BLAG Bags Obama on DOMA

January 22nd, 2013

Here is how the BLAG brief describes the Executive’s actions with respect DOMA:

Following DOMA’s enactment, the Department of Justice discharged its constitutional duty to “take Care that the Laws be faithfully executed,” U.S. Const. art. II, § 3, and successfully defended Section 3 of DOMA against several constitutional challenges, prevailing in every case to reach final judgment.3 The Department continued to defend DOMA during the first two years of the current Administration.

As I read it, the DOJ continued to “take care that the Laws be faithfully executed” until Joe Biden opened his big mouth and nudged the President to publicly state his position (for the better in my mind)

In February 2011, however, the Administration abruptly reversed course and abdicated its duty to defend DOMA’s constitutionality. See Letter from Att’y Gen. Eric H. Holder, Jr., to the Hon. John A. Boehner, Speaker of the House (Feb. 23, 2011) (“Holder Letter”), February/11-ag-223.html. Attorney General Holder announced that he and President Obama were now of the view “that a heightened standard [of review] should apply [to DOMA], that Section 3 is unconstitutional under that standard and that the Department will cease defense of Section 3.” Id. The Attorney General acknowledged that, in light of “the respect appropriately due to a coequal branch of government,” the Department “has a longstanding practice of defending the constitutionality of dulyenacted statutes if reasonable arguments can be made in their defense.” Id. He did not, however, apply that standard to DOMA. On the contrary, he conceded that every federal court of appeals to have considered the issue by that point in time (eleven of the thirteen circuits) had applied rational basis review to sexual orientation classifications and that “a reasonable argument for Section 3’s constitutionality may be proffered under [the rational basis] standard.” Id. 4

Clement especially takes exception with Holder’s imputation of “animus” to the people who enacted DOMA.

Although the Holder Letter had said only that the Department would “cease defense” of DOMA Section 3, the Department did not merely bow out of DOMA litigation. Instead, it affirmatively assailed DOMA in court—arguing that Section 3 violates equal protection and urging courts to render judgment in favor of plaintiffs challenging the law even in Circuits in which rational basis was binding circuit law. The Department even went so far as to accuse the Congress that enacted DOMA—many of whose Members still serve—of being motivated by “animus.”

I haven’t studied the jurisdiction issue closely enough, so I’ll not opine on that. I’ll ready Marty Lederman’s 7-part SCOTUSBlog memo when I can.

In response to the Department’s remarkable “about face” on DOMA, Massachusetts, 682 F.3d at 7, the House intervened as a party-defendant in more than a dozen cases (fifteen to date), around the country, in which one or more plaintiffs challenged the constitutionality of DOMA Section 3; the House did so to ensure that a duly-enacted federal statute would have an adequate constitutional defense. No court denied intervention.