Saturday, February 26, 2011

Recent Questions Regarding President Obama's DOMA Decision

In the last few days several questions have arisen in articles dealing with the President's decision not to defend the lawsuits challenging DOMA, the Defense of Marriage act. This is an attempt to answer those questions for those who may not be familiar with the legal nuances involved.

The questions are:

Can the President refuse to defend the Constitutionality of a law;

Why did Obama seem to invite the Congress to intervene in the suit;

How can the President continue to enforce a law he thinks is Unconstitutional;

Exactly what is the Constitutional question in the DOMA cases;

If Obama's not defending the law, why is he staying in the case;

How can he think DOMA is Unconstitutional if he doesn't believe in gay marriage; and

Does this impact gays in the military following DADT repeal?

Can the President refuse to defend the Constitutionality of a law?

It doesn't happen often, but Presidents can refuse to defend laws that are challenged as unconstitutional. Holder's letter to Congress explaining the President's DOMA decision discusses the issue in general terms,
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 . . . . However, the Department . . . does not consider every plausible argument to be a “reasonable” one. . . . 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.

While this is a rare occurrence, the practice of not defending laws goes back for years as outlined in the article.
In 1989 . . . the George H.W. Bush administration refused to defend the constitutionality of federal affirmative preferences in the Metro Broadcasting case. In the 1982 Bob Jones case, the Reagan administration refused to defend an IRS policy denying tax exemptions to a university that practiced racial segregation for religious reasons. Significantly, both policies were ultimately upheld by the Supreme Court . . . .
Congress even acknowledges that this can occur which is why they enacted a law that requires the President to notify the Congress in the event of such a decision,
The Attorney General shall submit to the Congress a report of any instance in which the Attorney General or any officer of the Department of Justice . . . determines . . . . to refrain (on the grounds that the provision is unconstitutional) from defending or asserting, in any judicial, administrative, or other proceeding, the constitutionality of any provision of any Federal statute . . . .

So people can question whether President Obama should have taken this action, but they cannot question its legality or say it is unprecedented.

Why did Obama seem to invite the Congress to intervene in the suit?

He did it because he obeys the law. The same law that requires the President to report to Congress says he must do so
. . .within such time as will reasonably enable the House of Representatives and the Senate to take action, separately or jointly, to intervene in timely fashion in the proceeding, but in no event later than 30 days after the making of each determination . . .

All those who would ascribe some nefarious motive to that part of his letter are uninformed. He is scrupulously obeying the law, nothing more, nothing less.

How can the President continue to enforce a law he thinks is Unconstitutional?

This really involves two separate and distinct issues. First, the Constitutionality of DOMA was challenged. As discussed above, the President is generally obligated to defend laws against Constitutional challenge. However, there are circumstances when Presidents can decline to defend cases. He has decided that DOMA is no longer Constitutionally defensible and will now take that position in court.

On the second issue, the question is different. The short answer is that the President has a duty to enforce the law regardless of what he thinks about it. The President swore an oath,
I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.

The President swore to faithfully execute the Office of President. Foremost among the duties of the office are to "take care that the laws be faithfully executed." DOMA is the law. The President does not have the power to issue a binding ruling that DOMA is Unconstitutional. That power resides in the Supreme Court. Since the 1803 case of Marbury v Madison it has been accepted that only the Court can declare a law Unconstitutional. Unless that happens or until it is repealed, DOMA is the law of the land. If a President is presented with a law that he thinks is Unconstitutional he should not sign it. The same applies to every Member of Congress who votes on a law. But once passed and signed, it is the law.

There are some legal scholars who disagree, arguing that the President has no more obligation to enforce laws he thinks are Unconstitutional than to enforce the laws of another country. A detailed discussion of this position is beyond the scope of this article except to note that the real issue is "who decides if a law is Constitutional." If the President does, then there are only two branches of government and the Presidency can override the legislature at its will. If both the Court and the President decide, you have uncertainty and chaos. It the decision rests with the Court, you have certainty, order, and a true separation of powers. Thankfully, most Presidents have respected this third view and the circumstances where laws have been ignored are rare.

Exactly what is the Constitutional question in the DOMA cases?

The Constitutional issue presented in DOMA and the Holder's letter is straightforward, but a discussion requires some background. Section 3 of DOMA, says that for purposes of all Federal laws a marriage is only between a man and a women. In effect the Federal government will not recognize same sex marriages under state laws for purposes of anything the government does, from granting spousal benefits to child custody and alimony.

DOMA has been challenged in several different suits throughout the country. These suits challenge DOMA by arguing that it violates the Fifth Amendment guarantee of equal protection under the law. Astute observers will note that the Fifth Amendment, unlike the Fourteenth Amendment, does not include the words "equal protection." Rather, it guarantees that no person shall be
deprived of life, liberty, or property, without due process of law;

This creates an anomaly because the Fifth applies to the Federal Government while the Fourteenth applies to the states. The anomaly was resolved in the 1954 case Bolling v Sharpe, where the Supreme Court found that "the concepts of equal protection and due process, both stemming from our American ideal of fairness, are not mutually exclusive" and that it was "unthinkable that the same Constitution would impose a lesser duty on the Federal Government" than it does on the States. That ruling created the Fifth Amendment right of equal protection against the Federal Government.

Before getting to the President's DOMA decision we have to understand how courts analyze equal protection challenges to laws. First, the court decides the level of scrutiny that should be given the challenge. In cases of discrimination based on race, religion, and other so-called "suspect" classifications courts use something called "strict scrutiny." Suffice it to say, if strict scrutiny is applied in a case, the law is usually struck down. At the lowest end of the spectrum is the "rational basis" test, which is basically whether the challenged classification is rationally related to a legitimate governmental interest. In between is something called "heightened scrutiny," in which the government must show that the challenged classification serves an important state interest and that the classification is at least substantially related to serving that interest. Only after the court decides on the level of scrutiny does it look at the law to see if it satisfies that scrutiny.

The DOMA decision is all about the difference between rational basis and heightened scrutiny, which standard should apply to DOMA, and how it will affect the outcome.

This is what President Obama did. He has been defending DOMA challenges in Circuits where the courts have held that the rational basis standard applies to DOMA. In those case he has said DOMA satisfies that standard. But two recent cases arose in the Second Circuit, where no standard has been established. He and DOJ re-examined the question of the appropriate standard for those case and determined that the heightened scrutiny standard should apply. Furthermore, they determined that if that standard applies, DOMA will not meet the standard and is therefore Unconstitutional. The President also said since the United States was now taking that position in the Second Circuit, it would inform the courts in the other circuits that it would be arguing the same position in those cases.

If Obama's not defending the law, why is he staying in the case?

The simple answer is that DOJ is in these cases until the Court dismisses the case or dismisses the Government from the case. Defendants can't just drop out. Now Justice will argue that the new standard should apply and that the law is Unconstitutional under that standard but the court may not agree. While it doesn't happen often, there have been cases where a court has not agree with a DOJ interpretation that a law is Unconstitutional. In fact Holder recognized that a court may disagree with DOJ's position on heightened scrutiny, when he wrote,
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.

Also, some of these cases involve other issues, such as in one case wether an employee can actually sue the Office of Personnel Management. Those issues still need resolution. Finally, there will be timing and implementation issues that DOJ will want to weigh in on.

How can he think DOMA is Unconstitutional if he doesn't believe in gay marriage?;

People who ask this question are either cynical or don't understand this is a strength, not a weakness, of President Obama. It is well know that the President has said that his personal views on gay marriage are evolving but as of now, based on personal moral beliefs, he does not support it. So what you have is a President who is refusing to let his personal morality dictate his legal analysis of a Constitutional issue. How refreshing. Wouldn't it be nice if all Presidents and all Members of Congress, both Senators and Representatives, acted the same way.

Does this impact gays in the military following DADT repeal?

The final outcome most certainly affects gays in the Military following the repeal of Don't Ask, Don't Tell. In the future gays will be able to openly serve. When they can it is a certainty that there will be same sex marriages involving members of the military. As long as DOMA remains in force the spouses of those service members will not get the same benefits afforded to other spouses. In that sense they will be in the same position that same sex spouses of Federal civilian employees are today.

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