Fierce advocacy:

Continuity continues. The Obama Justice Department yesterday filed 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.

Three 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.

(3) The Obama DOJ also has new understanding of federalism:

[B]ecause Congress recognized both the freedom of States to expand the traditional definition, and the freedom of other States to decline to recognize this newer form of marriage, a policy of neutrality dictated that Congress not extend federal benefits to new forms of marriage recognized by some States. Given the strength of competing convictions on this still-evolving issue, Congress could reasonably decide that federal benefits funded by taxpayers throughout the nation should not be used to foster a form of marriage that only some States recognize, and that other States do not. (emphasis added)

Historically federal marriage benefits have been available to anyone married under state law. The federal definition was parasitic on the state definition. If a state chose to allow 14-year-olds to marry, but most states did not allow that, nobody thought federal recognition of such marriages functioned as a subsidy forced on the taxpayers of other states. DOMA changed that, but only for gay marriages. “Neutrality,” as the Obama administration understands it, does not mean federal recognition of state choices in this matter. It means denying federal recognition of state choices.

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, as a matter of constitutional law. My point is only to note 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 might have been different. Perhaps a turn of phrase. But, minus some 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?


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