Has Obama Administration Gone Over to the Dark Side in LGBT Issues?

For the second time in recent months, the Justice Department has filed a brief with a federal court arguing that a federal law that was on candidate Barack Obama's hit list was in fact constitutional. 

A few months ago, it was the Solicitor General's Office that argued in a brief to the Supreme Court that the military "don't ask, don't tell" policy was constitutional, and therefore a petition for certiorari filed by one of the plaintiffs in the 1st Circuit case, James Pietrangelo, challenging the policy, should be denied.  (That was not their only argument; they also said that the case did not create a circuit split requiring Supreme Court resolution, an arguable proposition but perhaps a losing one in light of the 9th Circuit Witt decision.  And they suggested, quite plausibly, that Witt, which will generate a full trial record if not settled, would be a more appropriate vehicle for Supreme Court consideration of the issues.)  Last week, the Court denied the petition, without explanation.

Now, just this past Thursday, a different branch of the Justice Department, the Civil Division, has filed a motion and brief with the U.S. District Court for the Central District of California, urging dismissal of Smelt v. United States, a case initially brought in state court and removed by the government to federal court, challenging the constitutionality of the Defense of Marriage Act (DOMA).  In the brief, the Justice Department argues that DOMA, a statute that candidate Barack Obama ran pledging to repeal, is constitutional and -- get this --does not discriminate against gay people, even though it says that our marriages are a nullity in the eyes of the federal government and need not be recognized by any state.  Furthermore, and absurdly, they argue that DOMA manifests "neutrality" by the federal government on the issue of same-sex marriage.  (Of course, this is not their only argument to dismiss the suit.  They have two plausible arguments, very well made in the brief, that could succeed in getting the case dismissed without a ruling on the merits: first, a sovereign immunity argument that -- in the procedural context of this case -- seems to make sense, and second, a standing argument that reflects rather poorly on counsel for the plaintiffs, who seems to have failed to allege any concrete injury to the plaintiffs in his complaint, if this brief is accurate in its characterization.)

DOMA, passed in 1996, provides in Section 2 that no state is obligated under the Constitution's Full Faith and Credit Clause (FFCC) to recognize a same-sex marriage contracted in another state.  At the time it was up for consideration in Congress, there was some controversy whether such a provision was anything other than political bluster, since it is pretty clear under FFCC cases from the past that in fact no state is obligated under the FFCC to recognize marriages from other states, as marriage recognition is really an issue of "comity," not constitutional command.  Of course, Section 2 of DOMA serves as a convenient way to signal to courts and state government agencies that they can refuse to recognize same-sex marriages from other states without having to do any of the legal analysis that would otherwise be required under comity principles.  But any state that does not want to recognize same-sex marriages from other states would be free to do so - and many have taken that step explicitly by passing state laws or constitutional amendments denying such recognition.  Whether Section 2 exists is really irrelevant to the issue.  The suit filed in federal court in Boston by Gay & Lesbian Advocates & Defenders (GLAD) doesn't even bother challenging Section 2, focusing entirely on Section 3, which is the much more important (and injurious) provision.

Section 3 provides that the federal government will not recognize same-sex marriages for any purpose, regardless whether any state allows such marriages to take place.  It is, in my opinion, a patent violation of the 5th Amendment's requirement that the federal government deal fairly with all residents of the United States, without unjustified discrimination. 

In its brief, apparently authored by W. Scott Simpson, a Senior Trial Counsel in the Civil Division in Washington, the Justice Department argues, quite plausibly, that the state court in which this lawsuit was originally filed lacked jurisdiction of the case, as individuals cannot sue the federal government in state court, and that under well-established precedents, the federal court would also have no jurisdiction of such a case brought up by removal from a state court.  This section of the brief seems quite reasonable to me, and should serve as a completely procedural and non-prejudicial ground for dismissal of the suit.  And the suit should be dismissed, in my opinion, because I would prefer to see this case litigated by competent, experienced attorneys who know how to do test-case litigation, and would not make the kind of fundamental errors that the attorney for Smelt and Hammer seems to have made in his complaint. 

Secondly, the brief argues that Smelt and Hammer, who married in California in July, lack standing to attack DOMA.  Federal courts do not have free-roving authority to decide any issue under the sun.  They are limited to deciding real cases and controversies that arise under federal law, or state law controversies that involve residents of different states or foreign individuals or governments.  The "real case and controversy" requirement means that a plaintiff has to have suffered a real injury under the federal statute or action they are challenging.  In this case, the Justice Department argues that the complaint filed by Smelt and Hammer does not allege any specific injury.  For example, they don't allege that while traveling outside California after being married, they were involved in some situation where recognition of their marriage was important and such recognition was denied to them in reliance on DOMA, and they don't assert that they desire to move to another state or acquire property in another state in their married status. Furthermore, even if they alleged as much, it is unclear that they would be denied recognition because of DOMA.  As I indicated above, it is reasonably well established that states are free under principles of comity to refuse to recognize marriages that violate their own public policy, and DOMA is essentially irrelevant to such a case.  Neither do they allege that they have sought any particular federal benefit available to married couples and been turned down as a result of DOMA.  According to the Justice Department brief, their action rests on the assumption that they will be turned down in the future based on DOMA, and that is not enough for standing. 

Here I would differ with the Justice Department's argument.  It seems to me that a validly married same-sex couple would have standing without having been rejected for a particular benefit, because applying for the benefit would be futile in light of DOMA.  For example, they could allege that they desire to file a joint federal income tax return, but due to DOMA they are denied that option.  To me there is a real case and controversy at this point, and perhaps Smelt and Hammer could win the standing argument, at least as to Section 3.  But they would have done well to actually apply for something and be turned down as a way to pin down this standing point.  In its DOMA lawsuit, GLAD challenges only Section 3, and alleges that each of its plaintiffs has in fact been denied a specific federal benefit despite being legally married in Massachusetts. 

The third basis for dismissing the case, according to the Justice Department, is failure to state a valid legal claim.  They argue that every legal ground presented by the plaintiffs for attacking DOMA is so lacking in any possibility of winning that the court should just dismiss the case.  Here is where the trouble comes, and why all of the LGBT litigation groups have blasted the Justice Department (and the Obama Administration, for after all the buck stops with the President for every act of his administration, regardless whether he was specifically aware of it).  Some of the arguments made are so specious and prejudicial that they sound atrocious coming from this administration.

The one that bothers me the most is the argument that there is no anti-gay motivation behind DOMA, merely a desire by Congress to pursue a policy of "neutrality" with respect to the issue of same-sex marriage in a situation where some states might allow such marriages while others would oppose them.  This is absurd.  Here is a thought experiment.  Prior to 1967, some states in this country absolutely prohibited a marriage between a Caucasian person and a person of a different race.  Other states did not take race into account in deciding who could marry.  There was quite a bit of controversy about these so-called mmiscegenation laws.  Suppose Congress decided that the federal government should pursue a policy of "neutrality" regarding such laws, by providing that for all purposes of federal law, only marriages that could be performed anywhere in the United States would be recognized by the federal government, thus allowing states that preferred to ban certain interracial marriages to do so without their citizens being required through their taxes to fund benefits for couples whose marriages they would disapprove.

Does that sound absurd?  Does it sound, in the historical context of the 1960s or earlier, like there is race discrimination going on?  Well, that's exactly what the Justice Department seems to be arguing here.  They actually say that taxpayers in states that forbid same-sex marriages should not be required through their taxes to fund benefits for same-sex couples from other states.  This is quite offensive.  Same-sex couples also pay federal taxes, and we are forced to subsidize different-sex marriages while being denied the very same benefits.

My husband and I (we married in Connecticut a few months ago) are denied more than a thousand federal rights and benefits, even though we have both been federal tax-payers for decades and have been together for 30 years, but any different-sex couple can meet, marry quickly, and immediately become eligible for those benefits.  But there is no discrimination against gay people in this, argues the Justice Department, because gay people are free to marry, just not partners of the same-sex, and they are free to marry in California, home of Smelt and Hammer (at least when they did so last summer), just not to have their marriage recognized by the feds.  The California Supreme Court totally dismantled this argument in its Marriage Cases decision of May 2008, as did the Connecticut and Iowa Supreme Courts in their more recent marriage decisions... but those were decided under state constitutional law.

The other sticky point of contention is the relevance of Baker v. Nelson.  Many lower federal courts have cited Baker v. Nelson as precluding any federal constitutional challenge to the exclusion of same-sex couples from marriage.  In that case, a gay male couple in the early 1970s who were denied a marriage license in Minnesota sued the state on a federal constitutional due process and equal protection theory.  They lost in the Minnesota Supreme Court and filed an appeal to the U.S. Supreme Court.  At that time, the Supreme Court was required to consider such cases on direct appeal, but it used the device of dismissing the appeal "for want of a substantial federal question" when the Justices felt the case had no merit.  They dismissed the Baker appeal on this basis.  This was before the modern gay rights movement really got going in the courts, before we won Romer v. Evans and Lawrence v. Texas, before the establishment of a growing body of case law protecting gay rights.  Clearly, what was not a "substantial federal question" in the 1970s is today a "substantial federal question." 

The Justice Department brief argues that the Smelt case should be dismissed because under Baker, no lower federal court could rule for the plaintiffs on an argument that denying recognition of their same-sex marriage violates due process or equal protection.  Technically, that argument may be correct.  That is, it may be that only at the level of the Supreme Court itself could this case be won, and therefore I can't fault the Justice Department for making the argument.  But it is getting quite tiresome to have that old Baker dismissal raised over and over again when it is more than thirty years old and the world of constitutional law has changed quite a bit in the interim.  So they can make the argument, but it should not determine the ultimate outcome of this case.  After all, the Supreme Court (if it gets that far, which is not likely) is not bound by Baker v. Nelson.

On balance, I would say that the Justice Department brief goes farther than it has to in making arguments to "get rid of this case," which is probably the instruction that was given to Mr. Simpson.  When a trial attorney is given the assignment to write a brief to get a case dismissed, it is not surprising that he throws in every argument he can find that has worked before in some case or other.  I would not fault him for doing so.  I fault his bosses, at the political level of the Department, for failing to have the political sensitivity to the President's claimed political agenda to see that some arguments should not be made in this brief.  (An earlier version of this post speculated about Mr. Simpson being a holdover from the Bush Administration, when staff positions at Justice were filled using a political litmus test, but a reader submitted the information that Simpson joined the Department during the Clinton Administration, when such a litmus test was not being used.)

Is this a case of the Obama Administration reneging on its promises?  Not yet, I would contend.  Obama ran on the proposition that these policies should be changed.  As a careful lawyer, he did not run on the proposition that these policies are unconstitutional, although one suspects that he probably believes they are.  But the President's personal beliefs on these matters and the arguments the Justice Department will make in the context of specific litigation are two different things.

Some have criticized the government for defending DOMA and DADT in the courts.  Actually, this is the Justice Department's job, especially in the case of statutes that have been upheld by the courts many times.  DADT has been under continual attack in the courts since the mid 1990s, and suits challenging DOMA date back almost as far, and neither have succeeded yet.  In a stand-off between the legislative branch and the executive branch about the constitutionality of a law, I'm not sure I would feel good about the executive branch being free to decide which validly enacted laws it is going to enforce.  That sounds too much to me like George W. Bush's position that as commander in chief he could ignore any law that gets in his way in carrying out his strategy for preserving national security.  Demanding that the President or the Attorney General refuse to enforce a law with which they disagree as a matter of policy because they believe it may be unconstitutional or because they advocate its repeal is a dangerous demand to make, and arguing that they should refuse to defend an existing federal statute in court comes dangerously close to that.

But I think now that we are half a year into the new administration, it is past time for Obama and Holder to start showing some leadership on the issues where the campaign made specific pledges.  It is time for the administration to move on DADT and DOMA, and not to sit back and wait for events to develop.  And it certainly is not time to mount an aggressive, and in some respects homphobic-sounding, defense of these statutes in the courts.

Comments

[Estraven]

As a bisexual who was fortunate enough to fall in love with a man, hence not to fall under DOMA when I married, I get a nice Federal tax exemption every year. I don't know the details of Smelt and Hammer's finances, but most married couples fall into the range where they get that exemtion, IF they are straight. Smelt and Hammer are most likely being denied that due to being a same-gender couple. There is your financial injury right there.

[Art Leonard]

Exactly so, but that needs to be alleged with specificity in the complaint in order to establish standing, according to most federal courts, and so the Justice Department brief argues that their failure to make any such allegations means they lack standing. I think an amended complaint is definitely in order....

[Art Leonard]

Some bloggers have exclaimed with disgust that Obama is comparing same-sex relationships with incest and pedophilia, but you can search the brief without finding those words. What they are referring to is a point that I made above - that under principles of comity, states have always had the right to refuse to recognize marriages that violated their own public policies. Well, among those public policies are statutes forbidding people to marry within a close degree of relation (like siblings, first cousins, aunts and nephews, etc.) and laws setting a minimum age at which people can marry. From this, the critics of the brief suggest that the Justice Department is analogizing gay relationships to incest and pedophilia. I think that is a hysterical stretch perpetrated by people seeking to generate outrage. States may have other policy reasons to refuse to recognize marriages - for example: marriages procured through fraud or deceit, marriages involving people incapable of giving legal consent, marriages by persons who are already married to somebody else, and thus not free to marry. And, since the hysteria generated by the Hawaii Supreme Court decision in 1993, many states now have laws forbidding marriages involving same-sex couples. That's just one on a list of half a dozen public policy reasons that a particular state may refuse to authorize marriage. I don't think that means the Justice Department is drawing any analogies between the different public policy reasons on these lists.

There is more than enough wrong with this brief as a matter of cockeyed constitutional law without stretching to generate spurious outrage.

[Jack]

It is not outrageous for gay bloggers to see in the DOJ's brief a comparison to cases of incest and pedophilia. That is exactly what non-lawyers will see, gay or straight. Lawyers live in a technical world. As you point out, the political oversight on this was very poor. The use of those cases gives political ammunition to anti-gay media and homophobes to point once again to how we are perverts. I know it does not read that way to a lawyer, but not everyone is a lawyer. I am tired of everyone defending Obama's willing executioners, as if the man in charge has no responsibility. His associations with Rev. James Meeks, Mary Mary, Donny McClurkin and other gay haters demonstrates clearly that he has no problem with associating with our most vicious enemies. He has never been for us. It was as cynical a ploy as any other politician has ever used to say he'd see to our civil rights. I will also point out that his Family, Faith and Values tour in CA was run with Douglas Kmiec at its head. Obama proudly displayed this on his website, but people didn't care. He said he who he was and the people did not care. This FISA-approving, pro-death penalty, gay hating, corporate shill fooled a lot of people.

[Art Leonard]

"Everyone" is not defending "Obama's willing executioners." In fact, they're taking quite a bit of heat at the moment.

Just a few points in response to the comment above. First, if we just supported politicians who only associated with our friends and eschewed all association with our opponents, we would be perpetual losers in the political game. In a highly fractured polity, only somebody who is willing to play coalition politics can ever attain anything nearly approximating an insider role. Obama is a big-tent kind of guy, and he's sitting in the White House today, unlike John Kerry or Al Gore or other unsuccessful Democratic presidential candidates. That must mean he has some idea of what it takes to win a presidential election, and I think ideological purity is not what it takes.

I think Obama is making big mistakes on his handling of LGBT issues at the moment. I think he could get away with an executive order suspending the operation of DADT and lots of folks in Congress would be RELIEVED that they don't have to confront that one for a while. I think his failure to take this route quickly is DUMB in light of the problems of recruiting and retaining various specialities in our 2-war-challenged military. And I hadn't figured Obama for DUMB in any respect, so I'm wondering what is holding him back, other than preoccupation with other issues. Surely he must know that it is not just the tiny gay community that is concerned with these issues - we also have our progressive allies who see Obama's moves on LGBT issues as indicative of bigger things.

As to the DOMA stuff, I'm inclined to think this was the product of career staff at Justice with inadequate supervision, and not an expression of Obama's point of view on DOMA. Clearly, in the campaign, he said the law was discriminatory, and he's said nothing publicly to disavow that view, so I think it is safe to assume that the brief was not articulating his position when it argued that the law was "neutral," one of the most absurd claims I've ever seen in any legal argument. I've been told that Scott Simpson, the most likely author of the brief, joined DOJ during the Clinton adminstration at the career - not political appointee - level, so he's not a Bush appointee, but promotions during the Bush years were on a right-wing litmus test basis, especially under Ashcroft and Gonzalez, so make of that what you will.

About the incest stuff - the brief was making a point that under well-established marriage recognition doctrine, states have always had the right to invoke their own public policies in deciding not to recognize marriages, and then cited examples. That examples include cases on incest and pedophilia, as I explained in my post, does not imply that the brief equates same-sex marriages with incestuous or age-inappropriate relationships. I agree, non-lawyers -- or lawyers trying to exploit the situation to make a point -- will seize upon it, and an appropriately sensitive DOJ lawyer attuned to the administration's political positions, would avoid citing those cases. But I hardly think it is fair to say, as some bloggers have screamed, that "Obama is equating same-sex relationships with incest and pedophilia."

Joe Solomonese comes a bit closer to accuracy in charging that the brief implies that our relationships are no more worthy of constitutional protection than incestuous relationships. At least that is a bit more subtle, and more like a fair criticism of the brief. After all, a state relying on its policy against interracial marriages to refuse to recognize one from another state would run up against the 14th Amendment in Loving v. Virginia, which held that states cannot restrict the right to marry on racial considerations. As of now, no federal court has held that the 14th Amendment requires opening marriage to same-sex couples, and Solomonese argues that the DOJ brief's contentions, if accepted by the courts, would cut off that argument. But, then, again, during the campaign, Obama stated he did not support same-sex marriage, so the brief's position is not inconsistent with Obama's on that point. I do think it's past time for him to rethink that position, however. He's a smart lawyer. Maybe he find a few hours to read the California and Connecticut and Iowa decisions. They should be very persuasive to somebody who taught constitutional law and studied it with Larry Tribe.

We progressive gay Democrats know that anybody who can get elected to the White House will break our hearts one some or many issues, but I really thought this time we had somebody of better quality than usual. I'm still reserving final judgement, but patience is wearing thin.

[Jack]

It would be nice to compare the government's current brief with the state of Virginia's list of cases in Loving.

How do you know Obama is a smart lawyer? He has never published anything about law. His "law review" presidency at Harvard produced the least cited volume in 30 years. Is he a smart lawyer because Larry Tribe made a phone call to get him an adjunct position at the U of Chicago?

Joe at HRC is a sellout. Before this election anyone with eyes to see could have known Obama's real position on GLBT rights.

It's OK, though. Even the SPLC, which identified Obama's spiritual advisor Rev. James Meeks as one of the top ten gay haters in the US, won't admit that this has any effect on Obama.

See no evil, hear no evil. And evil sneak up on you.

[Bruce]

Art: You say in your blog, "it is pretty clear under FFCC cases from the past that in fact no state is obligated under the FFCC to recognize marriages from other states, as marriage recognition is really an issue of 'comity,' not constitutional command."

Can you point us to an analysis that explains for us non-lawyers why this is so? Perhaps you have blogged about this in the past. I was under the impression that full faith and credit had to be given to divorces, driver's licenses, adoptions, and child custody orders. I was also under the impression that but for section 2 of DOMA, the FFCC would require interstate recognition of same-sex marriages absent a strong public policy in a state against recognizing such marriages. For example, New York recognizes a same-sex marriage from Connecticut.

[Art Leonard]

There have been quite a few law review articles on this subject of marriage recognition as a result of the same-sex marriage litigation over the past two decades. The obligations of Full Faith and Credit are at their strongest with court judgments. That's why adoptions and divorces are almost universally recognized under FFCC. Courts in Florida, where gays are prohibited from adopting kids, will enforce out-of-state adoption decrees for this reason. When you get away from court judgments, the obligations of Full Faith and Credit lessen, and the Supreme Court has recognized public policy exceptions. Marriage is one of those areas, and, if you read lots of marriage recognition cases, you may be struck, as I was when I first researched the issue, to discover little reference to the FFCC and lots of discussion of comity as being the governing principle.

In fact, if you read Martinez, the NY Appellate Division case from February 2008 that compelled Monroe Community College to recognize the Canadian same-sex marriage of one of its employees, you will see no reference to FFCC at all, because FFCC by its terms applies only to the states, not foreign countries. But some of the trial court decisions since then have involved marriages from Massachusetts, and they don't rest on FFCC either.