NYT Editorial On Defending the Defense of Marriage Act

Today is Valentine's Day, and the New York Times took the opportunity to take the Obama Administration to task for its defense in court of the indefensible "so-called" Defense of Marriage Act (commonly known by its acronym DOMA):

Two new lawsuits, filed in Connecticut and New York, challenging the Defense of Marriage Act now offer the president a chance to put the government on the side of justice. We urge him to seize it when the administration files its response, which is due by March 11. The executive branch’s duty to defend federal laws is not inviolate. This one’s affront to equal protection is egregious.

As in the Massachusetts cases, there are two crucial questions here. The overarching one, of course, is whether it is constitutional for the federal government to deny benefits to some people who are legally married under their state’s laws. Much also depends on the standard of review. How should courts evaluate claims that a law discriminates against gay people?

On the merits, this should be an easy call. A law focusing on a group that has been subjected to unfair discrimination, as gay people have been, is supposed to get a hard test. It is presumed invalid unless the government proves that the officials’ purpose in adopting the law advances a real and compelling interest. That sort of heightened scrutiny would challenge the administration’s weak argument for upholding the act. It would also make it more difficult to sustain other forms of anti-gay discrimination, including state laws that deny same-sex couples the right to marry.

By now, such blatant discrimination should be presumed to be unconstitutional, and the Justice Department should finally say so. If conservatives in Congress want to enter the case to argue otherwise, so be it.

The editorial is referring to the cases Gill v. Office of Personnel Management and Massachusetts v. Department of Health and Human Services. These lawsuits are claiming that the United States is discriminating against legally married couples in Massachusetts by denying these couples access to a whole host of federal benefits due the Section 3 of the DOMA. The first lawsuit was filed by GLAD (Gay and Lesbian Advocates and Defenders); they have (essentially) won every marriage case they have filed, in Vermont, Massachusetts, and Connecticut. The State of Massachusetts filed suit separately on behalf of the same-sex couples who have been able to get legally married there since May 17, 2004. Both cases are now pending before the 1st U.S. Circuit Court of Appeals after the Justice Department decided to appeal a great opinion by U.S. District Court Judge Joseph Tauro,  with "the good guys" winning at the trial court level.

The Obama Administration has great leeway in how they handle the case. I support their decision to appeal the case(s) but I agree with the Times editorial that in addition to whether the justice Department appeals is how they appeal the case. The decision to appeal has already been made, anyway. The question is whether the Justice Department should continue asserting that it believes DOMA is constitutional, when the President has said that he wants it repealed. The main argument is that it is the Justice Department's job to defend statutes passed by Congress and it's not really a defense if you tell the court "I agree with my opponent that their legal argument is correct!"

However, the legal terrain on which the defense of the Defense of Marriage Act is crucially important for numerous pending lawsuits in federal court. There the question is whether the burden of proof will be on the Government to give a compelling reason for why they are discriminating against a class of people and burdening their exercise of a fundamental right (to marry) OR whether the Government can come up with any rational reason for the existence of the statute and Massachusetts and the same-sex legally married couples have to claim the government's rationales are not even rational. In legalese, it is whether "heightened scrutiny" should be given to the statute. I would argue that it should be, and the New York Times editorial page is beseeching the Obama administration to take this position as well.