Reply #18: Obama Administration Attempts to Weaken Constitutional Protections for LGBT Americans [View All]

Two articles about the new DOMA repackaging:

Obama Administration Attempts to Weaken Constitutional Protections for LGBT Americans

Emma Ruby-Sachs.Lawyer
Posted: August 17, 2009 07:44 PM

Yesterday, the Obama administration filed a follow-up brief in the Smelt case -- the couple in California challenging DOMA who were the recipients of an imprudently written reply brief back in June. This time, it looks like some liberals in the Justice Department got their hands on a copy of the brief before filing. There are some nice words in there aimed at smoothing hurt feelings.

But the brief also argues for a new and dangerous interpretation of the rational basis test.

The rational basis test is applied by the court to laws that violate the equal protection clause, but do not implicate certain protected groups. In other words, if the law does not discriminate on the basis of race or gender, it will likely be upheld if the government can find any rational reason why the law exists. These reasons can be invented on the spot and are usually not tested very vigorously.

However, even this low standard of constitutional review has limits and one very important limit is that the government cannot argue that a law discriminates for the sole purpose of "administrative convenience."

This limit on rational basis is essential. Otherwise, all offensive and discriminatory laws would be maintained indefinitely because change is, frankly, hard and often expensive. As Chief Justice Burger said in his majority opinion in Reed v. Reed 404 U.S. 71 (1971) (a case where rational basis review was applied to a law discriminating against women):

To give a mandatory preference to members of either sex over members of the other, merely to accomplish the elimination of hearings on the merits, is to make the very kind of arbitrary legislative choice forbidden by the Equal Protection Clause of the Fourteenth Amendment.

This is a pretty important precedent, but Obama's Justice Department is interested in changing the way constitutional review works. They write in their brief:

Courts have held that challenges to DOMA are subject to rational basis review. Under that deferential standard of review, this Court should find that Congress could reasonably have concluded that there is a legitimate government interest in maintaining the status quo regarding the distribution of federal benefits in the face of serious and fluid policy differences in and among the states. ...Under rational basis review, Congress can reasonably take the view that it wishes to wait to see how these issues are resolved at the state level before extending federal benefits to marriages that were not recognized in any state when Congress tied eligibility for those benefits to marital status.

Effectively, Obama is saying that, given the vast disagreements between states about whether institutionalized homophobia is okay, it would just be too inconvenient for the Federal government to weigh in. Better to wait and see and once there is consensus, the government will have an easier time legislating all this marriage business.

http://www.huffingtonpost.com/emma-rubysachs/obama-administration-atte_b_261624.html

Published on Tuesday, August 18, 2009 by The San Francisco Chronicle

US Walks Fine Line on Anti-Gay-Marriage Law
by Bob Egelko

SANTA ANA -- The Obama administration tried Monday to defuse anger among gays and lesbians over its defense of a law denying federal benefits to same-sex married couples, criticizing the Defense of Marriage Act as it asked a judge to dismiss an Orange County couple's legal challenge without ruling on the law's constitutionality.

The administration "does not support (the law) as a matter of policy, believes that it is discriminatory and supports its repeal," Justice Department lawyers said in written arguments in U.S. District Court in Santa Ana.

They said the administration would defend any federal law if there are "reasonable arguments" to uphold it. But this case "can and should be decided on much narrower grounds," the department lawyers argued - the plaintiffs' failure to show that the law has harmed them.

The couple have not sought any of the benefits the law withholds from same-sex couples. Another suit is pending in Massachusetts by couples who applied unsuccessfully for federal marriage benefits.

The law, signed by President Bill Clinton in 1996, denies joint tax filing, Social Security survivors' payments and other federal benefits to same-sex couples. It also allows states to withhold recognition of same-sex marriages performed elsewhere.

The Orange County couple, Arthur Smelt and Christopher Hammer of Mission Viejo, wed last year before California voters outlawed same-sex marriage by passing Proposition 8 in November.

Smelt and Hammer, one of 18,000 couples whose pre-Prop. 8 marriages were upheld by the state Supreme Court, contend the federal law violates their constitutional right of equal treatment. A judge has scheduled a hearing Monday on the government's request to dismiss the case.

http://www.commondreams.org/headline/2009/08/18-3