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DOJ – DOMA aftermath: Swell or tsunami?

Tuesday, March 1, 2011
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Political decisions are a lot like oceanic earthquakes. First, there’s the quake, and then there’s the wave. Nobody can tell just how significant the wave is until it reaches land and, sometimes, the wave has greater impact than the earthquake; sometimes, it’s just a swell.

So it is with the decision by the Obama Department of Justice to call the Defense of Marriage Act — or DOMA — unconstitutional. The news was a political earthquake for the LGBT community. Now, there’s the wait-and-see for how big an impact the announcement will have.

In this case, there are two waves to watch for — the legal and the political.

Legally, the decision by the government to stop defending DOMA doesn’t guarantee the law will be struck down as unconstitutional. That’s still in the hands of several courts. But the Obama-DOJ position significantly strengthens the likelihood of the law being struck down because it is up to the government to explain why it needs a law in the first place.

If the government can’t or won’t offer an explanation — beyond hate for the group of people the law disfavors — then the court (theoretically) cannot make up one for it and the law is struck.

Politically, the decision by the government to stop defending DOMA offers up a moment of truth for Congress. It can let the legal chips fall where they may, it can send its own attorney to court to explain a reason for the law, or it can ignore the court-bound challenge and pass yet another law to render gays as second-class citizens.

On the legal front, a federal district court judge in San Francisco gave the Obama DOJ until Monday to explain how it was going to defend denying a lesbian court worker in the 9th Circuit health coverage for her spouse, given its new position on DOMA.

The DOJ replied that the constitutionality of DOMA Section 3 –which bans federal recognition of same-sex spouses— doesn’t apply in the case of Karen Golinski. Furthermore, noted DOJ, the administration must continue to enforce DOMA “unless Congress repeals it or there is a final judicial finding that strikes it down.”

Interestingly, notes Jenny Pizer, head of Lambda Legal’s Marriage Project, DOJ did not seek a delay in the judge’s decision on this case, Golinski v. OPM, to invite Congress to intervene. Pizer called that “an apt and reasonable position in light of the fact that it’s been fully briefed, argued and submitted.”

That same day, Feb. 24, DOJ Assistant Attorney General Tony West sent a letter to the First Circuit U.S. Court of Appeals informing it that the president and attorney general had recently concluded that the courts should use a heightened level of scrutiny in reviewing laws based on sexual orientation. He further stated that DOMA Section 3 “may not be constitutionally applied to same-sex couples whose marriages are legally recognized under state law; and that the Department will cease its defense of Section 3 in such cases.”

The letter finishes by noting that the administration has an “interest in providing Congress a full and fair opportunity to participate in the litigation of those cases” and that it would continue as a party in those cases “to represent the interests of the United States throughout the litigation.”

Mary Bonauto, the lead attorney for Gay & Lesbian Advocates & Defenders in one of the two First Circuit cases, now consolidated as Massachusetts v. HHS, said that, while the DOJ is “stepping back from its defense of DOMA,” it is has not issued a letter, required by law, stating that it would stop enforcing DOMA.

Its letter to Congress on February 23 stated only that it believes DOMA is unconstitutional, that it would no longer defend the law in court, and that Congress should, if it chooses, join in the litigation.

“The DOJ is now on record with the court about its view that heightened scrutiny should be applied to any review of DOMA’s constitutionality and that DOMA fails that test,” said Bonauto. “All the same, it appears the DOJ will cease to defend DOMA only to the extent that the court determines that heightened scrutiny applies. If the court determines rational basis review applies, DOJ’s position is and has been that the newly invented justifications for DOMA (status quo, uniformity) are rational bases for the law.”

As hard as it is to predict what impact the DOJ announcement last week will make on the courts, it is even harder to predict its impact on the political landscape.

Immediately, it seemed but a ripple. The New York Times and Washington Post both said the immediate reaction was relatively mild.

In fact, House Speaker John Boehner (R-Ohio) issued a statement February 23, saying “While Americans want Washington to focus on creating jobs and cutting spending, the President will have to explain why he thinks now is the appropriate time to stir up a controversial issue that sharply divides the nation.”

That’s a criticism of timing, not substance.

That evening, at an appearance at Harvard, House Majority Leader Eric Cantor (R-Va.) said Republicans were “a little taken aback” by the Obama DOJ decision, adding, “I’ve never been around when a president decided not to defend a law on the books.’’

(Cantor, born in 1963, was curiously uninformed. While it is not common for presidents to decide against defending certain laws in court, the last three Republican presidents did it, as did the previous two Democratic presidents, according to Jon Davidson, legal director for Lambda Legal Defense and Education Fund.)

But the Associated Press said the more conservative Republican affiliates were quite angry and pushing for a more hostile response. Tony Perkins of the Family Research Council said Republicans in Congress must respond or else they would “become complicit” in the decision.

“The president was kind of tossing this cultural grenade into the Republican camp,” Perkins told AP. “If they ignore this, it becomes an issue that will lead to some very troubling outcomes for Republicans.”

Fox News commentator Monica Crowley likened the DOJ announcement to the president attempting to become a dictator.

“You cannot pick and choose which law you’re going to enforce as president of the United States,” said Crowley, apparently having not read the Attorney General’s letter in which he stated clearly that the administration would continue to enforce the law. “If President Bush had done that, I think there would be calls for his impeachment.”

The conservative Washington Times editorialized on the day of the DOJ announcement that the action represents “the next step of President Obama’s strategy to force the radical homosexual agenda on America against the will of the people and Congress.”

By Sunday, Boehner seemed to be taking a harder line. He told the Christian Broadcast Network that Republican leaders were examining “a lot of options on the table,” including appointing counsel to defend DOMA. He said House leadership would be talking to House members “in the next few days” and would make a decision by the end of the week on what to do.

“And on these options,” asked CBN reporter David Brody, “the bottom line is that something is going to happen from the House and something will get done?”

“I’d be very surprised if the House didn’t decide that they were going to defend the law,” said Boehner.

As of Tuesday, the only new bill to be announced was a bill to repeal DOMA, introduced by U.S. Senator Dianne Feinstein (D-Calif.). But U.S. Rep. Steve King (R-Iowa) said, in an interview with ABC News, that he thought Congress should take out of the DOJ budget the funding given to DOJ to defend DOMA in court.

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