On Attorney General Holder's Letter Finding DOMA Unconstitutional

A letter from Attorney General Eric Holder, Jr. to House Speaker John A. Boehner released on February 23, 2011,  deals with the constitutionality of Section 3 of DOMA (the Defense of Marriage Act) stating that the President has determined that that section of the act is unconstitutional.  What follows is a legal analysis of that letter with some brief commentary.


Section 3 of DOMA states:

In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife.

This is the section of the statute that writes discrimination against gay and lesbian people into federal law.  Holder states that the President has made the determination that this Section 3 of DOMA “as applied to same-sex couples who are legally married under state law, violates the equal protection component of the Fifth Amendment.”  The provision of the Fifth Amendment to the US Constitution to which Holder applies states is actually a due process provision not an equal protection provision.  It states that no person shall be deprived of life, liberty, or property without due process of law.  Although the equal protection language found in the Fourteenth Amendment, i.e., no person shall be deprived of the equal protection of the law, that applies to the states but not expressly to the federal government is not found in the Fifth Amendment to which Holder refers, the courts have held that the equal protection analysis developed for application to the states under the Fourteenth Amendment also applies to the federal government under the Fifth Amendment.  Holder expressly addresses what actions the administration will take with regard to defending DOMA in two pending cases in the federal courts that challenge the constitutionality of DOMA.

Holder says that these two suits were filed “in jurisdictions without precedent on whether sexual-orientation classifications are subject to rational basis review or whether they must satisfy some form of heightened scrutiny.”  A little Constitutional Law 101 is necessary to understand that statement.  In law suits challenging the constitutionality of a law on equal protection grounds, the case is almost always decided by what “standard of review” the court decides applies to the case.  There are three basic standards of review, “rational basis”  "intermediate" or “heightened” scrutiny, and “strict scrutiny.”    Holder says he is using the heightened scrutiny test, although frankly his analysis sounds like a strict scrutiny test to me.

Laws make distinctions between persons all the time, and most of the time those distinctions are not unconstitutional.  When the distinction a law makes does not affect a fundamental right or affect a protected class or a “quasi-protected” class (see below), as for example when a law provides that certain persons are entitled to governmental benefits and others are not on the basis of income, the law is constitutional if the government can meet what is called the rational basis test.  Under this test the government must show only that it has a “rational basis” for making the distinction.  It certainly is a rational basis for saying that people with very low incomes are entitled to welfare benefits while those of us with higher incomes are not that the state has an interest in providing at least a minimum level of social security for all of its citizens and in assisting those who can provide that level of security for themselves.  The right to receive governmental benefits is not, generally speaking at least, a fundamental right, and the distinctions it makes between persons are not based on a protected or quasi-protected class of persons.  It is merely a distinction created by statute, not by the Constitution, nor does it otherwise affect anything that is truly fundamental in human life.  That’s why, for example, it is constitutional that my neighbor may qualify for food stamps while I do not even though that means that the food stamps law is treating us differently by giving them to my neighbor but not to me.  When a court decides that a distinction that a law makes between persons otherwise similarly situated does not affect a fundamental right or a protected or quasi-protected class and that the rational basis test therefore applies, the law is almost always found to be constitutional.  The rational basis test is a very easy test for the government to meet.

“Strict scrutiny,” the highest standard of review, applies when the distinction a law makes affects a “fundamental right.” or a "protected class".  The classic example is laws that make distinctions on the basis of race, as being free from racial discrimination is pretty obviously a fundamental right, and race is considered to be a protected class.  The “heightened scrutiny” test that Holder says he is applying here applies to what is called a “quasi-suspect class” such as gender.  Just why gender is a quasi-protected class and not a protected class has never been clear to me, but so the federal courts have ruled.  Under this test the court determines if the law involves important governmental interests and whether the law is substantially related to the achievement of important government objectives. Heightened scrutiny falls between the rational basis test and strict scrutiny, which requires that the distinction between persons relate to a compelling interest and that the law be as narrowly defined as possible to effect that interest.  Actually, several state courts have held that laws limiting marriage to heterosexual couples must satisfy the strict scrutiny test and that such laws to not even survive the rational basis test.  That’s what Judge Downing held in a brilliant trial court opinion here in Washington that our state supreme court later overturned with no reasonable justification, but here Holder applies, or at least says he is applying, the intermediate heightened scrutiny test.

Holder’s reference to the two suits in question being filed in jurisdictions without binding precedent on the standard of review to be applied to constitutional challenges to DOMA also requires explanation.  He is referring to different circuits of the United States Circuit Court of Appeals.  When the US Supreme Court has not ruled on an issue, as it has not in the case of which standard of review applies to DOMA, it is common for different Circuit Courts of Appeal to reach different conclusions on legal issues.  Since the Circuit Courts of Appeal are organized geographically, it is not uncommon for federal law actually to be different in different parts of the country.  If a United States District Court is located in a circuit where the appellate court has ruled that DOMA is subject only to the rational basis test, the Justice Department would probably defend DOMA under that standard because that standard was the law of that circuit.  Holder says that the Justice Department’s previous defense of DOMA has been in courts where it has already been established that the rational basis standard applies.  Since the two cases at issue here are in circuits where that ruling has not been made, the Administration has greater latitude in deciding what position it will take on the issue.

Holder concludes that, in circuits with no ruling on the issue, the Administration will take the position that constitutional challenges to DOMA on equal protection grounds are subject to the heightened scrutiny standard, the intermediate standard of review between rational basis and strict scrutiny.  Citing previous Supreme Court decisions on the matter he says that these criteria apply in determining which standard of review should apply:

1.   Whether the group in question has suffered a history of discrimination.
2.   Whether individuals exhibit obvious, immutable, or distinguishing characteristics that define them as a discrete group.
3.  Whether the group is a minority or is politically powerless.
4.   Whether the characteristics distinguishing the group have little relation to legitimate policy objectives or to an individual’s ability to perform or contribute to society.

Holder then states that “each of these factors counsels in favor of being suspicious of classification based on sexual orientation.”  There is, he says, “a significant history of purposeful discrimination against gay and lesbian people, by governmental as well as private entities, based on prejudice and stereotypes that continue to have ramifications today.”  He says that growing scientific consensus “accepts that sexual orientation is a characteristic that is immutable.”  He then adds that “it is undoubtedly unfair to require sexual orientation to be hidden from view to avoid discrimination,” citing the recent law to repeal Don’t Ask Don’t Tell.

Holder continues:  Various factors show that gay and lesbian people have limited political power.  The fact that legal progress is being made in this regard does not negate that analysis.  And, he concludes, “there is growing acknowledgment that sexual orientation ‘bears no relation to ability to perform or contribute to society,’” citing earlier Supreme Court precedent.

Holder acknowledges that some circuit courts of appeal have held that the rational basis standard applies to these cases.  He says that some of them rely on old Supreme Court precedent in sodomy cases that has been overruled.  Others have relied on reasoning about procreation that the Justice Department has already rejected in other contexts.  He concludes that those circuit court of appeal rulings are neither correct nor binding.

Holder then very briefly concludes that DOMA cannot survive a heightened scrutiny test, although he doesn’t go into that analysis in any depth.  He cites the standard and says that it applies in the DOMA cases.  In explaining that conclusion he says only that the law fails this test.  He suggests that the justifications advanced in defense of DOMA are "rationalizations for actions in fact differently grounded," meaning I imagine that the law is grounded not in any justifiable considerations but rather simply in prejudice.  He attributes that determination to the President and says that the President has directed the Justice Department not to defend the statute in the two cases at issue, which are pending in the Southern District of New York and the District of Connecticut, the federal trial courts where the suits were filed whose circuit court of appeal, the US Circuit Court of Appeals for the Second Circuit, has not ruled on which standard of review applies. 

So far so good, but then it gets a bit strange.  Holder next says that “Notwithstanding this determination, the President has informed me that Section 3 will continued to be enforced by the Executive Branch.”  He sees that directive as “consistent with the Executive’s obligation to take care that the laws be faithfully executed, unless and until Congress repeals Section 3 or the judicial branch renders a definitive verdict against the law’s constitutionality.”  So, in good wishy-washy Democratic fashion (not that I have an opinion about the Democrats today), Holder states two seemingly contradictory positions here.  Section 3 of DOMA is unconstitutional because it cannot survive a heightened scrutiny examination; but, except in law suits in circuits that have not held that the rational basis test applies where it will argue that the law is unconstitutional, the executive branch of government will continue to enforce it.


President Obama's decision, announced by his Attorney General, that DOMA is unconstitutional is a big step in the right direction.  The tide of history is clearly running against continued discrimination against God's gay and lesbian children.  We could only wish that the Obama Administration had the courage, which it seems to lack in so many areas, to take a consistent stand against the law.  Some commentators are saying that the Administration's commitment to continue to enforce DOMA despite the fact that it has concluded that the law is unconstitutional and that it will not defend it in at least some court cases is a good thing because we can't have presidents deciding which laws they will and will not enforce.  Generally speaking that is true.  George W. Bush refused to comply with laws that he thought limited his power, and he was violating his oath of office when he did so.  The situation with DOMA seems different to me.  There is a difference between a president refusing to obey a law for his own political or power purposes and a president refusing to enforce a law that he has concluded unconstitutionally discriminates against a large number of American citizens.  The President's oath is to protect and defend the Constitution.  Here two provisions of that Constitution are in conflict.  The Constitution makes it the president's duty to enforce the laws, but it also says that no person shall be denied the equal protection of the laws.  President Obama and his Justice Department have apparently decided that the constitutional duty to enforce the laws trumps the constitutional guarantee of equal protection for the country's people.  It seems to me that in a case like this, where fundamental rights are concerned, that the protections the US Constitution provides the people should take precedence.  As he always does, Obama has split the baby, trying to have it both ways.  A half measure here is better than no measure, but it is still a half measure; and I don't think that it is a necessary one.  My hope is that the decision announced today is just a first step and that it will, as some commentators are also saying, influence the way litigation on the issue of same gender marriage is resolved in both the federal and the state courts.

Strict Construction? Constitutional Construction and Post-Modern Hermeneutics

     We have just learned that a federal judge in Florida has ruled the entire Obama health care bill unconstitutional.  It was, the news media tell us, the fourth ruling on the constitutionality of that law by a federal judge.  That so-called reform of our nation’s health care delivery system is at best a modest tinkering at the edges of that system based on decades old proposals by, of all people, Richard Nixon and containing provisions similar to those Republican governor Mitt Romney signed into law in Massachusetts.  That being said, there is one fact about those four rulings on the constitutionality of that law that raises a larger issue than the constitutionality of the law.  Two federal judges have ruled all or part of the law unconstitutional.  Both were nominated by Republican presidents.  Two federal judges have ruled the law constitutional.  Both were nominated by Democratic presidents.  Commentators are saying that the fact that these decisions appear to break along political lines depending on which president nominated the judge in each case means that the decisions were political.  They may well have been political.  There is no way to get inside the minds of the judges who made the rulings to determine what the true reasons for their decisions were.  The fact that two Republican judicial nominees ruled the law unconstitutional and two Democratic judicial nominees ruled it constitutional, however, raises a much larger issue about the nature of judicial interpretation of the Constitution, one that is vitally important to any proper understanding of the way in which judicial decision making works.

That issue has to do with the oft-repeated calls from the political right for “strict construction” of the Constitution.  Political conservatives in our country have for decades condemned what they call “judicial activism” and demanded that judges engage only in what they call strict construction (except of course when a court does something they like, as the Supreme Court did in the Citizens United case on the right of corporations to pour unrestricted money into elections.  That is a case of judicial activism if ever there was one, but the conservatives don’t complain about that one).  By strict construction they seem to mean interpretation of the Constitution that sticks solely to the literal meaning of the words in the document.  There are valid objections to this demand for strict construction on multiple levels.  On the purely legal level there is the objection that a Constitution is by its very nature a document that states general principles.  The law, however, deals with the everyday details of life, the complex particulars of life in a complex society.  The Constitution cannot and by its nature should not operate at the level of those particulars.  It is precisely the function of the courts to determine how the general principles stated in the Constitution apply to the minute particulars of everyday life.  In light of this consideration the term “strict construction” actually makes no sense and badly misunderstands the nature and function of any constitution.

There is, however, an even more fundamental objection to the notion of strict construction of the Constitution.  Although I used to be a lawyer and have extensive legal training and experience, this objection to the notion of strict construction comes not from anything I learned in law school or the practice of law but from learning I received in seminary.  It is learning about hermeneutics.  Hermeneutics is the theory and practice of interpretation.  It is a required course in seminary, or at least it was required in mine, because interpretation of religious texts, especially of course of the Bible, is an essential part of the life of faith.  Anyone who is going to preach and teach in a faith setting must necessarily interpret scripture, and the undeniable fact is that interpretation is a complex activity that  requires study to understand.  There are principles of hermeneutics that one must understand if one is going to do or to understand meaningful interpretation of scripture or any other document.

Of particular importance, there are principles of hermeneutics that have been developed in the emerging post-modern world that may not be entirely intuitive to people whose thinking has been shaped by Enlightenment rationalism but that, once understood, are undeniable.  Perhaps the foundational principle of postmodern hermeneutics is that meaning never resides in a text alone.  In and of itself a text is simply a collection of words.  It is simply a collection of marks on paper—or today on a computer screen, iPad, or smart phone.  In itself any text is dead.  Lifeless.  Inert.  Meaningless.  No text speaks for itself.  By itself it doesn’t speak at all.  It just sits there.  In a real sense the text doesn’t even exist except when someone is reading it.

A text, any text, speaks only when it encounters a reader.  A reader brings life to a text.  A reader brings a text alive.  It is in the encounter between a reader and a text, and only in the encounter between a reader and a text, that meaning arises.  It cannot be otherwise.  Meaning is a creation of the human mind.  Nothing has meaning in and of itself.  Anything has meaning only when a human mind gives it meaning.  A thing, anything, has only the meaning that a human mind gives it.  Humans are meaning making creatures, as many contemporary observers have remarked.  Until a text is encountered by a meaning making creature it has no meaning.  Until a text is encountered by a meaning making creature, that is, by a human being, it can have no meaning.  This may be a difficult concept for people thoroughly steeped in the fact oriented rationalism of Western culture, but at its highest and most knowledgeable levels our culture has moved beyond that fact oriented rationalism.  Meaning does indeed arise only within the human mind, and that means that no text has meaning in itself.  It has meaning only in an encounter with a human mind that creates meaning in that encounter.

This principle of postmodern hermeneutics has several vitally important consequences.  One that is of particular importance is that the meaning of any text depends on who the person is who encounters it and creates meaning in it.  Each person is unique, although of course people in similar socio-economic-cultural circumstances have much in common, and we all share a common underlying humanity.  Each reader comes to a text, any text, in her or his uniqueness as an individual and with his or her commonalities with others based on common humanity and on shared life circumstances.  It cannot be otherwise.  We are created as centered selves, as individuals.  We are however also individuals who live in society, in community, in particular cultures, in particular socio-economic circumstances.  When we come to a text, any text, we bring all of that with us..  The encounter of any reader with any text is precisely an encounter between a text and the reader in all of her individuality and commonality.

A necessary consequence of the fact that the encounter of any reader with a text is precisely an encounter between a text and the reader in all of her individuality and commonality is that the meaning that arises in that encounter will, or at least may, differ depending on who the reader is.  Let me illustrate with an example from the sphere of Christianity.  When poor and oppressed people in South America began, on their own, to encounter the Christian Scriptures they gave rise to a whole new kind of Christian theology.  They created liberation theology.  They were reading the same texts the privileged elites of their country and their former European masters had been reading for centuries, but they found new meaning in those texts.  They had been told those texts were about how they could get to heaven after death.  When they read the texts themselves from their Sitz im Leben, from their place in life, they heard those same texts bringing a message of liberation here and now, in this life.  The same texts with different readers produced different meaning.

Another consequence of the principle that meaning does not reside in a text itself but arises in the encounter between the text and a particular reader is that the meaning in the text is not limited to the meaning intended by the text’s author.  We can presume that the author of any text intends to convey a certain meaning through his text.  There is some particular thing that the author intends to say.  An author’s intent, and the way she tries to express that intent, are conditioned by the cultural-linguistic world in which the author lives.  Every author is every bit as much a particular individual conditioned by a particular socio-economic-cultural context as is every reader.  One issue that arises in discerning the meaning of any text is that the reader may be conditioned by a very different socio-economic-cultural context than was the author.  That circumstance can make it difficult for readers approaching a text centuries after the text was written to determine what the original author’s intent was.  More importantly, because meaning does not reside in a text but arises in the encounter between a text and a particular reader, the author of any text loses control of the meaning of the text as soon as a reader other than the author reads the text.  Knowing the author’s intent in writing a text, if that intent can be determined, is not entirely irrelevant to another reader finding meaning in the text, but it is not determinative.  It is not determinative precisely because meaning arises in the interaction between the text and the reader. 

Those of us who have been trained in mainline seminaries are familiar with these principles and how they apply to the interpretation of the Bible.  It is, in my experience at least, far less common for lawyers or politicians to understand these principles and how they apply to the interpretation of the United States Constitution.  The demand by conservative politicians that the Constitution be strictly construed to reflect the original intent of the “framers,” the Constitution’s original authors, goes largely unchallenged at the most fundamental level.  Commentators rarely if ever say that the framers’ original intention is not and cannot be the determinative factor in Constitutional construction because in itself the text of the Constitution, like any other text, has no meaning.  The text has meaning only in its encounter with a reader.  That is the only place where meaning can possibly arise because, as we have already noted, meaning is something that the human mind creates, not something that exists as an objective reality apart from the reader.

What happens when we apply these principles to the four federal court opinions on the constitutionality of the current reform of our health care delivery system?  When we do that we conclude that the mere fact that the two judges who upheld the law were Democratic nominees and the two who found all or part of it unconstitutional were Republican nominees does not necessarily mean that those decisions are political.  They certainly have political consequences, and some politicians will like the political consequences of the decisions in favor of the constitutionality of the law and some will like the political consequences of the decisions against the constitutionality of the law.  But these decisions were made by four different federal judges, four specific human beings who came to the text of the law and the text of the Constitution with their own individuality and their own socio-economic-cultural Sitz im Leben.  It may therefore be that their different decisions were not intentionally political but that they arose merely from the fact that we are dealing with four federal judges and not with one.  The explanation that these decisions are political is, I believe, superficial and does not reflect an adequate understanding of postmodern hermeneutics.

This is not to say that there is not sound legal reasoning in some judicial decisions and unsound legal reasoning in others.  There are established rules of constitutional and statutory interpretation.  One can read a legal precedent in a way that is true to the precedent or in a way that makes the precedent say something it doesn’t say.  An interpretation can stray from the text so far that the text is no longer recognizable as the text.  At that point we no longer have a legitimate interpretation of the text but a misuse of the text.  Postmodern hermeneutical principles do not mean that a text can legitimately be made to say anything the reader wants it to say.  Judges may legitimately not make a text say something it simply doesn’t say, ignore the facts in the record of the case, or make up new facts to support a desired outcome.  There are good judges and bad judges, insightful judges and dull ones.  Postmodern hermeneutics have significant consequences for understanding judicial interpretation, but they do not excuse bad judging.

We conclude then that we cannot say that the four decisions on the constitutionality of the health care reform were political.  They may have been, but simply calling them political is a superficial analysis at best.  There is a broader lesson here.  That lesson is that the calls for “strict construction” of the Constitution cannot survive any deep analysis of the nature of constitutional construction.  Yes, the framers may have intended a certain meaning; but they lost control of the meaning of their document as soon as someone else read it.  Their cultural-linguistic world was very different from ours.  The socio-economic-cultural context of the framers was very different from that of most Americans today.  It is perfectly legitimate for us to find a different meaning in the Constitution than the framers intended.  Indeed, it is virtually inevitable that we will find a different meaning in the Constitution than the framers intended.  That’s how it is with documents, any documents.  

So let’s be done with calls for strict construction.  Those calls are essentially meaningless.  Let us honestly admit that the role of judges interpreting the Constitution is not to figure out what some land-owning (and many of them slave-owning) white men meant well over two hundred years ago.  Let us honestly admit that the judge’s task today it to discern what the Constitution means in our context, not what it meant in theirs. 

We will still disagree on how to interpret the Constitution in particular cases.  That disagreement is unavoidable.  If it weren’t, constitutional construction wouldn't be an issue in our courts.  That’s why it is so important to have a legal system that can produce closure in a constitutional argument by issuing a decision that even those who disagree with it will recognize as legitimate.  What is not legitimate, indeed what is not possible, is to lock the Constitution into its late eighteenth century meaning.  Documents that cannot speak to people in different times and different contexts quickly become irrelevant.  They die and continue to be of interest only to historians.  Postmodern hermeneutics tell us that strict construction of the Constitution is not so much undesirable as it is impossible.  So let’s argue the constitutionality of our laws on a solid theoretical basis, not on the basis of the chimera of strict construction.