Tuesday, March 1, 2011

DOMA's Constitutionality Will Now Be Tested

In a surprise to everyone involved in lawsuits regarding gay marriage, on February 23 the United States Attorney General notified Congress that the Department of Justice, at the instruction of the President, would abandon its defense of a section of the Defense of Marriage Act (DOMA) that is now under attack in several lawsuits in US federal courts. The section that is being challenged defines the term, "marriage," as "a legal union between one man and one woman" for all purposes of federal law, including such things as federal personnel benefits, Social Security awards, and tax laws. The result is that a person who is considered legally married to a same-sex spouse in a state like Massachusetts is not considered married for the purposes of federal law.

Although this section of DOMA is not being defended, federal agencies were told to enforce it until it is repealed or "the judicial branch renders a definitive verdict against the law's constitutionality."

How can the President of the United States legitimately direct the Attorney General not to defend the constitutionality of a statute that has been enacted by Congress? What will be the effects on the pending lawsuits that attack the statute as an infringement on equal rights?

The answer to the first question is not as simple one might think. It is true that the US Constitution requires an oath from the President that he will "to the best of my Ability, preserve, protect and defend the Constitution of the United States." (Article II, end of Section 1.) Take note that it is the Constitution that the President is sworn to "preserve, protect and defend," not every statute that Congress may enact.

Later, the Constitution requires the President to "take Care that the Laws be faithfully executed." (Article II, Section 3.) It would seem that faithful execution of the laws would require the President to defend duly-enacted statutes in court. But one must remember that under the American system, the Constitution serves as the ultimate law, and a statute that conflicts with the Constitution is invalid. The faithful execution of the laws, therefore, sometimes requires a President to ignore a statute in order to uphold the Constitution when the two are in conflict.

While it is rare for a President to do this, in modern times Presidents of both parties have done so. A memorandum prepared for the Counsel to the President in 1994 during the Clinton Administration is available that lists some examples. (Its author, now in private practice in Washington, defended President Obama's action in Sunday's New York Times.) One may also examine the 1946 opinion of the Court in United States v. Lovett, which recounts how President Franklin D. Roosevelt refused to defend one portion of a law affecting federal employment, and that in INS v. Chadha (1982), indicating that the INS, a part of the Justice Department, refused to defend an immigration statute during the Carter and Reagan Administrations. In the presidency of George W. Bush, the Solicitor General informed the United States Senate by letter that the Department would not pursue an appeal of an adverse decision concerning a law forbidding the advertisement of marijuana on federally-funded mass transit.

But in most cases, the question of constitutionality is unclear, and there should be an able advocate to present the arguments in favor of constitutionality to the courts. It is troubling that President Obama has forbidden his Justice Department to do so when the appellate courts have not yet ruled. It is especially troubling that the President's conclusion on unconstitutionality depends on a "standard of review" that has not been adopted by any federal court to date in such cases.

The "standard of review" can make or break a case, for it determines how high a constitutional bar must be cleared to validate a law. Usually the "standard of review" is set high for alleged violations of fundamental rights and not so high for ordinary rights. The courts decide which rights are fundamental and what standard of review to apply. Under the highest standard, "strict scrutiny," applicable to such claims as race discrimination or violations of the First Amendment freedoms, statutes can rarely pass muster. Under the common standard, called the "rational basis" test, a law will often be upheld, because some sensible reason for the law is all that is required.

The reader will look in vain if he attempts to find these concepts in the text of the Constitution itself; they are inventions of twentieth century Supreme Court jurisprudence. In the past 50 years, the Court has taken contradictory positions on how it determines what rights deserve strict scrutiny to protect them and which are not. (Compare the opinions that upheld anti-sodomy laws in 1986 and invalidated them in 2004.) The decisions are complicated by an in-between status called "intermediate scrutiny." Race discrimination falls under strict scrutiny; sex discrimination comes under intermediate scrutiny; and discrimination against red-haired or left-handed persons receives only a check for a rational basis.

The President, perhaps recreating his salad days as a professor of constitutional law, has crafted a legal argument that intermediate scrutiny must be applied to DOMA. He says he cannot find any arguments powerful enough to sustain the law under that standard. This flies in the face of decisions in the First Circuit, where two of the DOMA appeals are pending, that indicate a rational basis standard of review is appropriate. In fact, there is no decision of an appellate court to date that adopts the President's opinion of the appropriate standard of review. In this respect, the legal basis of the President's action is highly questionable.

Also questionable are other aspects of the President's rationale. He assumes without any discussion that defining marriage discriminates against gays and lesbians because of their sexual orientation. But that is not at all obvious. People's right under Lawrence v. Texas to sexual activity of any orientation is not affected, in any form, under DOMA. Being married is beside the point. Many other types of devoted, loving couples are disqualified by DOMA from obtaining federal benefits: polygamists, close kin, and others who simply find a legal marriage to be irrelevant. Sexual orientation may not be the focus of what DOMA is about.

The President also relies on the immutability of sexual orientation. He says the alternative view, that it is capable of being changed, is refuted by "a growing scientific consensus." His only citation of authority for that claim is a book written by a federal appellate judge as a private individual. A review of the literature demonstrates that no such consensus exists. (1)

Moreover, it is wise to be very sceptical of social science research of any kind, for such research is often skewed by the biases of researchers, vague and poorly-worded surveys, lack of rigor in measuring cause and effect, sample selection biases, poorly-conceived research methods, and lack of sufficient sample sizes to provide acceptable confidence levels. In a related field, medical research, it has recently been found that over one-half of published studies reach erroneous conclusions because of poor research methods. Social science is notoriously more slippery than the physical sciences of medical research. If the research in the hard medical sciences cannot be relied upon, no one ought to put much confidence in social science studies of any type. (2)

Regardless of the weakness of his policy and legal analysis, the President's directive leaves the lawsuits without an advocate that will defend DOMA. What can be done to obtain such an advocate? It is not completely clear, but past precedent is somewhat encouraging. In INS v. Chadha, the Court of Appeals invited the Senate and the House of Representatives to file briefs separately as amici curiae in order to obtain the benefit of advocacy in support of the provision that the Justice Department and INS would not defend. Apparently each house engaged an attorney and filed a brief in the Court of Appeals and the US Supreme Court. In the case, United States v. Lovett, both houses agreed to engage a special counsel to appear on behalf of Congress in the trial court and then on appeal. In the DOMA cases, perhaps the House of Representatives can engage counsel for that purpose by itself, for it is unlikely that the Senate will go along.

In the alternative, the federal courts may allow Congress to enter the case as a party when the Justice Department bows out. The Court in Chadha commented, "We have long held that Congress is the proper party to defend the validity of a statute when an agency of government, as a defendant charged with enforcing the statute, agrees with plaintiffs that the statute is inapplicable or unconstitutional" (462 US 919, 940). If the Senate and House reach differing conclusions on whether such defense is advisable, is this precedent sufficient to allow one house to intervene? No one knows.

It would not be seemly for the federal courts to deny one house of Congress the right to defend a federal statute. American jurisprudence relies upon adversarial presentations to reach sound conclusions, and this is an important constitutional issue that will affect society in a fundamental way.

It is not likely that the courts will allow private parties to intervene for the purpose of defending DOMA, "because a private party whose own conduct is neither implicated nor threatened by a criminal statute has no judicially cognizable interest in the statute's defense, . . ." (Diamond v. Charles, 476 US 54, 56 (1986)).

Assuming that a defender comes forth, it is likely that he or she will present a stronger case in defense of DOMA than the Administration was presenting. The Attorney General admitted that the Administration had abandoned the grounds that Congress itself cited in support of DOMA. Supporters of family organizations doubted that this Administration would zealously defend the law.

If lawyers for Congress can now enter the cases, the President may even have done the defenders of DOMA a favor. Peter Wolfgang, executive director of the Family Institute of Connecticut, thinks so. "If anything, this increases the chances of the traditional marriage side,” says Wolfgang, because it will allow the real advocates of traditional marriage to fight and have a voice. Supporters of families may end up thanking President Obama for taking the Government out of the fight if it leads to a better defense of the law than his Administration was providing.

James S. Cole graduated from Harvard Law School and practices law in St. Louis, Missouri.

(1) One need only peruse such works as "Marriage and the Law: A Statement of Principles" by over 100 eminent legal and social science scholars, beginning with Mary Ann Glendon, Professor at Harvard Law School and Jean Bethke Elshtain, Laura Spelman Rockefeller Professor of Social and Political Ethics, University of Chicago Divinity School (Institute for American Values et al., 2006); M. Gallagher and J. Baker, Institute for Marriage and Public Policy, "Do Mothers and Fathers Matter? The Social Science Evidence on Marriage and Child Well-Being (2004); and The Witherspoon Institute, "Marriage and the Public Good: Ten Principles" (2006) for representative studies and results.

(2) J. Ioannidis, "Why Most Published Research Findings Are False," PLoS Med 2(8) (2005); D. Freedman, "Lies, Damned Lies, and Medical Science," The Atlantic, November, 2010.

This article is published by James S. Cole, and under a Creative Commons licence.

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