means for interpreting the Constitution. If we are to be governed by laws and by a written constitution, the only possible legitimacy an interpretive method has is to assign meaning to the words actually present in the Constitution (e.g., what did the framers mean by “equal protection?”) But, you are not interpreting the Constitution; you are ignoring the Constitution. You make no attempt to attach meaning to the words actually in the Constitution, but instead simply apply principles that, however noble they may be, are simply not suggested anywhere by the text. It is clear from your position that you don’t just believe the Equal Protection Clause is surplusage, but that the entire text of the Constitution is surplusage.
The Republican Party platforms of the time advocated completion of the transcontinental railroad. Does that mean Congress must forever assure the existence of such a rail line? I think you have to agree that there are just as many provisions in the text of the post-civil war amendments dealing with the transcontinental railroad as there are dealing with the requirement that the federal government provide equal protection of the laws. I guess we must assume that every good idea the framers held was intended to be incorporated into the constitution, right?
Comments on this entry are closed.