OBAMA ADMINISTRATION FACES CRITICAL QUESTION IN DEFENSE OF MARRIAGE ACT (DOMA) LITIGATION The Department of Justice has maintained that it has a duty to defend the Defense of Marriage Act (DOMA) as constitutional despite the fact that the Obama administration believes the law is discriminatory and should be repealed by Congress. However, the Department has not yet been faced with answering another important legal question, namely what standard of review federal courts should apply when reviewing laws that discriminate based on sexual orientation. How it answers that question will impact not just litigation over DOMA, but will influence how courts look at the range of laws and practices that treat our community differently, as well as litigation over pro-LGBT bills that we hope the Congress pass in the near future. THE CURRENT STATUS OF DOMA LITIGATION In March 2009, Gay & Lesbian Advocates & Defenders (GLAD) filed suit in federal district court in Boston on behalf of a number of same-sex couples challenging the federal government’s denial of Up until marriage-related protections, benefits and responsibilities to legally married same-sex couples under now, the Section 3 of the Defense of Marriage Act. In this case, Gill v. Office of Personnel Management, plaintiffs argue that, in doing so, DOMA violates the U.S. Constitution’s guarantee of equal protection Department of the laws. The Department of Justice defended the statute in federal court, but disclaimed earlier of Justice rationales for DOMA (e.g. preserving tradition, encouraging “responsible procreation”) in favor of an argument that Congress had an interest in preserving the status quo in how federal benefits has not had are provided. In July 2010, the district court ruled for the plaintiffs, concluding that DOMA indeed to argue violates the constitutional guarantee of equal protection (as well as finding for the Commonwealth of Massachusetts in its own challenge to DOMA on related, but not identical constitutional grounds). explicitly DOJ has appealed that decision to the U.S. Court of Appeals for the First Circuit. about what In November 2010, the American Civil Liberties Union (ACLU) and GLAD filed two additional standard of DOMA challenges in federal courts in New York and Connecticut, respectively. Like Gill, these cases review should challenge the denial of federal rights and benefits to married same-sex couples under Section 3 of DOMA. The Department of Justice must respond in the ACLU’s case, Windsor v. United States, and in be applied GLAD’s case, Pederson v. Office of Personnel Management, on March 11. in cases Up until now, the Department of Justice has not had to argue explicitly about what standard of review challenging should be applied in cases challenging laws that discriminate based on sexual orientation. This is laws that because in the First Circuit, where the Gill case was brought, there is controlling precedent (Cook v. United States, a “Don’t Ask, Don’t Tell” challenge) in which the Court of Appeals has already discriminate concluded that rational basis, the lowest level of scrutiny that is most deferential to the government, based on should apply to sexual orientation-based claims. This is also true in DOJ’s defense of the “Don’t Ask, Don’t Tell” law in Log Cabin Republicans v. United States, currently before the U.S. Court of Appeals sexual for the Ninth Circuit, where, again, there is circuit precedent calling for rational basis review. orientation. However, shortly the Department will not be able to simply point to existing precedent. Both the Windsor and Pederson cases have been brought in federal courts in the Second Circuit, where there is no controlling case law regarding what standard of review should be applied. Both the ACLU and GLAD argue in these cases that laws that discrimination based on sexual orientation should be subjected to heightened scrutiny by the courts. THE STANDARD OF REVIEW ISSUE In reviewing alleged violations of the constitutional guarantee of equal protection, federal courts When determining first look at what classification the law in question makes and then determine how closely it whether a should be scrutinized. The Supreme Court has made clear that laws that discriminate based on certain characteristics, such as race, national origin and gender, are inherently suspect and are classification thus subject to a heightened level of scrutiny. Other classifications, however, are subject simply should be subject to rational basis review, a very deferential standard under which laws are presumptively valid. to heightened When determining whether a classification should be subject to heightened scrutiny, courts scrutiny, courts typically consider two main factors: (1) whether there is a history of discrimination based on the characteristic and (2) whether the characteristic is relevant to one’s ability to participate in or typically consider contribute to society. Courts sometimes consider other factors, such as the immutability of the two main factors: characteristic and whether the group is particularly vulnerable politically. Historically, federal courts that have considered the question have concluded that classifications based on sexual orientation are subject only to rational basis review. However, almost exclusively, those conclusions were predicated on Bowers v. Hardwick, the Supreme Court decision 1 whether there is a history of discrimination upholding the criminalization of same-sex sexual activity, which has since been invalidated by based on the the Court’s 2003 decision in Lawrence v. Texas. Notably, the state supreme courts of California, characteristic Connecticut and Iowa have concluded in several post-Lawrence marriage equality cases that sexual orientation-based discrimination is subject to heightened scrutiny. This is not surprising, as classifications based on sexual orientation clearly meet the criteria for applying a heightened level of scrutiny. There is ample evidence of the long history of discrimination against gays and lesbians in the United States and sexual orientation is in no way relevant to the ability of gays 2 whether the characteristic is relevant to one’s and lesbians to contribute to our society. In addition, there is consensus in the medical and scientific community that sexual orientation cannot be changed and the widespread legality of ability to participate discrimination against gays and lesbians, along with affirmative laws limiting their rights to marry in or contribute to and parent, demonstrate that this groups remains politically vulnerable. society. THE CONSEQUENCES OF OPPOSING HEIGHTENED SCRUTINY Were the Department of Justice to argue against heightened scrutiny for sexual orientation-based claims in the Windsor and Pederson cases, it would have significant legal and political consequences, both today and in the future. First and foremost, such an argument would require the Department to make assertions that are both grossly insulting to the LGBT community and in dramatic conflict with the multitude of pro-LGBT actions the Obama administration has taken thus far. It would be devastating, as both a matter of equal protection jurisprudence as well as a political statement, to suggest that laws discriminating against gays and lesbians are presumptively constitutional. Second, furthering such an argument would be harmful to the Department’s ability to defend future actions by Congress, through the Employment Non-Discrimination Act (ENDA) and other expansions of federal civil rights law, to affirmatively protect LGBT people. The Supreme Court has concluded that in order for Congress adopt civil rights laws that apply to state and local government actors, thereby abrogating their sovereign immunity under the Eleventh Amendment, it must be done as an exercise of congressional authority to enforce Section 5 of the Fourteenth Amendment. The Court’s precedents have made clear that Congress can only legitimately exercise that authority with regard to classifications that are subject to heightened scrutiny. If the Department were to argue against heightened scrutiny in Windsor and Pederson, it would undermine the ability of Congress to pass laws like ENDA, which the administration itself supports, as well as its own ability to successfully defend them in court.
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