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.