Equality On Trial

Jeffrey Rosen at The New Republic gets his facts wrong on marriage equality and the Obama administration

May 24, 2012

DOMA trials Marriage equality

By Scottie Thomaston

Jeffrey Rosen, Legal Affairs Editor of The New Republic, wrote a piece about President Obama and marriage equality titled “Why the Law Will Eventually ‘Evolve’ on Gay Marriage Just Like Obama Did.” The piece itself is not particularly controversial – it’s about the president’s evolution on marriage and how his announcement of his personal decision to support marriage equality may not be a strong constitutional or legal defense of marriage equality at this point. But Rosen gets some important facts wrong.

Discussing the Defense of Marriage Act and the Obama administration’s decision to stop defending Section 3, Rosen writes:

Indeed, the Department of Justice announced that “strict scrutiny” of anti-marriage laws reveals them to be motivated by anti-gay animus, and thus unconstitutional; in other words, Attorney General Eric Holder suggested this was precisely an issue that states aren’t free to decide on their own.

The Department of Justice didn’t actually announce that. In fact Attorney General Eric Holder’s letter on February 23, 2011, said, in part:

After careful consideration, including a review of my recommendation, the President has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a more heightened standard of scrutiny. The President has also concluded that Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional. Given that conclusion, the President has instructed the Department not to defend the statute in such cases. I fully concur with the President’s determination.

In other words, the DOJ never claimed that “strict scrutiny” – the highest level of judicial scrutiny, and the one applied to race-based classifications – should apply. It only says that a more heightened form of scrutiny should apply. They decided that since they believe some form of heightened scrutiny should apply, and since DOMA fails to meet that heightened level of scrutiny, it’s unconstitutional.

In fact, it was only recently, in April of this year, when the Obama administration said to a court that they are not defending DOMA on any basis whatsoever, not even rational basis scrutiny. That was during the oral argument in Gill v. OPM/Massachusetts v. HHS at the First Circuit Court of Appeals:

One of the most interesting parts of yesterday’s hearing at the First Circuit Court of Appeals taking up a challenge to the odious Defense of Marriage Act is the marked shift in the Justice Department’s position. At the hearing yesterday, the Justice Department said it will “cease defending section 3 of DOMA on any basis” and that they were “not here [in court] to defend it under any standard.” When pressed by a judge, the lawyer for the Department said they aren’t taking a position on defending DOMA under rational basis review.
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In February 2011,[...]the Justice Department decided that it would not defend Section 3 of the Defense of Marriage Act, as it thinks laws affecting gays and lesbians should be reviewed under a heightened standard of scrutiny. The Justice Department said then that Section 3 of DOMA would likely pass rational basis scrutiny but that it’s not the correct standard anyway. They made this decision when a DOMA case reached a court where there was no circuit precedent on point – meaning that the outcome of the case would help set the standard of review for cases affecting gays and lesbians in the circuit.

Until April 2012, the DOJ’s position had been only that heightened scrutiny applies to laws affecting gays and lesbians, and that DOMA fails review under heightened scrutiny. They took no position on whether laws affecting gays and lesbians should be reviewed under “strict scrutiny” the way racial classifications are, or “intermediate scrutiny”, the way sex classifications are. Later, they extended this decision to another federal law affecting benefits for servicemembers and their spouses. And in April, they said they would not be defending DOMA as constitutional under rational basis review – that they were not in court to defend it under any basis. If the DOJ had indeed suggested that laws affecting gays and lesbians should be reviewed under strict scrutiny, marriage bans would almost certainly be struck down in every instance.

And of course it should go without saying that Rosen is incorrect to say the DOJ decided that ““strict scrutiny” of anti-marriage laws reveals them to be motivated by anti-gay animus, and thus unconstitutional” in the first place, since the letter said no such thing, and the issue it did make a decision about was a law – the Defense of Marriage Act – that only applies to same-sex couples who are already legally married in states that allow it. At most, the DOJ suggested that anti-gay laws, including anti-marriage laws, should be reviewed under a heightened form of scrutiny.

In another section of the article, Rosen says:

In the 2003 Lawrence case, the Supreme Court said that anti-gay animus can never justify a law that discriminates against gays and lesbians—and if the vast majority of the country no longer sees gay marriage bans as a legitimate commitment to preserving tradition, animus will be the only plausible motivation to discern in them. Just as the Supreme Court, by 1967, was able to say that “everyone knows” that opposition to interracial marriage was based on animus against African American inferiority, so might the Court soon be able to say that “everyone knows” that opposition to gay marriage is based on unconstitutional animus against gays and lesbians.

The Supreme Court didn’t say that in Lawrence v. Texas, which only references ‘animus’ once, and in that instancethe opinion was citing another case. Lawrence invalidated laws against same-sex intimacy based on the 14th Amendment’s Due Process guarantee, saying that “the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice…” or in other words, tradition is not a rational basis for a law. Rosen seems to be conflating the “tradition” aspect of Lawrence with the “animus” holding of a previous case, Romer v. Evans. That case struck down Amendment 2 in Colorado, a constitutional amendment that would have taken a broad array of rights from gays and lesbians. The Supreme Court said that it was so specific, singling out gays and lesbians, and yet so broad, taking away so many rights, that it could only be explained by animus toward gays and lesbians:

Amendment 2 fails, indeed defies, even this conventional inquiry. First, the amendment has the peculiar property of imposing a broad and undifferentiated disability on a single named group, an exceptional and, as we shall explain, invalid form of legislation. Second, its sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class that it affects; it lacks a rational relationship to legitimate state interests.

And animus is not a rational basis for a law:

A second and related point is that laws of the kind now before us raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected. “[I]f the constitutional conception of `equal protection of the laws’ means anything, it must at the very least mean that a bare . . . desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.” Department of Agriculture v. Moreno, 413 U.S. 528, 534 (1973). Even laws enacted for broad and ambitious purposes often can be explained by reference to legitimate public policies which justify the incidental disadvantages they impose on certain persons. Amendment 2, however, in making a general announcement that gays and lesbians shall not have any particular protections from the law, inflicts on them immediate, continuing, and real injuries that outrun and belie any legitimate justifications that may be claimed for it. We conclude that, in addition to the far reaching deficiencies of Amendment 2 that we have noted, the principles it offends, in another sense, are conventional and venerable; a law must bear a rational relationship to a legitimate governmental purpose, Kadrmas v. Dickinson Public Schools, 487 U.S. 450, 462 (1988), and Amendment 2 does not.
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We cannot say that Amendment 2 is directed to any identifiable legitimate purpose or discrete objective.
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We must conclude that Amendment 2 classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else.

I don’t think these inaccuracies would substantially affect the point he was attempting to make, except for a few issues. Neither tradition nor animus are rational bases for a law in themselves, but they aren’t part of the same case. And the DOJ is not defending DOMA or any other anti-gay law based on rational basis anyway. But the DOJ has only vaguely addressed laws affecting gays and lesbians, saying some heightened form of scrutiny applies, and it’s not accurate to say that the DOJ believes anti-marriage laws should be reviewed under the strictest form of judicial scrutiny. These are just basic facts about court cases and DOJ pronouncements on issues affecting gays and lesbians that one should do research on before one pens an opinion piece on the subject.

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