DOJ on DOMA
Last week, the Obama administration DOJ filed a brief defending the Defense of Marriage Act against a federal lawsuit by a same-sex couple married in CA. The brief caused a great deal of consternation in the liberal blogosphere. That led to me spending part of another train ride working my way through a legal document (that was a week ago, but I just found the time to write it up).
I'm not going to argue about whether filing the brief at all was a good idea, I accept that the DOJ is required to defend the US government when the US government is sued. But that's not to say that I don't have criticism for the content of some of the arguments.
(I have been informed that my last law-related post was rather jargon-y, so if there's something that you don't understand term-wise, please comment and I will try to explain. This one will hopefully be a little more straightforward, since the document in question isn't nearly as long.)
The case in question, Smelt and Hammer v. CA, US, and Does 1-1000 represents yet another attempt by the plaintiffs in question to challenge DOMA. The previous case, Smelt v. County of Orange, was rejected in federal court and rejected again on appeal, the case was dismissed due to lack of standing (since the defendants weren't married, they had no argument that DOMA had harmed them). After getting married under CA law, they decided to try again. They filed suit in federal court, asking for fees to be waived, and the request to get fees waived was denied, they filed the same suit in state court, adding CA as a defendant. The state court approved a wavier of fees. The DOJ filed a notice of removal to have the case moved back to federal court, then filed a brief in their defense. The brief argues as follows (quotes are from the brief unless otherwise noted):
1. The court doesn't have jurisdiction
In a state court case, the defendant can request that the case be removed to the relevant federal district court if the federal court also has jurisdiction. But even after a removal, defendants can still try to get the case dismissed based on the fact that the state court didn't have jurisdiction:
Thus, "if the state court from which [a case] was removed lacked subject matter jurisdiction," then the federal court will also lack jurisdiction, "even though the federal court would have had jurisdiction had the suit been brought there originally." See FBI v. Superior Court of Cal. [2007]
Generally, the US cannot be sued in a state court, so this suit should be dismissed on those grounds, even though it was removed to a federal court.
This is the bit of the argument I found most confusing (mainly because I'm not familiar with the legal technicalities involved), but it seems solid. Going to a different court to avoid costs is only a good idea if the court in question actually has the necessary jurisdiction.
2. Plaintiffs don't have standing
Since the plaintiffs hadn't been denied (or even applied for) federal or state-other-than-CA benefits on account of being married, nor had they been denied freedoms while moving to another state / traveling between states (since they hadn't done so), they don't have any harm to sue about. This one is also pretty straightforward, they're still jumping the legal gun.
3. DOMA doesn't violate the full faith and credit clause
Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof. (US Constitution, Article 4, Section 1)
The principle of "Full Faith and Credit" has never been construed to require the States literally to give effect, in all circumstances, to the statutes or judgments of other States. Indeed, "[a] rigid and literal enforcement of the full faith and credit clause, without regard to the statute of the forum, would lead to the absurd result that, wherever the conflict arises, the statute of each state must be enforced in the courts of the other, but cannot be in its own." ... as the Court has repeatedly acknowledged, longstanding principles of conflicts of law do "not require a State to apply another State's law in violation of its own legitimate public policy." See, e.g., Nevada v. Hall [...] (1979); see also Williams v. North Carolina ... (1942)
The brief argues that DOMA is consistent with Congress's powers under the second sentence of the above, that specifying the effect of one state's laws in another state can include saying that agreements (or certain subsets of agreements) in one state have no effect in another state.
In fact, other states have restricted marriages performed elsewhere on policy grounds. Which policy grounds was the cause of much of the rage in the blogosphere, but I don't think that's really the right bit to be offended by, plus it sounds like a "but we're not like those guys who are the real perverts" argument, which strikes me as mistargeted.
4. DOMA doesn't violate equal protection
Like all federal statutes, DOMA is entitled to a presumption of constitutionality. Because DOMA does not restrict any rights that have been recognized as fundamental or rely on any suspect classifications, it need not be reviewed with heightened scrutiny. Properly understood, the right at issue in this case is not a right to marry. [...] Instead, a legislative policy must be upheld so long as there is any reasonably conceivable set of facts that could provide a rational basis for it, including ones that the Congress itself did not advance or consider.
This is where things start getting incoherent, so it's worth breaking the above down:
DOMA does not restrict any rights that have been recognized as fundamental...
This is simply wrong, as the brief almost immediately goes on to say:
While the Supreme Court has held that the right to marry is "fundamental" Zablocki v. Redhail [...] (1978)...
But note the dependent clause. How are they going to argue themselves out of this one?
... that right has not been held to encompass the right to marry someone of the same sex. To the contrary, in Baker v. Nelson, the Supreme Court dismissed a claim that the Constitution provides a right to same-sex marriage for lack of a "substantial federal question."
Hey, an argument based on Baker! I'm pretty sure I read something by bradhicks recently that called that (might not have been a recent post, though). The problem with Baker, though, is that it's obviously wrong. So it will be interesting to see if the lower courts do the technically correct thing and dismiss every same-sex marriage case until the Supreme Court decides purely of their own accord to take the issue up again, or whether any federal court will be willing to ignore Baker on the aforementioned "obviously wrong" grounds. This isn't quite the same case as Baker, which is why it ends up here instead of in the "you should dismiss the case" arguments above, but that's technically fine, since "no substantial constitutional question" is a "finding on the merits".
... or rely on any suspect classifications...
As far as I can tell, the brief is relying on Smelt v. County of Orange (earlier suit filed by same plaintiffs in federal district court) in making the determination that sexual orientation is not a suspect classification. I think that sexual orientation should be a suspect classification under US law. But the problem with that argument in the brief isn't that it's technically wrong, it's that it leads to some truly boneheaded and misdirected arguments below:
DOMA does not discriminate against homosexuals in the provision of federal benefits. To the contrary, discrimination on the basis of sexual orientation is prohibited in federal employment and in a wide array of federal benefits programs by law, regulation, and Executive order. [...] Within the context of such programs, Section 3 of DOMA does not distinguish among persons of different sexual orientations, but rather it limits federal benefits to those who have entered into the traditional form of marriage.
Oh, cool, so DOMA doesn't discriminate based on whether you're gay, it discriminates based on whether you're married and says if you're gay you can't be married.* That argument has already been rejected by the federal government, though, so here's yet another instance of the brief citing an argument that contradicts its previous argument:
Loving v. Virginia is not to the contrary. There the Supreme Court rejected a contention that the assertedly "equal application" of a statute prohibiting interracial marriage immunized the statute from strict scrutiny. [...] The Court had little difficulty concluding that the statute, which applied only to "interracial marriages involving white persons," was "designed to maintain White Supremacy" and therefore unconstitutional. [...] No comparable purpose is present here, however, for DOMA does not seek in any way to advance the "supremacy" of men over women, or of women over men. Thus DOMA cannot be "traced to a ... purpose" to discriminate against either men or women.
Well, no shit, the purpose of DOMA is to discriminate against homosexuals. I've argued before that marriage rights can be argued for on the basis of sex discrimination (if changing the sex of someone in a courtroom changes the decision, it's sex discrimination, period). But the above bit about "men over women" or vice versa shows a weakness in that argument.
But hey, the brief already decided that discrimination against homosexuals is okay, it just needs a "rational basis" (a conceivable rational basis, even, the actual basis for the law can be bigoted). So what's the rational basis for DOMA? Fortunately, someone predicting this argument when DOMA was still in its larval "bill" phase wrote it up in USCCAN. They cite four reasons:
A. "Procreation and child rearing"
B. "Traditional notions of morality"
C. Protecting state soverignty
D. Preserving scarce resources
Regarding A, gays do that. Some even have kids the old-fashioned biological way (some via previous relationships with people of the opposite sex, even), but method shouldn't matter, states wouldn't consider denying marriage to (heterosexual) couples who are infertile or plan to never have children or plan to adopt or acquire gametes from an alternate source.
B is the favorite defense of bigots everywhere, discredited time and again under "strict scrutiny". Does it pass "rational basis"? I'm not sure what the precedents in this area are.
C is really interesting, I'll get back to that in a moment, see my argument below.
D probably passes "rational basis" and fails "strict scrutiny" (although I'm not sure), one of the reasons why that "suspect classification" argument is important.
Here's the most interesting and important bit, I'm leaving this outside of the cut because if there's one bit you read, it should be this one:
The brief argues that DOMA is just an exercise of caution on Congress's part, allowing states to experiment with novel forms of marriage without messing things up for other states or the federal government.
Consistent with our federalist system, which allows each State to "serve as a laboratory[,] and try novel social and economic experiments without risk to the rest of the country," [citation], DOMA does not address whether a same-sex couple may marry within the United States... At the same time, it cautiously declined to extend federal benefits on the basis of a newer definition of marriage that no States had adopted at the time of DOMA's passage (and only a very small minority of States have since). Thus, by defining "marriage" and "spouse" as the legal union of a man and a woman and affording federal benefits on that basis, Section 3 of DOMA simply maintained the status quo: it continues the longstanding federal policy of affording federal benefits and privileges on the basis of a centuries-old form of marriage, without committing the federal government to devote scarce resources to newer versions of the institution that any State may choose to recognize.
This is the brief's critical misstep. Same-sex marriage is not like some novel contract or financial instrument or corporate structure. "Same-sex marriage" is marriage. It's not a novel structure at all!
In fact, that's the whole point! States have experimented with novel legal structure in the same general domain as marriage, and the various cases that ruled such structures were insufficient in providing equal rights (including CA's In re Marriage Cases) did so precisely because they were not the same as marriage. CA, MA, et. al. did not "gay marry" these people, it married them. And you know what really doesn't respect "state sovereignty"? Picking through the group of people married by a state and saying "these ones count, these ones don't"!
* Technically, it only limits who you can marry, but if you still think that "gay people can marry people of the opposite sex" is a compelling argument, equal-rights-wise, I suggest you hurl yourself out of the nearest window and hope you land in a pile of common sense.
I'm not going to argue about whether filing the brief at all was a good idea, I accept that the DOJ is required to defend the US government when the US government is sued. But that's not to say that I don't have criticism for the content of some of the arguments.
(I have been informed that my last law-related post was rather jargon-y, so if there's something that you don't understand term-wise, please comment and I will try to explain. This one will hopefully be a little more straightforward, since the document in question isn't nearly as long.)
The case in question, Smelt and Hammer v. CA, US, and Does 1-1000 represents yet another attempt by the plaintiffs in question to challenge DOMA. The previous case, Smelt v. County of Orange, was rejected in federal court and rejected again on appeal, the case was dismissed due to lack of standing (since the defendants weren't married, they had no argument that DOMA had harmed them). After getting married under CA law, they decided to try again. They filed suit in federal court, asking for fees to be waived, and the request to get fees waived was denied, they filed the same suit in state court, adding CA as a defendant. The state court approved a wavier of fees. The DOJ filed a notice of removal to have the case moved back to federal court, then filed a brief in their defense. The brief argues as follows (quotes are from the brief unless otherwise noted):
1. The court doesn't have jurisdiction
In a state court case, the defendant can request that the case be removed to the relevant federal district court if the federal court also has jurisdiction. But even after a removal, defendants can still try to get the case dismissed based on the fact that the state court didn't have jurisdiction:
Thus, "if the state court from which [a case] was removed lacked subject matter jurisdiction," then the federal court will also lack jurisdiction, "even though the federal court would have had jurisdiction had the suit been brought there originally." See FBI v. Superior Court of Cal. [2007]
Generally, the US cannot be sued in a state court, so this suit should be dismissed on those grounds, even though it was removed to a federal court.
This is the bit of the argument I found most confusing (mainly because I'm not familiar with the legal technicalities involved), but it seems solid. Going to a different court to avoid costs is only a good idea if the court in question actually has the necessary jurisdiction.
2. Plaintiffs don't have standing
Since the plaintiffs hadn't been denied (or even applied for) federal or state-other-than-CA benefits on account of being married, nor had they been denied freedoms while moving to another state / traveling between states (since they hadn't done so), they don't have any harm to sue about. This one is also pretty straightforward, they're still jumping the legal gun.
3. DOMA doesn't violate the full faith and credit clause
Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof. (US Constitution, Article 4, Section 1)
The principle of "Full Faith and Credit" has never been construed to require the States literally to give effect, in all circumstances, to the statutes or judgments of other States. Indeed, "[a] rigid and literal enforcement of the full faith and credit clause, without regard to the statute of the forum, would lead to the absurd result that, wherever the conflict arises, the statute of each state must be enforced in the courts of the other, but cannot be in its own." ... as the Court has repeatedly acknowledged, longstanding principles of conflicts of law do "not require a State to apply another State's law in violation of its own legitimate public policy." See, e.g., Nevada v. Hall [...] (1979); see also Williams v. North Carolina ... (1942)
The brief argues that DOMA is consistent with Congress's powers under the second sentence of the above, that specifying the effect of one state's laws in another state can include saying that agreements (or certain subsets of agreements) in one state have no effect in another state.
In fact, other states have restricted marriages performed elsewhere on policy grounds. Which policy grounds was the cause of much of the rage in the blogosphere, but I don't think that's really the right bit to be offended by, plus it sounds like a "but we're not like those guys who are the real perverts" argument, which strikes me as mistargeted.
4. DOMA doesn't violate equal protection
Like all federal statutes, DOMA is entitled to a presumption of constitutionality. Because DOMA does not restrict any rights that have been recognized as fundamental or rely on any suspect classifications, it need not be reviewed with heightened scrutiny. Properly understood, the right at issue in this case is not a right to marry. [...] Instead, a legislative policy must be upheld so long as there is any reasonably conceivable set of facts that could provide a rational basis for it, including ones that the Congress itself did not advance or consider.
This is where things start getting incoherent, so it's worth breaking the above down:
DOMA does not restrict any rights that have been recognized as fundamental...
This is simply wrong, as the brief almost immediately goes on to say:
While the Supreme Court has held that the right to marry is "fundamental" Zablocki v. Redhail [...] (1978)...
But note the dependent clause. How are they going to argue themselves out of this one?
... that right has not been held to encompass the right to marry someone of the same sex. To the contrary, in Baker v. Nelson, the Supreme Court dismissed a claim that the Constitution provides a right to same-sex marriage for lack of a "substantial federal question."
Hey, an argument based on Baker! I'm pretty sure I read something by bradhicks recently that called that (might not have been a recent post, though). The problem with Baker, though, is that it's obviously wrong. So it will be interesting to see if the lower courts do the technically correct thing and dismiss every same-sex marriage case until the Supreme Court decides purely of their own accord to take the issue up again, or whether any federal court will be willing to ignore Baker on the aforementioned "obviously wrong" grounds. This isn't quite the same case as Baker, which is why it ends up here instead of in the "you should dismiss the case" arguments above, but that's technically fine, since "no substantial constitutional question" is a "finding on the merits".
... or rely on any suspect classifications...
As far as I can tell, the brief is relying on Smelt v. County of Orange (earlier suit filed by same plaintiffs in federal district court) in making the determination that sexual orientation is not a suspect classification. I think that sexual orientation should be a suspect classification under US law. But the problem with that argument in the brief isn't that it's technically wrong, it's that it leads to some truly boneheaded and misdirected arguments below:
DOMA does not discriminate against homosexuals in the provision of federal benefits. To the contrary, discrimination on the basis of sexual orientation is prohibited in federal employment and in a wide array of federal benefits programs by law, regulation, and Executive order. [...] Within the context of such programs, Section 3 of DOMA does not distinguish among persons of different sexual orientations, but rather it limits federal benefits to those who have entered into the traditional form of marriage.
Oh, cool, so DOMA doesn't discriminate based on whether you're gay, it discriminates based on whether you're married and says if you're gay you can't be married.* That argument has already been rejected by the federal government, though, so here's yet another instance of the brief citing an argument that contradicts its previous argument:
Loving v. Virginia is not to the contrary. There the Supreme Court rejected a contention that the assertedly "equal application" of a statute prohibiting interracial marriage immunized the statute from strict scrutiny. [...] The Court had little difficulty concluding that the statute, which applied only to "interracial marriages involving white persons," was "designed to maintain White Supremacy" and therefore unconstitutional. [...] No comparable purpose is present here, however, for DOMA does not seek in any way to advance the "supremacy" of men over women, or of women over men. Thus DOMA cannot be "traced to a ... purpose" to discriminate against either men or women.
Well, no shit, the purpose of DOMA is to discriminate against homosexuals. I've argued before that marriage rights can be argued for on the basis of sex discrimination (if changing the sex of someone in a courtroom changes the decision, it's sex discrimination, period). But the above bit about "men over women" or vice versa shows a weakness in that argument.
But hey, the brief already decided that discrimination against homosexuals is okay, it just needs a "rational basis" (a conceivable rational basis, even, the actual basis for the law can be bigoted). So what's the rational basis for DOMA? Fortunately, someone predicting this argument when DOMA was still in its larval "bill" phase wrote it up in USCCAN. They cite four reasons:
A. "Procreation and child rearing"
B. "Traditional notions of morality"
C. Protecting state soverignty
D. Preserving scarce resources
Regarding A, gays do that. Some even have kids the old-fashioned biological way (some via previous relationships with people of the opposite sex, even), but method shouldn't matter, states wouldn't consider denying marriage to (heterosexual) couples who are infertile or plan to never have children or plan to adopt or acquire gametes from an alternate source.
B is the favorite defense of bigots everywhere, discredited time and again under "strict scrutiny". Does it pass "rational basis"? I'm not sure what the precedents in this area are.
C is really interesting, I'll get back to that in a moment, see my argument below.
D probably passes "rational basis" and fails "strict scrutiny" (although I'm not sure), one of the reasons why that "suspect classification" argument is important.
Here's the most interesting and important bit, I'm leaving this outside of the cut because if there's one bit you read, it should be this one:
The brief argues that DOMA is just an exercise of caution on Congress's part, allowing states to experiment with novel forms of marriage without messing things up for other states or the federal government.
Consistent with our federalist system, which allows each State to "serve as a laboratory[,] and try novel social and economic experiments without risk to the rest of the country," [citation], DOMA does not address whether a same-sex couple may marry within the United States... At the same time, it cautiously declined to extend federal benefits on the basis of a newer definition of marriage that no States had adopted at the time of DOMA's passage (and only a very small minority of States have since). Thus, by defining "marriage" and "spouse" as the legal union of a man and a woman and affording federal benefits on that basis, Section 3 of DOMA simply maintained the status quo: it continues the longstanding federal policy of affording federal benefits and privileges on the basis of a centuries-old form of marriage, without committing the federal government to devote scarce resources to newer versions of the institution that any State may choose to recognize.
This is the brief's critical misstep. Same-sex marriage is not like some novel contract or financial instrument or corporate structure. "Same-sex marriage" is marriage. It's not a novel structure at all!
In fact, that's the whole point! States have experimented with novel legal structure in the same general domain as marriage, and the various cases that ruled such structures were insufficient in providing equal rights (including CA's In re Marriage Cases) did so precisely because they were not the same as marriage. CA, MA, et. al. did not "gay marry" these people, it married them. And you know what really doesn't respect "state sovereignty"? Picking through the group of people married by a state and saying "these ones count, these ones don't"!
* Technically, it only limits who you can marry, but if you still think that "gay people can marry people of the opposite sex" is a compelling argument, equal-rights-wise, I suggest you hurl yourself out of the nearest window and hope you land in a pile of common sense.