Posted by Dale Carpenter:
Fierce advocacy:
http://volokh.com/archives/archive_2009_06_07-2009_06_13.shtml#1244844195
Continuity continues. The Obama Justice Department yesterday filed
[1]a brief urging a California district court to dismiss a
little-known constitutional challenge to DOMA filed in late 2008 by a
married gay couple. (No, it's not the Olson/Boies challenge to Prop
8.) The brief makes some unexceptional jurisdictional arguments about
standing and immunity. For lots of reasons, gay-marriage advocacy
groups would like to see this case go away, but go away without damage
to the substantive constitutional case against DOMA. A dismissal on
jurisdictional grounds would nicely suit that purpose, and that seems
to me the most likely outcome.
But the DOJ brief goes further than it needs to go at this point in
the case by addressing the merits of the constitutional issues in the
case, which attacks both DOMA Section 2 (interstate recognition) and
DOMA Section 3 (federal recognition). There's a hodge-podge of claims
in the case. Everything from the Full Faith & Credit Clause to freedom
of speech is hurled at DOMA by the claimants.
Of most interest is what the DOJ has to say about the due process and
equal protection claims, rejecting just about every single variation
of an argument that gay-rights scholars and litigants have made over
the past 30 years.
Fundamental right to marry that includes same-sex couples? Nonsense
under the narrowest approach to such rights, as articulated by Chief
Justice Rehnquist in Washington v. Glucksberg, who wrote that in
evaluating a fundamental-rights claim a federal court must follow
tradition and tradition is to be understood as narrowly as possible.
The Loving analogy? Rejected. Strict scrutiny for laws discriminating
against gays and lesbians? Unprecedented. Sex discrimination?
Meritless. Romer v. Evans? That dealt with a comprehensive denial of
rights, unlike DOMA. Lawrence v. Texas? That was a privacy case.
Ninth Amendment rights? No such thing.
Two specific points in the brief are especially noteworthy:
(1) The DOJ asserts that federal courts are precluded from even
considering the merits of a constitutional challenge under the due
process and equal protection clauses. DOJ brief, pp. 28-30. That's
because, says the DOJ, 37 years ago the Supreme Court dismissed a
claim for same-sex marriage for lack of a "substantial federal
question" in a memorandum opinion, Baker v. Nelson. The case had
arisen from the earliest constitutional challenge to a marriage law,
in Minnesota in 1971. The state court concluded in a very brief and
dismissive opinion, unsurprising for the time, that same-sex couples
had no fundamental right to marry under the due process clause and
that denying them marriage was not invidious discrimination under the
equal protection clause. Agreeing with what same-sex marriage
opponents have argued for years, the DOJ says the Supreme Court's
summary disposition of the appeal decided the matter on the merits of
the claims and binds the lower courts, whatever changes there might
have been in the underlying doctrines over the years. My guess is that
gay-marriage litigants would argue that they are not presenting the
same arguments made 37 years ago, even if the same constitutional
clauses are invoked, that the circumstances ought to suggest a very
narrow understanding of the "federal question" decided in 1972, that
Baker did not decide all variants of equal protection and due process
challenges to marriage laws, and that at any rate the DOJ did not need
to make this argument.
(2) Much more surprising, the DOJ argues that denying marriage to
same-sex couples is not even discrimination on the basis of sexual
orientation:
Section 3 of DOMA does not distinguish among persons of different
sexual orientations, but rather it limits federal benefits to those
who have entered into the traditional form of marriage.
More bluntly put, the Obama DOJ is saying that DOMA doesn't
discriminate against gays and lesbians because they are free to marry
people of the opposite sex. No "homosexual" is denied marriage so
homosexuals qua homosexuals suffer no hardship. Gay man? Marry a
woman, says the DOJ. Lesbian? There's a nice boy across the street.
It's identical in form to the defense of Texas's Homosexual Conduct
law in Lawrence v. Texas: a law banning only gay sex doesn't
discriminate against gays because it equally forbids homosexuals and
heterosexuals to have homosexual sex and because it equally allows
homosexuals and heterosexuals to have heterosexual sex. This sort of
formalism has incited howls of laughter over the years when made by
religious conservatives. Now it's the official constitutional position
of the Obama administration.
My point here is not to claim that the DOJ's arguments are anti-gay,
homophobic, or even wrong. Much of the brief seems right to me, or at
least entirely defensible. My point is only to point out how much
continuity there is in this instance, as in others, between the Bush
and Obama administrations. In short, there's little in this brief that
could not have been endorsed by the Bush DOJ. A couple of rhetorical
flourishes here and there. Perhaps a turn of phrase. But, minus a
couple of references to procreation and slippery slopes, the substance
is there.
Obama says he opposes DOMA as a policy matter and wants to repeal it.
Nothing in the DOJ brief prevents him from acting on that belief. He
is, he says, a "fierce advocate" for gay and lesbian Americans. When
does that part start?
(HT: [2]AMERICABlog)
References
1. http://www.scribd.com/doc/16355867/Obamas-Motion-to-Dismiss-Marriage-case
2.
http://www.americablog.com/2009/06/obama-justice-department-defends-doma.html
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