Putting aside DOMA, it's pretty huge that the administration is saying that it is apparently DOJ's position that classifications based on sexual orientation should be subject to heightened scrutiny. That makes them much harder to uphold than just applying rational basis scrutiny.
I'm not sure how I feel about this. Obviously I'd like to see DOMA repealed or declared inconstitutional, but I'm leery of the precedent this sets. It's not that hard to gin up some kind of constitutional challenge to a law (though there are obviously hoops to jump through like getting a court to recognize standing), and I don't like the idea of a future administration just lying down and accepting that, say, the ACA is unconstitutional.
I see that the administration has tried to define their objections in such a way as to set a high hurdle, but I don't trust future administrations to be so judicious.
I'm also interested in the statement that Congress can continue to defend the law. Is that normal? Does one party need to control a house of Congress to be able to do so?
I'm looking to LB as my opinion leader here. What say you, LizardBreath?
That's a pretty goddamn big deal.
Robert thinks it's less important than ACA, though, since that was a "big fucking deal." Fucking > goddamn.
Clearly the Obama administration was concerned that they were losing Andrew Sullivan over the deficit issue, and they needed to do something dramatic to bring him back on board.
Is "we will no longer bother to defend this in court" ethically any different from the popular "we will no longer bother to enforce this regulation" method of evading inconvenient legislation? I mean, all these government agencies have finite resources.
It's a big deal because it makes it a near-certainty that within 2 years we will have a SCT opinion deciding, one way or another, whether discrimination based on sexual orientation is subject to the same constitutional standards as sex discrimination. And it makes it much more likely that Kennedy will come to the correct conclusion on that point.
To KR, I don't know all the details, but apparently the DOJ isn't just dropping the defense and asking for judgment for the plaintiff; they want a reasoned opinion from the Second Circuit saying that sexual orientation gets more than rational basis scrutiny; if rational basis is the standard, then DOJ accepts that DOMA is constitutional, and DOJ is asking the Second Circuit to issue an opinion on the appropriate leek of scrutiny. The point is to set up the Supreme Court opinion mentioned above. That's a little different than simply refusing to defend a law tout court.
"level" not "leek.". I don't know if that makes the confusing comment above more clear. Anyhow, the bottom line is more "settle this important question, Supreme Court" than it is "ha ha lawyer tricksyness means we can escape from doing what Congress has said."
8.2: You're a lawyer and I'm not, but that sounds like splitting hairs to me. Although the United States "remains a party to the case" (they're the defendant, right?), "this Administration will no longer assert its constitutionality in court".
When the plaintiff's claim is the unconstitutionality of the statute, the government's concession is the whole shooting match.
Anyhow, the bottom line is more "settle this important question, Supreme Court" than it is "ha ha lawyer tricksyness means we can escape from doing what Congress has said."
"Settle this important question, Supreme Court, and by the way, our adversary's arguments are entirely meritorious" isn't a whole lot different from "ha hah we can escape from doing what Congress has said". Arguably it's even more tricksy, because it connives to get the issue settled at a higher appeals court rather than the trial court.
Again, I'd be delighted with an outcome that killed DOMA, but I'm not sure how to feel about the procedural issue.
(Yes, bob, that means I'm a liberal wimp. Go have your revolution without me.)
10 -- the difference is that the Court is not bound by the government's concession -- the court must still issue an independent opinion as to the appropriate level of scrutiny, which will then determine the case. The point is ultimately to force a judicial opinion, and the opinion could easily come out the other way. That's a big deal, but it's not the same thing as simply conceding a judgment.
I don't want to minimize how unusual this is, though, and it creates some weird enforcement problems; until the second circuit rules, is, say, a same sex couple legally married in Iowa where one of the spouses is a foreigner entitled to US citizenship? Would this be true in NY but not, say, in Denver? I don't know and haven't looked enough to figure out the answer.
I'm not sure it's problematic - in terms of principle, at least - for Presidents to refuse to enforce things on grounds of constitutionality. Yes, they're supposed to enforce what Congress sends them, but their oath is primarily to the Constitution. As long as they accept the Supreme Court as the ultimate arbiter, their action is basically just the opening thrust in a conventional constitutionality battle, right?
In practice, sure, it can be abused, but lots of stuff can be abused.
Well, it's not like the Second Circuit (or Supreme Court) won't get a lot of excellent advocacy for the sexual-orientation-discrimination-deserves-minimal-constituional-scrutiny position, not to mention that every higher Court to look at the issue has come out on the other side of the Government's current position, so I don't think that the government's concession will have an overwhelming impact on the ultimate opinion in this particular case, if I understand the details correctly.
Here's an OLC opinion (from 1994) on the president's duty to defend unconstitutional statues. http://www.justice.gov/olc/nonexcut.htm
a lot of excellent advocacy
Educate me about his. Who will provide the "excellent advocacy", if not the defendant? Can this be accomplished with amicus briefs? Can another party petition the court to represent the government as if it were an incompetent criminal defendant trying to refuse counsel? Why didn't this apply when California decided to take a dive on similar litigation? I'm genuinely curious.
Also on point: http://hunterforjustice.typepad.com/hunter_of_justice/2009/06/when-does-justice-department-decline-to-defend-statutes.html
To try this another way, it's much more troubling if the government refuses to uphold the constitutionality of a law in order to avoid a judicial determination of constitutionality -- e.g., in the health care context, saying "we agree with the plaintiff that the law is unconstitutional and we accept judgment against us, and accordingly we will stop enforcing the law now.".
That's different from making a concession about an argument precisely in order to force the courts to review the constitutionality of a law. The former is more of an end-run around Congress and the Courts; the latter is basically just pushing for a fast judicial determination of constitutionality.
17: The answer is complicated -- in the California gay marriage litigation, the California statute was defneded by proponents of Prop 8 when the state refused to do so, and the federal Ninth Circuit has sent the case over to the California supreme court to see whether the proponents had standing under California law to do so, or whether a deputy clerk of elections in Imperial County could intervene and . . . you get the point, it's complicated.
As a practical matter, though, in the DOMA litigation, the Second Circuit will at a minimum have amicus briefs and the opinions of other courts who have looked at the issue, and may grant intervention by some party (possibly Congress) or order briefing by a party. I'd have to look at it more closel to give a more precise answer.
Again, this is really, really, really unusual, but it's not quite the same thing as the government trying to take the issue off the table from the courts.
16: The linked analysis seems pretty reasonable: the president can refuse to enforce things, but should be sparing with this ability, giving Congress's opinion some benefit of the doubt and using the canon of constitutional avoidance, and should respect the Supreme Court as the final arbiter by, f.e., not refusing to enforce if it's pretty clear the Supreme Court will uphold it.
This is a good piece on why the DOJ's switch in position matters. It's really more about changing the overall culture of what constitutional arguments are acceptable than it is anything else. The odds that there will be real federal constitutional protections against discrimination for gay and lesbian people imposed by the Supreme Court in the near future got a lot better today.
Halford, hadn't you been real opposed to the strategy of the Prop 8 cases here. Something about how it was a vanity exercise for Olson, but the risk was that gay marriage could be found unconstitutional throughout the country by the Supreme Court? Does this change your take on that?
23: Thanks for that. The legal issues at play were still pretty opaque to me.
24 -- Yes, I was, and still (mostly) am. One of the main arguments from gay rights groups against the Boies/Olsen strategy was that it would screw up a longer-term strategy of pursuing DOMA cases and trying to persuade the DOJ.
However, this development today makes me much more optimistic and lessens the risk of a bad decision from the SCOTUS in the Prop 8 cases considerably. Today's move by the DOJ makes it much more likely that:
(a) that the DOMA cases, which are stronger for the side of gay rights, will get up to the SCOTUS first;
(b) that the ultimate question that the Supreme Court will be asked to decide is whether to apply "strict" or "intermediate" scrutiny (i.e., the standards that apply to race or sex discrimination) to laws that discriminate against homosexuals, rather than (as it would be in the Prop 8 case) to determine whether the ban on gay marriage in Prop 8 violates "rational basis" scrutiny -- i.e., whether it has any rational basis whatsoever;
(c) that the overall legal culture has changed enough to persuade Anthony Kennedy to hold that discrimination against gay people should be treated in the same manner under the constitution as discrimination against women.
Personally, I think the best outcome for the forces of humanity and justice would be a second circuit/DOMA case going up to the Supreme Court in the next year or so, while the Boies/Olsen California Prop 8 cases linger in the procedural morass in which they're currently stuck. And it seems like that outcome is pretty likely.
A professor of mine who has worked at Justice tells us that in cases like this (which are very rare), DOJ has to inform Congress, and Congress has its own legal office that will likely take up the defense of DOMA in the Second Circuit. Individual members can also seek to join in as amici or (less likely) intervenors. He also says that the bigger story is the administration's concluding that LGBT protections merit higher-than-rational-basis scrutiny.
brnaz at FDL analyzes.
Boies/Olson immediately ask for lift of stay;probably had advance notice of DoJ decision.
Terrific graphic.
The cynic in me wonders about the timing;when this will get in & out of SCOTUS;whether it can be decided next term;in order to drive the wingnuts batshit for the 2012 elections.
I have expecting Obama to do exactly this as he runs for re-election: play economics and budget to the right, and play social issues at the left. Obama has been out on the campaign trail once a week since the midterms, and has not met any unemployed once.
Obama wants enough turnout on the left to get himself re-elected, and enough turnout on the right to get a large majority Republican Senate so he can kill the entitlements and write his VAT tax.
But we can exchange our Goldman-Sachs gilded dog-collars as part of our universal marriage ceremonies.
and has not met any unemployed once.
According to whom?
Obama wants enough turnout on the left to get himself re-elected, and enough turnout on the right to get a large majority Republican Senate so he can kill the entitlements and write his VAT tax.
Is that even mathematically possible? Doesn't that require a lot of Obama voters who don't bother to vote for the Senate, or a lot of Republicans who don't bother to vote against Obama?
They're going to run Willie Stark as a 3rd party candidate to split the hick vote. (Yes, the original All the King's Men aired on Ovation last night.)
