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.
Today:
DOMA reflects what Congress believed was an appropriate response to this ongoing debate in the States.
Smelt:
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.
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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
I’m not a lawyer at all, and I haven’t gotten around to reading this brief (yet), but doesn’t the language you quoted leave itself conspicuously vulnerable to an equal protection angle of attack? I mean it says right there “mutual status”. The statement that there is no fundamental right to marriage-based federal benefits is, again, an awfully conspicuous red herring.
Geidner, you’re as big a political hack as you are big around the waist. My lord, you herald this story with your typical talking point (a.k.a. BS) “measured.” You will do ANYTHING to carry the water for the Obama administration and the Democrat Party.
In between bites of that jelly doughnut, you write that this brief will “doubtless will leave some unsatisfied.” You would assuredly be one “unsatisfied” if this exact brief were done by a GOP Justice Department.
Now you’ll scream in your high-pitched nasal voice, “Well no Republican would ever write a brief like this one.” Be that as it may, have some journalistic integrity and impartiality. This brief is lousy. Stop parsing just so you can defend the Democrat Party. They’re not going to read your blog and give you a job. Hack.
I’m not exactly sure what you’re arguing. The DOJ has an obligation to defend this law on the books. You can’t just override this one. If, on the other hand, a Judge (either at the Federal or Court of Appeals level) states that this law is unconstitutional, expect the DOJ to stop defending it at that point.
Chris, I’m not sure that he can be more clear: He’s the “Anti-Geidner,” so whatever I say, he must parrot the opposite.
Anti: As to your substantive critique, such as it is, you can go all the way back to my Smelt brief post, which I’ve linked to in this post. This is the sort of brief that, on that day, I wrote I’d like to see Justice submit. DOJ’s job is to defend the law. The lawyers on the plaintiffs’ side are more than adequately able to raise the issues to present to the Court as to why this law should be struck down. It is the judiciary’s job to take those arguments and make a decision. I’m good with that, what with it being our chosen legal system and all.
Nobody is forcing you to read this law blog, you orangutan-troll. Where do you think you are, a Sarah Palin rally? Banging your fists on your chest, and hurling insults, shows your wholesale lack of simple excitement, and couth.
If you believe that law dork’s brief is so lousy, let us see what you can produce you vapid, flea-brain, mama’s boy. Chris G, and his talents, will change the world, and you’re nothing more than a crazy drunk festering behind a computer screen who can’t do anything about it.
“Anti-Geidner,” get a life, you lame slob!
Flex, we can *all* try to keep comments civil — no matter what others do. Thanks.
Screw Obama!
That was insightful, but to meet the Complete Pointlessness Standards set so capably by Anti, you’ll need to add length.
I am not a lawyer, but as I understand it the case of Lawrence v. Texas was decided on substantive due process grounds using, according to many legal scholars, a “heightened scrutiny” test (certainly not a rational basis test. If a heightened scrutiny test applies to due process grounds, why does it not apply to an equal protection argument?
Lawrence is grounded in two separate lines of precedent. One is the Griswold-Roe-Casey line of privacy cases, in which the idea is that the government should not interfere in matters like using condoms or obtaining an abortion beyond what is necessary for protecting citizens’ health and safety. This involves using a level of scrutiny higher than rational basis, because there is a constitutional right to privacy.
The other, newer line of precedent comes from Romer v. Evans, which states that laws used to express disapproval of homosexuals or homosexuality do not meet the “rational basis” standard; the Court does not consider animus toward homosexuals to be a rational basis for a law.
Kennedy’s opinion in Lawrence does not acknowledge that he is using “heightened scrutiny” for laws that discriminate against homosexuals. It is moreover questionable that that is his entire framing of the issue, given that his opinion strikes down not only the Texas statute under which Lawrence and Garner were prosecuted (which only prohibited homosexual sodomy), but rather nullifies ALL anti-sodomy statutes (including those in Georgia and Virginia, which prohibited heterosexual sodomy as well). Had Kennedy thought the law problematic only for its discrimination against same-sex couples, he could have adopted O’Connor concurrence, which would have left the GA and VA statutes standing.
Nice summary, Chris (except for “whims,” which I don’t believe is justified).
DOJ finds it objectionable that federal benefits would vary from state to state — seemingly unaware that benefits vary now from household to household.
Did DOMA maintain the status quo? If you think the status quo was limiting benefits to heterosexual couples, sure. If you think the status quo was deferring to the states for the definition of marriage, not at all. Status quo is a fuzzy concept.
Yeah, I assume that the other side’s brief emphasize the reality that this clause of DOMA doesn’t actually maintain the federal government’s historic relationship to marriage at all–but instead delivers the lower level of respect available in any state (no recognition) to all same sex couples regardless of marital status.
When is oral argument? I’ve become a junkie since Varnum.
which everyone agrees went too far
Aaaaand I can pretty much stop reading there, then.
Not everyone, U.P.
In my haste to remind people that I *had* voiced concerns with the original Smelt brief, which you might recall nonetheless led to quite a bit of disagreement with me from the gay community, I skipped over the fact that you and others argued quite forcefully that handing the brief over to a “true believer” might be a smart move.
Apologies.
I agree with your post where you say that it’s more appropriate for the DOJ, in its essentially mandatory role of defending Congressionally-enacted statutes, to refer to what Congress believed rather than stating something as an objective fact. But I still think the people who are having ongoing freakouts over the citations to the differences among states’ marriage laws (OMG THEY CALLED US PEDOPHILES) are silly.
Indeed, those citations from the Smelt brief should now be thrown back in the DOJ’s face for the point that Bill and PhoenixRising note: in all other cases, when states have had differing marriage laws, the federal government has recognized as married couples whose marriage is recognized in the state where they reside. “Hey, remember in Smelt when you were talking about the first-cousin marriages and the 16-year-olds’ marriages? Those marriages were recognized by the federal government. Why aren’t ours?”
Fight the battle with your enemy’s weapons.