The End of (part of) DOMA?
02-24-2011, 08:57 PM
I was hoping someone else would post this first so I would not have to try to explain all the legal geekery, I'll do my best to be neither incomprehensible nor tedious.
Yesterday the U.S. Attorney General wrote a letter to the Speaker of the U.S. House of Representatives informing him of the decision of the President of the United States not to further defend Section 3 of the federal Defence of Marriage Act (DOMA) against claims that it violates the Equal Protection clause of the Fifth Amendment of the U.S. Constitution.
Section 3 of DOMA
Equal Protection clause of the Fifth Ammendment
This is somewhat interesting as there is technically no such clause written. The ammendment as ratified reads as follows (my italics):-
Equal protection arises out of Section 1 of the Fourteenth Amendment
Section 1 of the Fourteenth Amendment
As you can see the Fourteenth only applies to the States and not the Federal Government.
In 1954 the Supreme Court of the United States ruled on Bolling v. Sharpe a case about racial segregation in the schools of the District of Columbia. In that ruling the court made the following findings:-
The precedent of this case is that the due process clause of the Fifth Amendment in effect also includes an equal protection clause.
That is a famous case (at least within legal circles) from 1954 so what it new, why the change of mind? To answer that we need to go further back to to 1938 in United States v. Carolene Products Co. This case involved 'filled-milk' which, apprently is skimmed milk that has had non-milk fat added back into it. The ruling on this case contains a number of footnotes, the fourth of which includes the following:-
Following on from this the Supreme Court has created 3 different levels of judicial scrutiny of laws with regard to equal protection.
The Supreme Court has never ruled on what level of scrutiny laws against gay-rights should be judged. Some lesser courts, including some circuit appeals courts, have previously ruled on this question and found in favour of the least demanding rational-basis test. However the Second Circuit Court of Appeal has never ruled on this question previously.
Recently, two cases were filed within the Second Circuit challenging Section 3 of DOMA as violating the equal protection 'clause' of the Fifth Amendment, Windsor v. United States and Pedersen v. OPM. These are cases about inheritance tax and health/social security benefits for same-sex couples, who were married in their home states, respectively. the Second Circuit courts could follow the non-binding precedents of other courts and judge these cases against the rational basis test. However given that a number of these precedents pre-date the Supreme Court case of Lawrence v. Texas which overturned the previous Supreme Court case of Bowers v. Hardwick (in which the Supreme Court ruled that laws against gay-sex were constitutional), the court is likely to reach its own decision on the level of scrutiny.
So far I have discussed fairly set legal principles and practice. Now things get a bit more slippery and flexible. The Department of Justice does have a general obligation to defend the laws of Congress in court. In order to properly defend Section 3 of DOMA the department must consider what under level of scrutiny the court will place it, given the uncertainty mentioned above the department had to decide for itself. The department decided that strict scrutiny ought be applied and that given the speeches of the legislators that passed DOMA it was undefendable.
This turns out to be (I think) very shrewd politics. All President Obama has agreed with a recommendation that Section 3 was legally undefendable and that the department has a duty to not waste court time nor tax-payers money defending the undefendable, and that it would be irrational to then continue defending Section 3 in other cases, even if rational-basis scrutiny was being used. If Republicans step in themselves to defend it, they torpedo their own plan to sticking to fixing the deficit. If the courts against Section 3 then that was their decision not Obama's and he continued enforcing Section 3 until the court ruled against it. If the courts uphold Section 3 then all Obama did was agree with some technical but erroneous legal reasoning, that ultimately did no harm any way. The more I learn of the man the less I like him and the more I admire his skill.
So what does all this mean? Section 3 will remain in force until a court orders against it. Only the Supreme Court has the power to strike down the law in its entirety across the who country, although (as I understand it) a circuit court of appeal can render a law effectively unenforceable within its jurisdiction). Even if Section 3 is struck down then that does not entail a right to same-sex marriage, just that the federal government must recognise them where the states do. However the same reasoning that federal government failed in equal protection by not recognising same-sex marriage could apply to the states in not performing them.
Did anyone follow any of that?
Yesterday the U.S. Attorney General wrote a letter to the Speaker of the U.S. House of Representatives informing him of the decision of the President of the United States not to further defend Section 3 of the federal Defence of Marriage Act (DOMA) against claims that it violates the Equal Protection clause of the Fifth Amendment of the U.S. Constitution.
Section 3 of DOMA
Quote:In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife.
Equal Protection clause of the Fifth Ammendment
This is somewhat interesting as there is technically no such clause written. The ammendment as ratified reads as follows (my italics):-
Quote:No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
Equal protection arises out of Section 1 of the Fourteenth Amendment
Section 1 of the Fourteenth Amendment
Quote:All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
As you can see the Fourteenth only applies to the States and not the Federal Government.
In 1954 the Supreme Court of the United States ruled on Bolling v. Sharpe a case about racial segregation in the schools of the District of Columbia. In that ruling the court made the following findings:-
Quote:...discrimination may be so unjustifiable as to be violative of due process.
Quote:...unthinkable that the same Constitution would impose a lesser duty on the Federal Government.
Quote:...racial segregation in the public schools of the District of Columbia is a denial of the due process of law guaranteed by the 5th Amendment...
The precedent of this case is that the due process clause of the Fifth Amendment in effect also includes an equal protection clause.
That is a famous case (at least within legal circles) from 1954 so what it new, why the change of mind? To answer that we need to go further back to to 1938 in United States v. Carolene Products Co. This case involved 'filled-milk' which, apprently is skimmed milk that has had non-milk fat added back into it. The ruling on this case contains a number of footnotes, the fourth of which includes the following:-
Quote:....whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.
Following on from this the Supreme Court has created 3 different levels of judicial scrutiny of laws with regard to equal protection.
Quote:Strict scrutiny (if the law categorizes on the basis of race or national origin or infringes a fundamental right): the law is unconstitutional unless it is "narrowly tailored" to serve a "compelling" government interest. In addition, there cannot be a "less restrictive" alternative available to achieve that compelling interest.
Intermediate scrutiny (if the law categorizes on the basis of sex): the law is unconstitutional unless it is "substantially related" to an "important" government interest.
Rational-basis test (if the law categorizes on some other basis): the law is constitutional so long as it is "reasonably related" to a "legitimate" government interest.
The Supreme Court has never ruled on what level of scrutiny laws against gay-rights should be judged. Some lesser courts, including some circuit appeals courts, have previously ruled on this question and found in favour of the least demanding rational-basis test. However the Second Circuit Court of Appeal has never ruled on this question previously.
Recently, two cases were filed within the Second Circuit challenging Section 3 of DOMA as violating the equal protection 'clause' of the Fifth Amendment, Windsor v. United States and Pedersen v. OPM. These are cases about inheritance tax and health/social security benefits for same-sex couples, who were married in their home states, respectively. the Second Circuit courts could follow the non-binding precedents of other courts and judge these cases against the rational basis test. However given that a number of these precedents pre-date the Supreme Court case of Lawrence v. Texas which overturned the previous Supreme Court case of Bowers v. Hardwick (in which the Supreme Court ruled that laws against gay-sex were constitutional), the court is likely to reach its own decision on the level of scrutiny.
So far I have discussed fairly set legal principles and practice. Now things get a bit more slippery and flexible. The Department of Justice does have a general obligation to defend the laws of Congress in court. In order to properly defend Section 3 of DOMA the department must consider what under level of scrutiny the court will place it, given the uncertainty mentioned above the department had to decide for itself. The department decided that strict scrutiny ought be applied and that given the speeches of the legislators that passed DOMA it was undefendable.
This turns out to be (I think) very shrewd politics. All President Obama has agreed with a recommendation that Section 3 was legally undefendable and that the department has a duty to not waste court time nor tax-payers money defending the undefendable, and that it would be irrational to then continue defending Section 3 in other cases, even if rational-basis scrutiny was being used. If Republicans step in themselves to defend it, they torpedo their own plan to sticking to fixing the deficit. If the courts against Section 3 then that was their decision not Obama's and he continued enforcing Section 3 until the court ruled against it. If the courts uphold Section 3 then all Obama did was agree with some technical but erroneous legal reasoning, that ultimately did no harm any way. The more I learn of the man the less I like him and the more I admire his skill.
So what does all this mean? Section 3 will remain in force until a court orders against it. Only the Supreme Court has the power to strike down the law in its entirety across the who country, although (as I understand it) a circuit court of appeal can render a law effectively unenforceable within its jurisdiction). Even if Section 3 is struck down then that does not entail a right to same-sex marriage, just that the federal government must recognise them where the states do. However the same reasoning that federal government failed in equal protection by not recognising same-sex marriage could apply to the states in not performing them.
Did anyone follow any of that?
Fred
Life is what happens while you are busy making other plans.
Life is what happens while you are busy making other plans.
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Capricorn
