July 6, 2012
By Scottie Thomaston
On June 5th, the Bipartisan Legal Advisory Group’s (BLAG) opening brief defending DOMA in Golinski v. Office of Personnel Management (a lawsuit brought by Lambda Legal) at the Ninth Circuit Court of Appeals was released, and we analyzed it here. The plaintiff’s answer brief was filed July 3.
Since then, the Justice Department has petitioned for certiorari to the Supreme Court in Golinski, despite the fact that briefing continues in the Ninth Circuit and oral argument in the appeals court is set for the week of September 10. We are told by Lambda Legal’s national legal director Jon Davidson that oral arguments in the case are still scheduled and briefing will continue. Unless and until the Supreme Court grants a writ of certiorari in Golinski nothing changes at the Ninth Circuit.
In its summary of argument in the answer brief, plaintiffs write that DOMA is an “unprecedented departure from this nation’s federalist tradition”, and quotes from the recently-decided Health Care Cases:
Last week Chief Justice Roberts observed that “sometimes ‘the most telling indication of [a] severe constitutional problem . . . is the lack of historical precedent’ for Congress’ action.” Nat’l Fed’n of Indep. Bus. v. Sebelius, 2012 U.S
It suggests that DOMA cannot satisfy even rational basis review, though plaintiffs think judges should apply heightened scrutiny (which it would definitely fail.) Plaintiffs’ main arguments can be distilled to this one paragraph in the summary:
Regardless of the level of review, DOMA cannot be justified by BLAG’sproffered interests. DOMA was no cautionary act, but rather a blunt, preemptivelaw that foreclosed, rather than provided for, any future movement on federal recognition of same-sex couples’ valid marriages. The Supreme Court has madeclear that efforts to preserve the public fisc cannot be drawn along invidious lines ,and in any event DOMA costs rather than saves money for the federal government. BLAG’s claim that Congress intended DOMA to “preserv[e] prior legislative judgments” merely reifies Congress’ intentional decision to treat same-sex spouses differently, rather than supplying a reason for doing so. And DOMA bears no relation to who becomes a parent and hurts rather than helps an entire class of children solely because their parents are same-sex spouses.
More below the fold…
In its opening brief, BLAG had argued that DOMA is rational because it provides uniformity in marriage laws. It protects the states’ interest, they said, by having one sweeping policy. Plaintiffs respond to that argument by suggesting
Perhaps recognizing that its purported federal interests fall woefully short, BLAG reaches for the states’ interests in marriage, as if they can somehow be incorporated by reference. But as the sole sovereigns that regulate access to civil marriage, the states have interests DOMA does not and cannot advance. Only the states confer marriage on committed couples such as Ms. Golinski and her spouse. Philosophical disagreements on the part of some members of Congress do not vest the federal government with the same interests as the states, which uniquely govern marital eligibility.
And lastly, in its summary, plaintiffs suggest that reliance on Baker v. Nelson and Adams v. Howerton is misguided as neither survive constitutional review.
While BLAG had pushed for the court to review the case under the more deferential rational basis standard, plaintiffs argue that the district court was correct to apply heightened scrutiny. Plaintiffs suggest that it is important to apply heightened scrutiny especially because of two points:
So long as the appropriate level of review remains an open question, the issue must be re-litigated in each case, and the government remains without guidance about the standards to which it must conform. Moreover, uncertainty about the level of scrutiny incorrectly signals that ongoing discrimination against lesbian and gay men may be tolerable.
Plaintiffs submit that while BLAG seems to view the issue of heightened scrutiny as settled and precluded by other precedents, the Supreme Court has not actually decided on the level of scrutiny applicable to laws affecting gays and lesbians. The closest they came to addressing the level of scrutiny was in Romer v. Evans in 1996, striking down Colorado’s Amendment 2 as unconstitutional under rational basis review. The Court chose to avoid questions over the level of scrutiny since Amendment 2 so easily failed even rational basis.
And Ninth Circuit precedent on the level of scrutiny for laws affecting gays and lesbians has been undercut by newer Supreme Court precedent. High Tech Gays applied rational basis review to laws impacting gays and lesbians, but it did so based on a now-overruled case Bowers v. Hardwick (overruled by Lawrence v. Texas in 2003.) Plaintiffs write:
High Tech Gays relied in significant part on Bowers v. Hardwick, 478 U.S.186 (1986), concluding that laws classifying lesbians and gay men for adverse treatment are not subject to heightened scrutiny “because homosexual conduct can. . .be criminalized.” High Tech Gays, 895 F.2dat 571. Lawrence v. Texas renounced that premise. 539 U.S. 558, 578 (2003).
And High Tech Gays also relied on the assumption that homosexuality is “behavioral” rather than innate. The Supreme Court, plaintiffs suggest, has discarded that premise in Christian Legal Society v. Martinez. Lastly, High Tech Gays erroneously held gays and lesbians to be politically powerful and thus unable to be considered a suspect class.
The plaintiffs then discuss the criteria that is generally associated with suspect classifications:
(1) Lesbians And Gay Men Have Endured A Long History Of Discrimination.
(2) Sexual Orientation Bears No Relation To The Ability To Contribute To Society.
(3) Lesbians And Gay Men Are A Politically Vulnerable Minority.
(4) This Court Already Has Reaffirmed That Sexual Orientation Is A Core, Defining Trait.
For the first argument, plaintiffs point to High Tech Gays itself as well as Lawrence v. Texas and other cases to show that gays and lesbians have indeed endured a long history of discrimination. They reference the Justice Department’s earlier brief in Golinski which detailed this history.
The second consideration was backed with undisputed expert testimony:
Undisputed expert testimony in this case confirms that lesbians and gay men are productive, contributing members of society who support their families and nurture their children. (S.E.R. 861, 867-69);see also Perry, 704F. Supp. 2d at 1002 (“by every available metric. . . as partners, parents and citizens, opposite-sex couples and same-sex couples are equal”);High Tech Gays v. Def. Indus. Sec. Clearance Office, 668 F. Supp. 1361, 1374 (N.D. Cal.1987), rev’d in part on other grounds, 895 F.2d 563 (9th Cir. 1990); Watkins, 875 F.2dat 725 (Norris, J., concurring).
For the third contention, plaintiffs say that political powerless is not required for suspect classifications but it is one of the factors the Supreme Court has considered before. Plaintiffs note that the consideration is based on relative and not absolute political powerlessness:
This consideration examines relative political powerlessness, i.e.,whether the “discrimination is unlikely to be soon rectified by legislative means.” Cleburne, 473 U.S. at 440. High Tech Gays erred by requiring a finding of absolute rather than relative political powerlessness, fatally “skew[ing] equal protection analysis as ordained bythe Supreme Court.”
Even though, for example, racial discrimination was prohibited by three constitutional amendments and some acts of Congress, racial classifications are still considered suspect. And even though women were included in federal civil rights laws, the Supreme Court still applied heightened scrutiny to laws classifying them.
As plaintiffs put it:
To this day, lesbians and gay men remain unprotected in a majority of states against discrimination in the most basic transactions of ordinary life, including in private employment, housing, and public accommodations. (Id. 908-10.) Almost four decades after the first federal sexual orientation antidiscrimination legislation was introduced, no such legislation has passed.
On the issue of immutability, plaintiffs note that the Ninth Circuit has affirmed and re-affirmed that sexual orientation is an immutable characteristic in several cases: Hernandez-Montiel v. INS, Thomas v. Gonzales, and Karouni v. Gonzales.
Plaintiffs also contend that DOMA merits heightened scrutiny as a sex-based classification, and because DOMA impermissibly burdens substantive due process rights. As to the first argument, plaintiffs say that BLAG has admitted that “Ms. Golinski would qualify for spousal health coverage if she were a man married to a woman, but is ineligible as a woman married to a woman.
And they say that any contention that Ms. Golinski should have married a man rather than a woman to have her marriage respecte is impermissible sex stereotyping.
They then address an argument that has come up repeatedly regarding both DOMA and marriage equality: namely the idea that it isn’t discrimination or a violation of equal protections to ban (or in the case of DOMA, refuse to recognize) same-sex marriage because no one is actually disallowed a marriage license; they just have to marry someone of the opposite sex. Or, in legal argument terms, since the law is applied equally to all people, it can’t be discrimination. Plaintiffs write, however:
DOMA is no less invidious because it equally denies men and womeneligibility for a same-sex spouse’s insurance coverage. Loving v. Virginia, 388U.S. 1 (1967), discarded “the notion that the mere ‘equal application’ of a statute containing racial classifications is enough to remove the classifications from the Fourteenth Amendment’s proscription of all invidious racial discriminations.” Id. at 8; see also McLaughlin v. Florida, 379 U.S. 184, 191 (1964).
Just because a gay person is legally allowed to marry someone, as long as they’re of the opposite sex, it doesn’t mean gays and lesbians are equally protected under the law.
Another interesting argument made by plaintiffs is that the Supreme Court has held that equal protection principles apply both to individuals and to one’s committed relationship. They cite Loving v. Virginia as saying that it classifies on the basis of interracial relationships and is thus a violation of equal protection.
And as to the substantive due process argument, plaintiffs say that DOMA violates their due process right to liberty in building a family life together. Plaintiffs close their heightened scrutiny application arguments by noting that BLAG has not even suggested that DOMA is constitutional under heightened scrutiny.
But even if heightened scrutiny is not applied, plaintiffs contend DOMA fails even rational basis. They say that rational basis is typically deferential but when laws burden a group that is subjected to animus, “courts more rigorously examine the fit between legislative means and ends, requiring substantiation that the differential treatmentin fact advances a legitimate government interest.”
Even under rational basis, plaintiffs contend that:
(1) DOMA Cannot Be Justified Based On An Interest In Uniformity
Plaintiffs suggest that marriage laws have never been dictated by the federal government; states were always free to determine who is married and who is not, and the federal government has consistently relied on those determinations:
But the federal government has long accepted significant inconsistencies among states affecting determinations of marital status for federal benefits. Marriage eligibility requirements have always varied over time and across state lines.
It wasn’t until DOMA that this tradition was interrupted:
And yet, until DOMA, the federal government never imposed “uniform” standards preempting any of these state law variations. Rather, “the relevant status quo prior to DOMA was the federal government’s recognition of any marriagedeclared valid by state law.” Windsor v. US
(2) DOMA Cannot Be Justified By An Interest In Preserving The Public Fisc Or Prior Legislative Judgments.
To this argument, plaintiff notes that in 1996 the House actually rejected attempts to determine DOMA’s budgetary impact. And a report which came out later suggested that DOMA actually costs the government money, anyway. Because of this later report, BLAG’s argument is questionable:
Even if the possibility of cost savings wasa legitimate and rational basis for DOMA when enacted, BLAG could no longer rely on this rationale, negated by subsequent developments.
And plaintiff asks why same-sex couples are the ones who have to bear the burden of saving the government money. There has to be at least a rational reason to classify people, and plaintiff questions a classification that makes gays and lesbians solely responsible for government cost-saving.
(3) DOMA Cannot Be Justified As A Rational Act Of “Caution.”
Plaintiffs argues that DOMA was never intended as a temporary measure but was a uniform definition of marriage:
DOMA was not framed as a temporary measure and instead “preempt[ed] any opportunity to test the impact of state laws evolving to recognize same-sex marriage.” Dragovich, 2012 U.S. Dist. LEXIS 72745, at *34. This Court in Perry rejected a similar “caution” rationale given that Proposition 8, like DOMA, erected a barrier to incremental policy-making and lacked any mechanism, such as a time-specific moratorium, for studying the issue. 671 F.3dat 1090
Plaintiff suggests the “caution” rationale implies that right now there is no rational basis but in the future someone could come up with one if they try:
The “caution” rationale essentially is an argument that someday a rational basis may surface to justify DOMA, even if none existed in 1996 or exists today. Nothing in equal protection law, however, permits the government to discriminateagainst a disfavored group today in the hope that a legitimate excuse for doing so might materialize tomorrow.
And plaintiff suggests DOMA doesn’t “preserve” heterosexual marriage:
States continue to determine, independent of DOMA,whether to recognize marriages of same-sex couples, and a growing number do.
(4) DOMA Cannot Be Justified As An Attempt To “Encourage Responsible Procreation.”
Plaintiff takes down this argument thus:
This not only is a wholly irrational justification for DOMA, as discussed below, but also fails to explain why the constitutionally limited power of the federal government should be used to impose a single nationwide federal marriage policy preferring the interests or needs of different-sex couples and their children over same-sex couples and theirs, rather than deferring to the states on a subject properly within each state’s province.
The main argument against this claim is that any attempt to “encourage responsible procreation” actually has no rational relationship to the law in question. Section 3 of DOMA contains nothing related to encouraging responsible procreation; it is only a definition of marriage.
As evidence that gays and lesbians don’t make good parents, BLAG’s amicus cited the highly-criticized study that is currently under academic investigation:
BLAG’s amicus cites a recent paper by Mark Regnerus purporting to present empirical evidence of differences in outcomes for children raised by lesbian and gay parents. (Brief of American College of Pediatricians, at 6-8.) This study, however, compared children of “intact biological famil[ies]” not to children raised by “intact” same-sex couples but instead primarily to children raised by single parents and in unstable family settings, with loosely-applied criteria for categorizing a parent as lesbian or gay.
Writing that encouraging biological parenting can’t justify DOMA, plaintiff suggests:
The federal government actively encourages, rather than discourages, parenting by people without biological connections to the children they rear, including through numerous supports and protections for foster care and adoption.
In short, plaintiff contends that this stated objective is not even rationally related to the law.
(5) Finding That DOMA Fails Rational Basis Review Does Not Require Concluding That Bigotry Motivated The Legislators Enacting It.
This is a response to BLAG’s assertion that plaintiff had suggested that legislators who voted for DOMA are bigots. Plaintiff write:
The Supreme Court has expressly recognized that legislation adopted without hostile intent can ultimately fail constitutional scrutiny upon deeper examination. See Lawrence , 539 U.S. at 579 (“later generations can seethat laws once thought necessary and proper in fact serve only to oppress”).
Despite the tossing around of labels like “bigot” that BLAG suggests, DOMA simply fails because it’s irrational:
DOMA failsconstitutional scrutiny for the simple reason that it is not even rationally related to a legitimate federal interest, let alone tailored to an important or compelling one.
And finally, they suggest neither Baker v. Nelson nor Adams v. Howerton are a barrier to this case.
Baker does not apply according to the plaintiff because it holds no precedential value over the question of “whether the federal government has sufficient justification to refuse all recognition to valid marriages already sanctioned under state law.”
And Baker doesn’t raise these types of federal law questions that DOMA litigation necessarily takes on.
And plaintiffs contend that doctrinal developments, in Bowers, Romer, and Lawrence have eroded Baker substantially.
As to Adams v. Howerton the plaintiff suggest that the case did not involve displacing a state marriage law with a federal one. And Adams had relied on a statute saying that gays and lesbians have a “psychopathic personality”, and this is no longer good law. Later precedents such as the ones listed above have also undercut reliance on that case. And the plaintiff contends that Adams is no longer good law because:
(1) “never produce offspring,” (2) “are not recognized in most, if in any, of the states,” and (3) “violate traditional and often prevailing societal mores.” 673 F.2d at 1042 43. The first assumption is manifestly incorrect. See Perry , 671 F.3d at 1077 (under California law, same-sex couples “[r]aise children together, and have the same rights and obligations as to their children as spouses have”). The second is no longer true, and thus Adams never had the opportunity to consider the constitutionality of singling out certain marriages validly entered under the laws of multiple states for denial of all federal recognition. The third rationale now is precluded as a matter of law. (See Lawrence.)
Plaintiff asks the Ninth Circuit to affirm the judgment based on those arguments. DOMA is not even rationally related to a legitimate interest, nor does it advance any substantial government interest, according to the plaintiff.