Attorney General says DOMA is
unconstitutional
By 365gay Newswire
02.23.2011 12:21pm EST
The letter below was just sent to John Boehner, from U.S.
Attorney General Eric Holder
LETTER FROM THE ATTORNEY GENERAL TO CONGRESS ON
LITIGATION INVOLVING THE DEFENSE OF MARRIAGE ACT
WASHINGTON
– The Attorney General sent the following letter today to Congressional
leadership to inform them of the Department’s course of action in two lawsuits,
Pedersen v. OPM and Windsor v. United States, challenging
Section 3 of the Defense of Marriage Act (DOMA), which defines marriage for
federal purposes as only between a man and a woman. A copy of the letter is
also attached.
The
Honorable John A. Boehner
Speaker
U.S. House of Representatives
Washington, DC 20515
Re: Defense of Marriage Act
Dear
Mr. Speaker:
After
careful consideration, including review of a recommendation from me, the
President of the United States has made the determination that Section 3 of the
Defense of Marriage Act (“DOMA”), 1 U.S.C. § 7, as applied to same-sex couples
who are legally married under state law, violates the equal protection
component of the Fifth Amendment. Pursuant to 28 U.S.C. § 530D, I
am writing to advise you of the Executive Branch’s determination and to inform
you of the steps the Department will take in two pending DOMA cases to
implement that determination.
While
the Department has previously defended DOMA against legal challenges involving
legally married same-sex couples, recent lawsuits that challenge the
constitutionality of DOMA Section 3 have caused the President and the
Department to conduct a new examination of the defense of this provision.
In particular, in November 2011, plaintiffs filed two new lawsuits challenging
the constitutionality of Section 3 of DOMA in jurisdictions without precedent
on whether sexual-orientation classifications are subject to rational basis
review or whether they must satisfy some form of heightened scrutiny. Windsor
v. United States, No. 1:10-cv-8435 (S.D.N.Y.); Pedersen v. OPM,
No. 3:10-cv-1750 (D. Conn.). Previously, the Administration has defended
Section 3 in jurisdictions where circuit courts have already held that
classifications based on sexual orientation are subject to rational basis
review, and it has advanced arguments to defend DOMA Section 3 under the
binding standard that has applied in those cases.
These
new lawsuits, by contrast, will require the Department to take an affirmative
position on the level of scrutiny that should be applied to DOMA Section 3 in a
circuit without binding precedent on the issue. As described more fully
below, the President and I have concluded that classifications based on sexual
orientation warrant heightened scrutiny and that, as applied to same-sex
couples legally married under state law, Section 3 of DOMA is
unconstitutional.
Standard
of Review
The
Supreme Court has yet to rule on the appropriate level of scrutiny for
classifications based on sexual orientation. It has, however, rendered a
number of decisions that set forth the criteria that should inform this and any
other judgment as to whether heightened scrutiny applies: (1) whether the
group in question has suffered a history of discrimination; (2) whether
individuals “exhibit obvious, immutable, or distinguishing characteristics that
define them as a discrete group”; (3) whether the group is a minority or is
politically powerless; and (4) whether the characteristics distinguishing the
group have little relation to legitimate policy objectives or to an
individual’s “ability to perform or contribute to society.” See Bowen
v. Gilliard, 483 U.S. 587, 602-03 (1987); City of Cleburne v. Cleburne
Living Ctr., 473 U.S. 432, 441-42 (1985).
Each
of these factors counsels in favor of being suspicious of classifications based
on sexual orientation. First and most importantly, there is, regrettably,
a significant history of purposeful discrimination against gay and lesbian
people, by governmental as well as private entities, based on prejudice and
stereotypes that continue to have ramifications today. Indeed, until very
recently, states have “demean[ed] the[] existence” of gays and lesbians “by
making their private sexual conduct a crime.” Lawrence v. Texas,
539 U.S. 558, 578 (2003).
Second,
while sexual orientation carries no visible badge, a growing scientific
consensus accepts that sexual orientation is a characteristic that is
immutable, see Richard A. Posner, Sex and Reason 101 (1992); it is
undoubtedly unfair to require sexual orientation to be hidden from view to
avoid discrimination, see Don’t Ask, Don’t Tell Repeal Act of 2010,
Pub. L. No. 111-321, 124 Stat. 3515 (2010).
Third,
the adoption of laws like those at issue in Romer v. Evans, 517 U.S.
620 (1996), and Lawrence, the longstanding ban on gays and lesbians in
the military, and the absence of federal protection for employment
discrimination on the basis of sexual orientation show the group to have
limited political power and “ability to attract the [favorable] attention of
the lawmakers.” Cleburne, 473 U.S. at 445. And while the
enactment of the Matthew Shepard Act and pending repeal of Don’t Ask, Don’t
Tell indicate that the political process is not closed entirely to gay
and lesbian people, that is not the standard by which the Court has judged
“political powerlessness.” Indeed, when the Court ruled that gender-based
classifications were subject to heightened scrutiny, women already had won
major political victories such as the Nineteenth Amendment (right to vote) and
protection under Title VII (employment discrimination).
Finally,
there is a growing acknowledgment that sexual orientation “bears no relation to
ability to perform or contribute to society.” Frontiero v. Richardson,
411 U.S. 677, 686 (1973) (plurality). Recent evolutions in legislation
(including the pending repeal of Don’t Ask, Don’t Tell), in community practices
and attitudes, in case law (including the Supreme Court’s holdings in Lawrence
and Romer), and in social science regarding sexual orientation all
make clear that sexual orientation is not a characteristic that generally bears
on legitimate policy objectives. See, e.g., Statement by the
President on the Don’t Ask, Don’t Tell Repeal Act of 2010 (“It is time to
recognize that sacrifice, valor and integrity are no more defined by sexual
orientation than they are by race or gender, religion or creed.”)
To be
sure, there is substantial circuit court authority applying rational basis
review to sexual-orientation classifications. We have carefully examined
each of those decisions. Many of them reason only that if consensual
same-sex sodomy may be criminalized under Bowers v. Hardwick, then it
follows that no heightened review is appropriate – a line of reasoning that
does not survive the overruling of Bowers in Lawrence v. Texas,
538 U.S. 558 (2003). Others rely on claims regarding “procreational
responsibility” that the Department has disavowed already in litigation as
unreasonable, or claims regarding the immutability of sexual orientation that
we do not believe can be reconciled with more recent social science
understandings. And none engages in an examination of all the factors
that the Supreme Court has identified as relevant to a decision about the
appropriate level of scrutiny. Finally, many of the more recent decisions
have relied on the fact that the Supreme Court has not recognized that gays and
lesbians constitute a suspect class or the fact that the Court has applied
rational basis review in its most recent decisions addressing classifications
based on sexual orientation, Lawrence and Romer. But
neither of those decisions reached, let alone resolved, the level of scrutiny
issue because in both the Court concluded that the laws could not even survive
the more deferential rational basis standard.
Application to Section 3 of DOMA
In
reviewing a legislative classification under heightened scrutiny, the
government must establish that the classification is “substantially related to
an important government objective.” Clark v. Jeter, 486 U.S.
456, 461 (1988). Under heightened scrutiny, “a tenable justification must
describe actual state purposes, not rationalizations for actions in fact
differently grounded.” United States v. Virginia , 518 U.S. 515,
535-36 (1996). “The justification must be genuine, not hypothesized or
invented post hoc in response to litigation.” Id. at 533.
In
other words, under heightened scrutiny, the United States cannot defend Section
3 by advancing hypothetical rationales, independent of the legislative record,
as it has done in circuits where precedent mandates application of rational
basis review. Instead, the United States can defend Section 3 only by
invoking Congress’ actual justifications for the law.
Moreover,
the legislative record underlying DOMA’s passage contains discussion and debate
that undermines any defense under heightened scrutiny. The record
contains numerous expressions reflecting moral disapproval of gays and lesbians
and their intimate and family relationships – precisely the kind of
stereotype-based thinking and animus the Equal Protection Clause is designed to
guard against. See Cleburne, 473 U.S. at 448 (“mere negative
attitudes, or fear” are not permissible bases for discriminatory treatment); see
also Romer, 517 U.S. at 635 (rejecting rationale that law was
supported by “the liberties of landlords or employers who have personal or
religious objections to homosexuality”); Palmore v. Sidotti, 466 U.S. 429,
433 (1984) (“Private biases may be outside the reach of the law, but the law
cannot, directly or indirectly, give them effect.”).
Application
to Second Circuit Cases
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 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 Windsor and Pedersen, now pending in the Southern District
of New York and the District of Connecticut. I concur in this
determination.
Notwithstanding
this determination, the President has informed me that Section 3 will continue
to be enforced by the Executive Branch. To that end, the President has instructed
Executive agencies to continue to comply with Section 3 of DOMA, consistent
with the Executive’s obligation to take care that the laws be faithfully
executed, unless and until Congress repeals Section 3 or the judicial branch
renders a definitive verdict against the law’s constitutionality. This
course of action respects the actions of the prior Congress that enacted DOMA,
and it recognizes the judiciary as the final arbiter of the constitutional
claims raised.
As
you know, the Department has a longstanding practice of defending the
constitutionality of duly-enacted statutes if reasonable arguments can be made
in their defense, a practice that accords the respect appropriately due to a
coequal branch of government. However, the Department in the past has
declined to defend statutes despite the availability of professionally
responsible arguments, in part because the Department does not consider every
plausible argument to be a “reasonable” one. “[D]ifferent cases can raise
very different issues with respect to statutes of doubtful constitutional
validity,” and thus there are “a variety of factors that bear on whether the
Department will defend the constitutionality of a statute.” Letter to
Hon. Orrin G. Hatch from Assistant Attorney General Andrew Fois at 7 (Mar. 22,
1996). This is the rare case where the proper course is to forgo the
defense of this statute. Moreover, the Department has declined to defend
a statute “in cases in which it is manifest that the President has concluded that
the statute is unconstitutional,” as is the case here. Seth P. Waxman, Defending
Congress, 79 N.C. L.Rev. 1073, 1083 (2001).
In
light of the foregoing, I will instruct the Department’s lawyers to immediately
inform the district courts in Windsor and Pedersen of the
Executive Branch’s view that heightened scrutiny is the appropriate standard of
review and that, consistent with that standard, Section 3 of DOMA may not be
constitutionally applied to same-sex couples whose marriages are legally
recognized under state law. If asked by the district courts in the Second
Circuit for the position of the United States in the event those courts
determine that the applicable standard is rational basis, the Department will
state that, consistent with the position it has taken in prior cases, a
reasonable argument for Section 3’s constitutionality may be proffered under
that permissive standard. Our attorneys will also notify the courts of
our interest in providing Congress a full and fair opportunity to participate in
the litigation in those cases. We will remain parties to the case and
continue to represent the interests of the United States throughout the
litigation.
Furthermore,
pursuant to the President’s instructions, and upon further notification to
Congress, I will instruct Department attorneys to advise courts in other
pending DOMA litigation of the President’s and my conclusions that a heightened
standard should apply, that Section 3 is unconstitutional under that standard and
that the Department will cease defense of Section 3.
A
motion to dismiss in the Windsor and Pedersen cases would be
due on March 11, 2011. Please do not hesitate to contact us if you have
any questions.
Sincerely yours,
Eric
H. Holder, Jr.
Attorney General