UPDATE 1:35 p.m. The government’s switch in position led swiftly on Wednesday to a plea by same-sex couples in California for the Ninth Circuit Court to clear the way, immediately, for them to marry under a federal judge’s ruling striking down the ban against their marriage under the state’s Proposition 8. The Circuit Court had stayed the judge’s ruling while it weighed an appeal. In asking that the stay be lifted, the same-sex couples’ lawyers cited the Holder letter (discussed below), as well as the delay of up to a year that now faces the courts’ ruling on Proposition 8 as a result of a review of a procedural issue by the California Supreme Court. The motion to lift the stay can be read here. The same-sex couples also have asked the California Supreme Court to move up the hearing on that issue to May instead of September; the motion to shorten the schedule in that proceeding is here.
With the approval of President Obama, U.S. Attorney General Eric H. Holder, Jr., notified Congress on Wednesday that the federal government will now argue in court that it is unconstitutional to withhold all federal benefits from same-sex couples who are legally married under their own state’s law. While the government will continue to enforce that part of the Defense of Marriage Act of 1996, Holder said a new evaluation has convinced officials that it violates the Constitution’s guarantee of legal equality. The new position will be advanced first in two new cases pending in federal courts in New York and Connecticut, but also will be put forth in other DOMA cases elsewhere. (A Justice Department news release discussing the new development is here.)
In two previously filed cases that the Administration has appealed to the First Circuit Court in Boston, its lawyers had defended the constitutionality of DOMA’s Section 3. That clause says that any act of Congress that deals with “marriage,” including any benefits for spouses, “means only a legal union between one man and one woman as husband and wife,” and that the word “spouse” in the law refers only to a husband or wife of the opposite sex. A federal judge in Boston had struck down the withholding of a number of benefits from same-sex couples legally married in Massachusetts, and those cases are now unfolding in the First Circuit Court.
The Administration, the Attorney General said Wednesday, reconsidered its position because it was facing two new lawsuits filed in a federal circuit — the Second Circuit — that now has no existing precedent on what level of constitutional scrutiny is to be applied to laws that treat people differently based on sexual orientation. The First Circuit, by contrast, has existing precedent that a law providing such differing treatment need satisfy only the minimum level of review — rational basis. The government’s defense in the Boston cases was based on that approach.
Facing a March 11 deadline for taking a position on the new New York and Connecticut cases (those states are in the Second Circuit), Holder said he had conducted a new review and concluded that laws treating people differently based on sexual orientation must satisfy a higher constitutional standard — “heightened scrutiny.” Applying that approach to DOMA’s Section 3, Holder said, he and the President had decided that it will not survive that level of scrutiny. Holder suggested in his letter to Congress that if lawmakers wished to take a different position, they were free to file briefs in pending cases to say so.
A federal law requires the Attorney General to notify Congress when the government will not defend in court the constitutionality of one of Congress’s enactments. That explained Holder’s letter Wednesday.
The letter noted that the Supreme Court has never settled the issue of what level of court scrutiny should be applied to laws treating people differently based on sexual orientation. But, Holder went on, the Court has issued a number of rulings that “set forth the criteria that should inform this and any other judgment as to whether heightened scrutiny applies.” He went on to say that “each of these factors counsels in favor of being suspicious of classifications based on sexual orientation.”
The DOMA ban on benefits for same-sex married couples is sweeping in scope. One vivid example of that is that, while Congress late last year repealed the 1963 law that barred gays and lesbians from serving openly in the U.S. military (“don’t ask/don’t tell”), that repeal law kept intact the ban on spousal benefits for gays and lesbians who remain in the service or retire, based upon the DOMA ban.
Even while telling the courts from here on that the government has switched position and now finds the DOMA ban invalid, Holder said that the President had required that the ban continue to be enforced by federal agencies, “unless and until Congress repeals Section 3 or the judicial branch renders a definitive verdict against the law’s constitutionality.”
Meanwhile, in the courts, Holder told Congress, the Justice Department will urge the courts to give Congress’s members “a full and fair opportunity to participate in the litigation in fhose cases.” Presumably, individual lawmakers would be allowed to file friend-of-court briefs, not enter the case directly as parties. In his public statement discussing the switch in position, the Attorney General conceded that “the wisdom and the legality of Section 3 of DOMA will continue to be the subject of both extensive litigation and public debate.”