As was announced earlier today, the Justice Department has determined that it will not appeal its loss in the case of Diane Schroer, “a retired Army Special Forces commander from Alexandria, Va., had been offered a job at the Library of Congress when he was a man, David Schroer,” and had the job “rescinded the day after Schroer told a library official he was going to have an operation to become a woman.”
This was a smart decision on the part of the Justice Department.
And before anyone asks how that doesn’t contradict my writing on the Justice Department’s obligations to defend the Defense of Marriage Act, Georgetown’s Nan Hunter does the work so I don’t have to:
This is the case that I have been saying for months would be an outrage if Justice decided to appeal. Unlike DoMA, it does not call into question the validity of any federal statute; from the defendant’s point of view, it finds that a particular employment decision was unlawful and implicitly directs the federal government not to discriminate based on gender identity. In a Republican Justice Department, however, an appeal would have been likely because the law is not settled on the question of whether gender identity discrimination violates Title VII (although the courts have been pretty steadily moving in that direction).
In other words, this is precisely the kind of case where DoJ traditionally has broad discretion not to appeal a decision that it has lost, where public policy concerns dictate otherwise.
Bookmark Prof. Hunter’s blog if you haven’t already!
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Chris Geidner is the award-winning senior political & legal reporter at BuzzFeed and has written for Metro Weekly, The Atlantic Online, The American Prospect, Advocate.com, Salon and other publications, as well as at his blog, Law Dork. He has appeared regularly on television commenting on current affairs, including MSNBC, PBS, HLN & Current. Prior to moving to D.C. in 2009, he served as an attorney on the senior staff at the Ohio Attorney General's Office and had earlier worked for a leading Columbus law firm. An extended biography can be found
Awesome!
For the umpteenth time, “faithfully execute” does not equate to “defend on appeal.”
The Constitution, one ought take five seconds to recall, does not require that there even be a DOJ, let alone that the DOJ must actually do anything.
The Obama DOJ is defending DOMA because the Obama DOJ is government, and government always defends its authority to expand its own power. Always. Not because it has to, but because it wants to.
All else is naivete on steroids.
I think there is also an important distinction between the DOJ’s Motion to Dismiss and this case, where they could choose to appeal a case.
I keep thinking about this… seems Motions to Dismiss are so common in the Federal Court but rarely granted – I mean, isn’t it standard operating procedure for a Defendant to try to get their case dismissed, through summary judgment or say, a motion to dismiss? — by no means am I defending the Motion as I do find it offensive on many counts and I don’t think the references to child marriage and cousin’s marrying were necessary.
I’m very happy they did not choose to appeal – it would have been political suicide at this point, IMO.
Wonderful. Thanks for posting the update and for the reminder to bookmark Prof. Hunter’s blog.
Wait, so did Schroer actually get to take his/her job after this was all said and done?
Not sure of the answer, but FYI, the correct pronoun is “her.”
The job probably was filled some time ago, but Schroer did get a nearly $500k judgment. Invest most of that now when the market’s low, and she may not need a job.
Chris, I enjoy and respect Nan Hunter’s writing on her demesne of topics, but I still disagree with what I interpret as your assertion that the DOJ demurring from issuing a response for the tranny case contrasts so much with DOMA.
As KipEsquire points out, there’s no constitutional or statutory obligation for the DOJ to weigh in on every single case. So yeah, it’s cool that the DOJ didn’t support the discrimination against the trans woman, but the DOJ also didn’t have to write page after page of homophobic, incorrect legal thinking for the DOMA case.
The DOJ can be right more often by demurring. In fact, as KipEsquire alludes to, the DOJ isn’t even wrong when it doesn’t respond — it has no obligation to file for every case. Or even to exist!
But if the DOJ “demurs” on DOMA, that’s basically making a statement that the Obama Administration deems DOMA to be clearly unconstitutional. Since I haven’t seen a very strong argument that DOMA *is* unconstitutional, on what basis do you expect the Obama Administration to declare it is?
Is this replying to something specific, or were you just finding a space to put it? And I’m not sure what you mean by “umpteenth time.”
The constitution “does not require” all sorts of really good, very necessary things. Which is why strict adherence to the constitution is a ridiculous endeavor that not even the people who wrote the constitution expected.