As reported in yesterday's post, the House of Representatives has filed briefs in the case of Windsor v. United StatesÂ in federal district court in New York.Â Yesterday's post described the House'sÂ Answers to Interrogatories.Â Â Today's post summarizes the House'sÂ Brief in Opposition to Plaintiff's Motion for Summary Judgment.
The summary judgment brief filed by theÂ House of Representatives is long on process but short on substance.Â The House focuses nearly exclusively on the threshold question "Are same-sex couples a suspect class?"Â It devotes almost no attention to the question, "Is there a legitimate reason for the federal government to deny recognition to same-sex marriages?"
1.Â Are same-sex couples a suspect class?
The first heading in the House brief on this subject makes a bold yet doubtful claim:
Persuasive Authority Unequivocally Supports the Conclusion that Homosexuals Clearly Are Not a Suspect or Quasi-Suspect Class
Before turning to substance of this claim, I have a couple of quibbles with the wording of the House'sÂ argument.Â First of all, it would be more respectful to use the term "gays and lesbians" rather than the term "homosexuals."Â Under the circumstances the House attorneys should be careful about how they refer to their opponents.Â Second, every first-year law student learns that the adverb "clearly" is a red flag for lawyers.Â Clear propositions are self-evident – unclear ones need semantic enhancement.Â And an examination of the case law reveals that the House lawyers are considerably overstating, if not misstating, the state of the law.
ExistingÂ case law does not "unequivocally" establish that sexual orientation is not a suspect classification; instead the recent trend of judicial decisions are "clearly" going the other way.Â Recent cases either applying heightened scrutiny or finding it unnecessary to apply the higher standard include:
In re Marriage Cases, 43 Cal.4th 757 (2008)Â (striking down state laws prohibiting same-sex marriage under strict scrutiny)
Kerrigan v. Commissioner of Public Health, 289 Conn. 135 (2008)Â (applying intermediate scrutiny in striking down state law prohibiting same-sex marriage)
Varnum v. Brien, 767 N.W.2d 862 (Iowa 2009) (applying intermediate scrutiny to strike down state law prohibiting same-sex marriage)
Perry v. Schwarzenegger ["Prop 8 case"], (Northern District California, 2010) (finding strict scrutiny applicable, but striking down Proposition 8 because it lacks a rational basis)
Gill v. Office of Personnel Services, 699 F.Supp.2d 374 (D. Mass. 2010) (striking downÂ DOMA on the ground that it lacks a rational basis and not reaching the question whether sexual orientation constitutes a suspect classification)
Log Cabin Republicans v. United States, (Central District of California, September 9, 2010) (applying heightened scrutiny in striking down "Don't Ask, Don't Tell")
Major Margaret Witt v. United States Department of the Air Force, (Western District of Washington, September 24, 2010) (applying heightened scrutiny in striking down "Don't Ask, Don't Tell")
These decisions constitute "persuasive authority" for the proposition that gays and lesbians are a suspect class – that they deserve and need protection by the courts from hostile legislation.Â At a minimum the relevant precedent is not "unequivocally" in favor of the rational basis test.
Turning from precedent to doctrine, the House brief then asserts that gays and lesbians satisfy none of the four requirements for being a suspect class, elements thatÂ the brief correctly identifies as "History of Discrimination," "Ability to Participate in or Contribute to Society," "Immutability," and "Political Powerlessness."Â This portion of the brief constitutes by far the greatest proportion of the 25-page brief in support of DOMA.Â In contrast, less than two pages of the brief – pages 23-24 – address the substantive reasons supporting the constitutionality of the law.Â The House's arguments on each element of suspect class analysis are summarized below.
a.Â History of Discrimination
The House of Representatives contends that the history of discrimination against gays and lesbians is relatively recent in origin and is rapidly dispersing.Â First, the House brief agrees with one of plaintiff's experts that discrimination against gays and lesbians
is a unique and relatively short-lived product of the twentieth century.
Then, the House observes that
whatever the historical record of discrimination, the most striking factor is how quickly things are changing.
This argument may serve to strengthen the House's contention that sexual orientation is not a suspect class, but it completely undercuts the principal argument relied upon by Supreme Court Justices like Antonin Scalia that discrimination against gays is lawful because of longstanding moral traditions.Â The House brief virtually embraces Justice Kennedy's finding of an "emerging awareness" of the essential equality of gays and lesbians.Â The House is choosing toÂ characterize the discrimination of which DOMA is a product as a short-lived aberration of American history rather than a longstanding and brutally enforced cultural and religious taboo.Â ThisÂ litigation strategy is the forensic equivalent of an "own goal."
b.Â Ability to Participate in or Contribute to Society
The House brief on this point is less than a page long.Â The key sentence is:
The Congress who enacted DOMA and the President who signed it obviously thought that the classifications drawn by DOMA were relevant and rationally related to several legitimate legislativeÂ goals.Â
In this brief the House does not bother to state what those goals are.Â Instead,Â the House brief merely incorporates by reference its other brief, the Response to Interrogatories described in yesterday's post.Â That brief merely set forth a list of goals such as defending the institution of marriage but it made no effort to offer any evidence tending to prove that gays and lesbians lack the ability to participate in or contribute to either to the institution of marriage in particular or to society in general.Â The House simply punts on this point, essentially conceding the issue to the plaintiffs.Â The House brief states:
Moreover, as with historical considerations, Plaintiff's question-begging contention that homosexuality is never a relevant or rational basis for classification is hardly the sum total of the heightened scrutiny analysis.
So, on to the next two points.
On this point the House brief is two pages long, and once again it voices a less than full-throated defense of DOMA.Â The House chooses to mount a semantic argument against the concept of immutability:
Plaintiff's claim runs headlong into the differing definitions of the terms "sexual orientation," "homosexual," "gay," and "lesbian" ….
OohhKaayy.Â The House attorneys seem to believe that their best approach to resolving the question of immutability is a socratic attack on the entire concept of sexual orientation.Â If we do not know what the term means, how can it be an immutable characteristic of a person's personality?
The House brief also seems to find it significant that the plaintiff's experts concede that a person's sexual orientation cannot be determined at birth, and that it may not clearly emerge until after puberty or well into adulthood.Â The relevant questions are, of course: "Does a mature person "choose" his or her sexual orientation and is he or she able to change it?"Â If not, the trait is immutable.Â The House brief invokes one study finding that 12% of self-described gays and lesbians admit to "some" or "much" choice in their sexual orientation.Â I don't think that is enough to rebut what everyone knows from personal experienceÂ - there is very little choice in the matter of sexual attraction.
d. Political Powerlessness
It is on this point that the House brief concentrates.Â Almost half of the brief is devoted to rebutting the proposition that gays and lesbians need protection from the majoritarian political process.Â The House brief rather bitterly recites the recent string of electoral and legislative victories of the gay rights movement to prove that gays and lesbians are not politically powerless and accordingly that it is unnecessary for the courts to carefully examine the laws that were enacted against them.
The weakness of the House's argumentÂ Â lies in the fact that at the time that DOMA and other discriminatory laws were enacted, gays and lesbians were a relatively powerless minority.Â Hostile legislation was introduced in Congress and submitted to the voters in referenda in order to advance the interests of a major political party.Â Here in Ohio, there wasÂ a conscious and deliberate effort toÂ "rally the base" of Republican voters in the 2004 presidential election by placing Ohio Issue 1 on the ballot.Â At the time, it was a winning strategy.Â The House brief admits that the political landscape has substantially changed from what it was when these laws were enacted:
According to Gallup polling, between 1996 and 2011 the portion of the United States population who believed that same-sex marriage should be recognized increased from 27% to 53%.
I don't think that it canÂ rationally be disputed that gays andÂ lesbians have suffered outrageous discrimination, that they are fully capable of participating in and contributing to society, that sexual orientation is for the vast majority of people an immutable characteristic, and that when discriminatory laws like DADT and DOMA were enacted gays and lesbians had far less political power than heterosexual persons – indeed, far less power than other minority groups.Â The Golden Rule, Kant's Categorical Imperative, and Rawl's Veil of Ignorance (not to be confused with Smart's Cone of Silence!) all challenge us to walk a mile in someone's else's shoes before judging them.Â I believe that each of us would find that to have been gay or lesbianÂ in the United StatesÂ during the 20th century and down to the present day wasÂ a very Long Walk indeed.Â Does the House of Representatives really believe that gays and lesbians do not need protection from unfriendly legislation enacted during this periodÂ - that the government should not be required to demonstrate why they should be treated differently?
2.Â Is there a legitimate reason for the government to treat gay and lesbian couples differently?
In light of all of the energy that the House brief puts into denying that gays and lesbians should be considered a "suspect class" it is surprising that its defense of the substance of the law is so cursory.Â The House addresses only one of the proffered reasons purporting to justify DOMA – the assertion that opposite-sex couples are better parents than same-sex couples.Â And instead of offering proof of this assertion, the House lawyers simply claim that the contrary studies submitted by the plaintiff are not definitive – that the jury is still out on the question whether gays and lesbians are as good parents as heterosexuals.Â Here is an excerpt from thisÂ two-page portion of the House brief:
Â Plaintiff's claim of a clear expert consensus is overstated.Â Indeed, the evidence relied upon by plaintiff's own experts demonstrates that studies comparing gay and lesbian parents to heterosexual parents have serious flaws.
That's it, folks.Â In this brief the House does not offer any proof whatsoever that opposite-sex couples do a superior job of parenting or even assert that they are better in this regard than same-sex couples.Â The House at most argues that existing studies "are not definitive" and suffer fromÂ "serious methodological problems."Â In other words, the House of Representatives is attempting to justify a law that withholds legal recognition – and substantial legal benefits like tax breaks, health care coverage,Â and pension benefits – from the families of same-sex couples because there is no evidence that they are any different from any other families!Â That is not a winning argument.Â It is not even aÂ vigorous defense.
In my long career in the law I have never seen a moreÂ timid and half-hearted collection of legal arguments – particularly not in a matter of such importance as this.Â Attorneys are supposed to be zealous advocates on behalf of their clients.Â That didn't happen here.Â When President Obama and Attorney General Holder came to the conclusion that they could no longer in good conscience defend DOMA in court, they withdrew.Â Considering the unenthusiastic briefs that they have filed, the House attorneys are facing the same dilemma.Â I would be interested in hearing, through the comments below, whether you share the same impression.
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.