What a difference an informed Justice Department makes. The Department of Justice today responded to the Amended Complaint filed by the Gay & Lesbian Advocates & Defenders in Gill v. Office of Personnel Management et al.
The DOJ’s Motion to Dismiss (pdf) is measured in its defense of the Defense of Marriage Act, which doubtless will leave some unsatisfied, but it is far closer to the type of brief I’d expect the DOJ to file these days than the Smelt brief, which everyone agrees went too far.
Here is one small change that is the key to my understanding of the difference between an offensive brief and a measured, appropriate brief.
DOMA reflects what Congress believed was an appropriate response to this ongoing debate in the States.
DOMA reflects a cautiously limited response to society’s still-evolving understanding of the institution of marriage.
That is the key. The Justice Department is defending a congressional policy, which Congress determined was appropriate in 1996. It notes that the Administration’s policy is to defend those laws where “reasonable arguments” can be made in their defense. Gill, DOJ Motion to Dismiss, at 1.
On the substance of its defense of DOMA, DOJ plays a little too cute, parsing the marriage prohibitions as a state matter and DOMA as just a matter of federal benefits. Id. at 14 (”DOMA deprives same-sex couples of certain federal benefits that are tied to marital status. There is no fundamental right, however, to marriage-based federal benefits.”).
Later, DOJ expands this reasoning:
The asserted right on which plaintiffs’ claims rest in this case is not a right to marry. DOMA does not prohibit gay and lesbian couples from marrying, nor does it prohibit the States from acknowledging same-sex marriages. Instead, plaintiffs’ claims rest on an asserted right to receive federal benefits on the basis of their mutual status. There is, however, no fundamental right to marriage-based federal benefits.
Id. at 15.
DOJ then asserts that First Circuit precedent prohibits the District Court from considering this case under the strict scrutiny review urged, in part, by GLAD in its Complaint. Strict scrutiny review is the most search review, in which the government needs to show a “compelling interest” for the law and show that the law is “narrowly tailored” to that interest. DOJ argues:
The First Circuit has concluded, however, that sexual orientation does not constitute a suspect classification under the Fifth Amendment, and that holding is binding on this Court. See Cook v. Gates, 528 F.3d 42, 62 (1st Cir. 2008) (rejecting challenge to “Don’t Ask, Don’t Tell” policy regarding members of armed services) . . . .
Id. at 16. I’ll have more on that in a bit.
Then, in urging that DOMA be upheld under rational basis — the most deferential — review, DOJ goes into a new and interesting argument, essentially that DOMA prevents federal government benefits from being a mismatch differing by state based on the whims of those states. I’ve not seen an argument like this before:
As the state legislative and constitutional activity in the years since DOMA was enacted demonstrates, same-sex marriage is a contentious social issue. Given the evolving nature of this issue, Congress was constitutionally entitled to maintain the status quo pending further evolution in the states. Otherwise, “marriage” and “spouse” for the purposes of federal law would depend on the outcome of this debate in each State, with the meanings of those terms under federal law potentially changing with any change in the status of the debate in a given State. Federal rights would vary dramatically from State to State. Congress could reasonably have concluded that there is a legitimate government interest in maintaining the status quo and preserving nationwide consistency in the distribution of marriage-based federal benefits.
Id. at 18.
As it stated in its Smelt Reply Brief, DOJ notes that “the government does not rely on certain purported interests set forth in the
legislative history of DOMA, including the purported interests in ‘responsible procreation and
child-rearing.’” Id. at 19.
Regarding, the argument that “plaintiffs assert that OPM has authority to extend FEHB benefits to same-sex spouses,” DOJ argues that that is simply not true. Id. at 20-21. This is a succinct statutory interpretation argument that those interested can read in the brief.
DOJ finally raises standing challenges to some of the plaintiffs. As to Plaintiff Dean Hara, the widow of former U.S. Rep. Gerry Studds, DOJ simply argues that the initial part of his claim must go to the U.S. Court of Appeals for the Federal Circuit because of exclusive jurisdiction given to the Federal Circuit over “determin[ing] whether the survivor of a federal employee qualifies as a federal annuitant.” Id. at 23-25.
As to Plaintiff Nancy Gill and her spouse, Plaintiff Marcelle Letourneau, DOJ argues that they have no standing regarding the Federal Flexible Spending Account Program administered by OPM because the U.S. Postal Service, for which Gill works, does not participate in the program. Id. at 25-26. This seems, though, that it should be able to be amended so as to refer specifically to the U.S.P.S. flexible spending program.
That’s a review of the brief; I hope to have a corresponding analysis piece up over the weekend.
GLAD’s statement regarding the DOJ filing can be found blow the jump.
* * * * *
GLAD’s Statement on DOJ Motion to Dismiss Gill DOMA Lawsuit
The Department of Justice has filed a motion to dismiss today in Gill v. Office of Personnel Development, GLAD’s lawsuit challenging Section 3 of the Defense of Marriage Act.
Mary L. Bonauto, GLAD’s Civil Rights Project Director and co-lead counsel in Gill, said “Nothing in the government’s brief addresses the fact that DOMA is the sole exception in a long history of the federal government deferring to the states’ determination that people are married. Obviously we disagree with any argument that DOMA is constitutional. Married same-sex couples are being treated differently from other married couples. To us, that’s a clear-cut violation of the promise of equal protection.”
Gary Buseck, GLAD’s Legal Director said, “We’re seeking justice for the widows and widowers who are denied death benefits, for people who can’t get on their spouse’s health plan, for parents who can’t file taxes jointly and pay thousands extra each year that they could put away for their children’s education or family emergencies.”
“There is nothing in the brief that we are unprepared to deal with,” added Bonauto. “We’re pleased that the issues have now been joined and the case is moving toward resolution, because every day, an increasing number of families – not just our plaintiffs – are being harmed by DOMA. We’re confident in the justice of our cause and the strength of our case.”
GLAD filed its challenge to DOMA Section 3 in U.S. District Court on March 3, 2009, and filed an amended complaint in July on behalf of 8 Massachusetts married couples and 3 widowers who have been harmed by the law. In July, GLAD scored its first victory in the case when the State Department changed its passport name change policy and plaintiff Keith Toney was for the first time able to get a passport in his correct, married name.
Gill has been described as “a carefully planned case quietly underway in Massachusetts federal court [that] could be the gay marriage test with the greatest national impact” by the National Law Journal. More information on the case is available at www.glad.org/doma. The DOJ brief can be read at http://tinyurl.com/gill-doj-mtd .
Gay & Lesbian Advocates & Defenders is New England’s leading legal organization devoted to ending discrimination based on sexual orientation, HIV status, and gender identity and expression.
# # #
Popularity: 21% [?]