This is the brief where Obama's Justice Department Attorneys filed the controversial motion to dismiss a Constitutional challenge to the Defense of Marriage Act. The purpose of this diary will be to examine this brief and comment on it. First of all, at the outset, there have been many claims thrown around; one of these claims is that they somehow equated being gay to incest. I fail to find any such assertion in this document. What I find is a brief that shows a of what Obama's thinking about the Constitution and the law is. I will go through the assertions one by one and comment as I go.
First of all, I would note that Obama's reluctance to enforce federal marijuana laws is based on the same principle as his willingness to defend the DOMA -- he believes strongly in the notion that it is the states where much reform takes place. In addition, he supports an incrementalist view of change -- change first happens at the state and local levels and then percolates up to the federal level. In other words, it is a reverse trickle-down theory of change, if you will. I'm not agreeing with it or defending it; I'm simply stating my impressions of what policy directions Obama will go. Attorneys for the government are Assistant Attorney General Tony West, Assistant Director James Gilligan, and Senior Trial Counsel W. Scott Simpson.
The brief starts with the fact that while same-sex couples in some states have won the right to marry, other states have declared that marriage is between a man and a woman. The next paragraph states that the case does not call upon the Court to pass judgment on the legal or moral right of same-sex couples to be married. The Plaintiffs are married; however, they argue that based on their marital status they are Constitutionally entitled to acknowledgment of their union by other states. They also argue that they are entitled to federal benefits by virtue of their marriage in California.
The Obama administration responds to this challenge by defending the merits of the DOMA, passed in 1996. It calls the DOMA "a cautiously limited response to society's still-evolving understanding of the institution of marriage." In other words, the Obama administration argues that the DOMA is "consistent with our federalist system which allows each state to serve as a laboratory and try novel social and economic experiments without risk to the rest of the country." Therefore, the DOMA provides that each state may decide whether to recognize a same-sex marriage performed under the law of another state.
The third section, as noted by Obama's lawyers, makes the argument that since Congress had long conferred various financial and other benefits on the basis of marriage, the proper response to what the brief calls "historically novel forms of marriage" was a wait and see approach by codifying marriage for purposes of federal benefits while declining to extend benefits to a newer form of marriage which no states had adopted at the time of the passage of the DOMA. The argument made is that there is a compelling interest in not devoting scarce resources to a form of marriage that had not been adopted by any of the states at the time of the passage of the DOMA.
The plaintiffs' specific claims against the government are as follows:
- The Full Faith and Credit Clause is violated;
- The Right to Travel is violated;
- Both sections violate the Due Process Clause;
- The plaintiffs' right to privacy is violated;
- Their free speech rights are violated;
- Their 9th Amendment rights are violated.
First of all, the Justice Department argues that the Federal Court lacks jurisdiction in this case because the case had been removed from a state court since the defendant in this case was the Federal Government and that the Federal Government is immune from lawsuits in state courts. Secondly of all, the Justice Department argues that the plaintiffs lack standing to challenge the DOMA because they have not (according to the Justice Department) actually been denied rights or benefits under the laws of another state. In other words, you can't sue based on the denial of rights that might take place; you have to sue based on the denial of rights that have already taken place. In addition, the Justice Department argues that since the plaintiffs have not applied for any federal benefits, let alone been denied such benefits, they do not have standing to file suit.
Turning to the Full Faith and Credit Clause, the Justice Department argues that Congress was merely "confirming long-standing conflict of laws principles" and that the DOMA was therefore "a valid exercise of its express power to settle such questions." In other words, the Justice Department argues that since states have a right to experiment and maintain the exclusivity of their own public policies, the Full Faith and Credit Clause does not apply. And the Justice Department argues that since the DOMA does not address whether married gay couples can travel to other states but simply permits each state to follow its own marriage policies, the "right to travel" argument was without merit as well.
The Justice Department then argues that plaintiffs' due process and equal protection claims should be dismissed as well. The Justice Department argues that since the DOMA does not restrict any rights that have been recognized as fundamental (And who gets to decide what a fundamental right is? -- EH) or rely on any suspect classifications, it should not be reviewed with strict scrutiny. In other words, the Federal Government does not issue marriage licenses -- that is something that the states do. Therefore, according to the Justice Department, "DOMA in no what prohibits same-sex couples from marrying." The Justice Department continues by noting that "no court has ever found such a right to federal benefits on that basis to be fundamental." The Justice Department argues that since "current Supreme Court precedent that binds this court does not recognize" the right of same-sex couples to marry or discriminate or permit states to discriminate, and that since sexual orientation is not a "suspect classification," then the law should be reviewed on a rational basis consideration. (The problem is that since sexual orientation is a valid classification, then laws that treat gay and straight couples differently amount to separate but equal -- EH)
Since the Justice Department argues that the courts should consider on a rational basis strategy, it therefore follows from their analysis that they should uphold the DOMA "as long as there is any conceivable set of facts that could provide a rational basis for it, including ones that the Congress itself did not advance or consider." (Separate but equal was once considered a rational basis -- EH) Then, the Justice Department says that there are all sorts of human relationships that are not given federal benefits, and that the government acted properly by maintaining the status quo while allowing states to experiment with new defintions of marriage.
Regarding the claim of free speech rights, the Justice Department argues that since marriage (gay or straight) is not an expressive conduct, it cannot be considered on those grounds. The Justice Department then argues that since the right to privacy only encompasses rights that are "consitutionally fundamental," and since gay rights have not been recognized as such, then the plantiffs' contention on those grounds is without merit.
The brief then goes into the statutory background of the DOMA. It was passed in response to a ruling by the Hawaii Supreme Court which found that the defintion of marriage under Hawaii Law might warrant heightened scrutiny under the Constitution of that state. Consequently, the intent of the DOMA was to preserve each state's ability to decide for themselves what would or wouldn't constitute a marriage. Specifically, the Justice Department relies on the "express grant of authority to prescribe the effect that public acts, records, and proceedings" that one state shall have in sister states. In the brief, the rationale for granting "preferred legal status" to marriage between a man and a woman were the following governmental interests:
- The role that traditional marriage plays in procreation and child-rearing.
- Congress' interest in defending traditional notions of morality;
- Protecting state sovereignty and democratic self-governance;
- Preserving scarce resources given the fact that federal marriage benefit programs would require more taxpayer dollars should gay marriage be legalized.
The brief then goes into the procedural history of the case. First, the plaintiffs unsuccessfully filed suit against the County of Orange, which was dismissed because the plantiffs were not married at the time of the law, and because there was no public act to which the Due Process Clause could apply; the case was filed in 2004, before gay marriage was legalized in California. The next reason for the dismissal was that since the plaintiffs were not planning to seek recognition of their marriage in another state, there was no imminent injury. The 9th Circuit, on appeal, ruled that since it was a generalized grievance, the trial court was correct in its ruling.
On November 3rd, 2008, the plaintiffs filed a new complaint and named the Federal Government as a defendant, which was dismissed on November 26th. On December 29th, the plaintiffs filed a new suit naming the State of California, the Federal Government, and "Does 1 through 1000."
The brief then proceeds to the government's arguments. The first is that since the case was removed from the state court to a federal court (Since the plaintiffs lacked standing to sue the Federal Government in a state court), the federal court's jurisdiction was "derivative of the state's jurisdiction." In other words, the federal court has no more jurisdiction than the state could would have. The Justice Department further argues that since there is the matter of sovereign immunity, the courts must therefore dismiss the case due to lack of standing.
The next argument that the Obama administration makes focuses on the Case or Controversy Requirement of Article III. The argument is that since the plaintiffs were merely seeking relief from what the Justice Department calls "abstract" or "conjectural" injuries, that there was no standing for the federal courts to hear the case.
The Department of Justice then makes the argument that since the plaintiffs are making a generalized greivance and since they were raising another person's legal rights, the appropriate channel for relief was the legislature, not the courts. In other words, you can't file suit based on the government's violation of a third party's rights -- that person may not wish to assert those rights.
Returning to the Full Faith and Credit Clause, the Obama administration argues that the Full Faith and Credit Clause "has never been construed to require one state to give absolute deference to another state's laws in all circumstances" and that in such instances of conflict, Congress has the Constitutional power to prescribe the effect of one state's laws on another. The specific provision states as follows:
Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.
The Justice Department argues that if we were to use the Full Faith and Credit Clause to make gay marriage the law of the land, we would have a scenario where, in their words, "the statute of each state must be enforced in the courts of the other, but cannot be in its own." In other words, a state does not have to apply this clause in violation of its own public policy.
Next, the Justice Department addresses the plaintiffs' argument that the DOMA denies their "right to travel." The argument that the Justice Department raises is that since the plaintiffs have failed to allege any plans to travel to, reside in, or become citizens of another state, they did not have standing to allege that the DOMA has actually interfered with their right to travel. In other words, in the eyes of the law, injury cannot be "conjectural" or "hypothetical;" it must be "certainly impending." The Justice Department further argues that the Defense of Marriage Act doesn't even curtail anyone's right to travel; it simply allows each state to follow its own policy with respect to marriage. Furthermore, Obama's administration argues that if the courts were to force states to adhere to other state laws based on the right to travel, then it would return us to the situation where courts would have to decide based on all the other state laws but their own. And to be fair to the government's side, if we adopted such a precedent, the problem might be that we could have situations where a traditionally married couple divorced and the man went to VT to marry a man and the ex-wife could file a suit claiming that they were not really married -- on the same grounds that this suit is filed on.
The Obama administration then argues that the DOMA is consistent with the Equal Protection and Due Process principles. In other words, they state that "Congress makes a wide array of federal financial and other benefits available to men and women united in marriage to the exculsion of all other human relationships (save for that of parent and minor child), not just same-sex marriage." In other words, according to the Justice Department, DOMA:
- Recognized the right of some states to expand the traditional understanding of marriage;
- Protected the right of other states to adhere to their traditional understanding of marriage;
- Maintain the longstanding federal policy of affording ebenfits to the "universally recognized" form of marriage.
Furthermore, the Justice Department argues that Congress was "entitled" to respond to new social phenomena one step at a time and to adjust incrementally. Therefore, based on the rational basis test, the Obama administration argues that "as far as counsel for defendants are aware, every court to address a federal constitutional challenge to the definition of a marriage between a man and a woman has rejected this challenge."
In addition, the Justice Department argues that the federal courts have specifically addressed the Constitutionality of both sections of the DOMA and have upheld them.
The Obama adminisration then goes on to address the various Supreme Court cases. The Justice Department argues that the difference between Romer and this case was that the SCOTUS invalidated a state amendment barring gays from securing any protection under state or local anti-discrimination statutes. The SCOTUS ruled that there was no government interest in Romer. However, the Obama administration argues in this case that Romer does not apply to the DOMA because it was not overly broad. Unlike Romer, the Obama administration argues that "DOMA is rationally related to legitimate government interests and cannot fairly be described as born of animosity towards the class of persons affected." Specifically, the argument states that "preserving the autonomy of state and federal governments to address evolving definitions of an age-old societal institution is itself a legitimate governmental interest." In other words, since the DOMA allowed states to legalize gay marriage, it could not be construed to be born as the result of animosity towards gays.
The next case discussed is Lawrence, where the SCOTUS threw out a statute which criminalized sodomy. However, the Justice Department argues in its brief that the case before it did not involve whether gay marriage had to be recognized by the government; therefore, it does not address the affirmative right to receive public recognition of gay marriage.
Next, the Obama administration argues that there are no fundamental rights involved since DOMA involves federal benefits. Therefore, the Obama administration argues that since federal benefits are not a fundamental right under the Constitution, the rational basis standard applies. And since, according to the Obama administration, the DOMA doesn't interfere with the right of gays to marry in states where it is legal, it is therefore Constitutional.
Then, the government argues that even if same-sex marriages were a fundamental right under the Constitution, the plantiffs would not prevail; the problem that the Justice Department sees is that there was no Constitutional right to receiving governmental aid; in other words, the decision "not to subsidize the exercise of a fundamental right does not infringe the right."
The Obama administration then argues that under current legal precedent, there is no Constitutional right to a same-sex marriage; the Justice Department cites Baker vs. Nelson, where the Supreme Court dismissed the case for "lack of a substantial federal question." Furthermore, the Justice Department accuses the plaintiffs of "misperceiving the nature of the line that Congress has drawn." In other words, discrimination on the basis of sexual orientation is prohibited in federal employment as well as small business assistance, federal education and training programs. In other words, the DOMA draws the line at receiving federal marriage benefits.
The next argument that the Justice Department addresses is Loving, where the Supreme Court struck down a law prohibiting interracial marriage. However, the Obama administration argues that the difference was that Loving involved a case which was designed to maintain white supremacy whereas, in the Justice Department's view, there was no such purpose in the DOMA.
The brief concludes:
DOMA withstands review under this highly deferential standard. In light of society's still-evolving understanding of marriage, the statuts adopted what amounted to a cautious policy of federal neutrality towards a new form of marriage. DOMA maintains federal policies that have long sought to promote the traditional and uniformly-recognized form of marriage, recognizes the right of each state to expand the traditional definition if it so chooses, but declines to obligate federal taxpayers in other states to subsidize a form of marriage their own states do not recognize. This policy of neutrality maximizes state autonomy and democratic self-governance in an area of traditional state concern and preserves scarce government resources. It is thus entirely rational. Plaintiffs' contrary claim rests, at bottom, on an improper effort at constitutional bootstrapping: the fact that some states have decided to expand the definition of marriage cannot create an equal protection-based duty in other states or the federal government to grant such recognition.
The Obama administration may very well be right -- as a matter of law. But as a matter of policy, it should always be our objective to create and maintain new rights for people and protect people from the power of the mob. The 9th Amendment states that there are rights that are not specifically stated under the Constitution, and the 10th states that all rights not granted to the government are reserved for the states and the people. The government implicitly conceded this argument when they acknowledged in their brief that all Americans have a right to travel from one state to another.
Many of the arguments made here are appeals to tradition and public opinion. But the Obama administration is operating under a fundamental misconception of what our rights are -- our rights are never a matter of public opinion or popularity. Otherwise, Jim Crow never would have been abolished. It is the government's job to protect people from the mob, not let the mob dictate what our rights should or shouldn't be. The Justice Department is operating under a totally faulty premise -- there is nothing in the Constitution that states that marriage is between a man and a woman. And there is nothing in the Constitution that states that we have to defer to societal norms or traditions or even state consensus.