Posted by Dale Carpenter:
DOJ Boosts the Cause of SSM:
http://volokh.com/archives/archive_2009_08_16-2009_08_22.shtml#1250541892
The Obama Justice Department today filed [1]a reply brief supporting
its motion to dismiss in Smelt v. United States, a constitutional
challenge to DOMA filed a few months ago in a California district
court. Readers may remember that back in June the DOJ [2]supported its
motion to dismiss with some merits arguments that justifiably angered
gay-rights groups. The June brief opposed just about every
constitutional argument gay-rights supporters have been making for
more than three decades.
What a difference two months makes. While the DOJ hasn't retracted its
earlier arguments, its new brief is much more friendly to gay families
in tone and in substance. It also emphasizes the plaintiffs' lack of
standing and suggests that a ruling on the merits would be
unnecessarily broad. The original motion could have been this narrow
and done the job.
Consider this almost apologetic, but also uncontroversial, passage:
With respect to the merits, this Administration does not support
DOMA as a matter of policy, believes that it is discriminatory, and
supports its repeal. Consistent with the rule of law, however, the
Department of Justice has long followed the practice of defending
federal statutes as long as reasonable arguments can be made in
support of their constitutionality, even if the Department
disagrees with a particular statute as a policy matter, as it does
here.
There was nothing like this anti-DOMA language in the June brief.
There was no mention of the administration's anti-DMA policy views.
And far from calling DOMA "discriminatory" back in June, the DOJ went
out of its way to argue that DOMA does not discriminate on the basis
of sex or sexual orientation.
Much more significantly, and to me surprisingly, it now appears to be
the view of the executive branch that the social interests in
child-rearing and procreation do not even rationally justify the
exclusion of gay couples from marriage:
Unlike the intervenors here, the government does not contend that
there are legitimate government interests in "creating a legal
structure that promotes the raising of children by both of their
biological parents" or that the government's interest in
"responsible procreation" justifies Congress's decision to define
marriage as a union between one man and one woman.
This new position is a gift to the gay-marriage movement, since it was
not necessary to support the government's position. It will be cited
by litigants in state and federal litigation, and will no doubt make
its way into judicial opinions. Indeed, some state court decisions
have relied very heavily on procreation and child-rearing rationales
to reject SSM claims. The DOJ is helping to knock a leg out from under
the opposition to gay marriage.
Next comes this passage, suggesting that empirical learning has
bolstered the case for gay and lesbian parenting:
Since DOMA was enacted, the American Academy of Pediatrics, the
American Psychological Association, the American Academy of Child
and Adolescent Psychiatry, the American Medical Association, and
the Child Welfare League of America have issued policies opposing
restrictions on lesbian and gay parenting because they concluded,
based on numerous studies, that children raised by gay and lesbian
parents are as likely to be well-adjusted as children raised by
heterosexual parents.
The idea that same-sex parents are inadequate or at least sub-optimal
has been a major point in the public-policy opposition to SSM, and was
used to support passage of DOMA. It has also been a reason for
deference by state courts: as long as there was still a legitimate
debate over the quality of same-sex parenting, courts ought to defer
to states' judgments that traditional families are best. While the DOJ
hasn't exactly endorsed the view that the parenting debate is over,
this passage certainly points us in that direction. It implies that
DOMA is anachronistic.
Finally, the DOJ brief shows that Justice Scalia's dissent in Lawrence
v. Texas is coming back to haunt the opposition to SSM. Recall that in
Lawrence Justice Scalia warned that the Court was dismantling the
constitutional structure supporting traditional marriage. Why?
Because, Justice Scalia said, if traditional moral opposition to
homosexuality is no longer a valid basis for law, there remain no
other good constitutional reasons to oppose SSM -- even on rational
basis review. Scalia specifically mentioned that gay couples'
inability to procreate -- a critical point to "natural law" theories
against SSM and to some courts -- would be insufficient. Now comes the
DOJ armed with arguments from Justice Scalia:
Furthermore, in Lawrence v. Texas, 539 U.S. 558, 605 (2003),
Justice Scalia acknowledged in his dissent that encouraging
procreation would not be a rational basis for limiting marriage to
opposite-sex couples under the reasoning of the Lawrence majority
opinion � which, of course, is the prevailing law � because "the
sterile and the elderly are allowed to marry." For these reasons,
the United States does not believe that DOMA is rationally related
to any legitimate government interests in procreation and
child-rearing and is therefore not relying upon any such interests
to defend DOMA's constitutionality.
While gay-rights groups complain that the DOJ continues to defend the
constitutionality of DOMA, and are rightly disturbed by the
still-unabandoned arguments the DOJ made back in June, they should be
delighted by the turn taken in this reply brief. It will serve the
cause of SSM in state and federal courts for years to come.
(HT: [3]Law Dork)
References
1. http://lawdork.net/wp-content/uploads/2009/08/Smeltdomareplybrief.pdf
2. http://volokh.com/archives/archive_2009_06_07-2009_06_13.shtml#1244844195
3. http://lawdork.net/2009/08/17/doj-reply-brief-in-smelt-filed/
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