GLAD Files For Summary Judgment In DOMA Case

GLAD Files Motion for Summary Judgment in 2nd Circuit DOMA Challenge, Pedersen v. Office of Personnel Management

Plaintiffs Ask Court for Heightened Scrutiny

Gay & Lesbian Advocates & Defenders (GLAD) filed a motion for summary judgment in Pedersen v. Office of Personnel Management, its 2^nd Circuit challenge to the federal so-called Defense of Marriage Act (DOMA).

GLAD argues that the equal protection claims of the plaintiffs, six married couples and one widower fromConnecticut, Vermont, and New Hampshire, require heightened scrutiny from the court. The brief shows how DOMA fails heightened scrutiny, or even a rational basis review.

“No interest advanced to defend DOMA can in fact withstand any level of scrutiny,” the brief reads.  “The reasons offered by Congress at the time of DOMA’s passage are either nonsensical or just another way of saying that Congress wanted to denounce and harm those gay men and lesbians who form long-term relationships and seek to have those relationships recognized and respected through civil marriage.”

GLAD also filed supporting affidavits from experts Michael Lamb, Ph.D, Gary Segura, Ph.D, Lititia Anne Peplau, Ph.D, George Chauncey, Ph.D, and Nancy F. Cott, Ph.D.

The next step is for Congress to respond to GLAD’s motion for summary judgment on or by August 15, 2011.

GLAD filed Pedersen v. OPM in Hartford, CT on November 8, 2010.  GLAD’s DOMA challenge Gill v. OPM won a July 8, 2010 ruling in Massachusetts federal district court that DOMA is unconstitutional.  That case is now on appeal. 

Co-operating counsel on Pedersen are Jenner & Block LLP (Washington, DC), Horton, Shields & Knox (Hartford), and Sullivan & Worcester LLP (Boston).  Co-counsel in the Gill case are Foley Hoag LLP, Sullivan & Worcester LLP, Jenner & Block LLP, and Kator, Parks & Weiser, PLLC.

Gay & Lesbian Advocates & Defenders is New England’s leading legal organization dedicated to ending discrimination based on sexual orientation, HIV status, and gender identity and expression.

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Obama Administrations Ends Legal Defense of DOMA

FOR IMMEDIATE RELEASE                                                                                              AG

WEDNESDAY, FEBRUARY 23, 2011                                                             (202) 514-2007

WWW.JUSTICE.GOV                                                                             TDD (202) 514-1888

STATEMENT OF THE ATTORNEY GENERAL ON LITIGATION INVOLVING THE DEFENSE OF MARRIAGE ACT

WASHINGTON – The Attorney General made the following statement today about the Department’s course of action in two lawsuits, Pedersen v. OPM and Windsor v. United States, challenging Section 3 of the Defense of Marriage Act (DOMA), which defines marriage for federal purposes as only between a man and a woman:

In the two years since this Administration took office, the Department of Justice has defended Section 3 of the Defense of Marriage Act on several occasions in federal court.  Each of those cases evaluating Section 3 was considered in jurisdictions in which binding circuit court precedents hold that laws singling out people based on sexual orientation, as DOMA does, are constitutional if there is a rational basis for their enactment.  While the President opposes DOMA and believes it should be repealed, the Department has defended it in court because we were able to advance reasonable arguments under that rational basis standard. 

Section 3 of DOMA has now been challenged in the Second Circuit, however, which has no established or binding standard for how laws concerning sexual orientation should be treated.  In these cases, the Administration faces for the first time the question of whether laws regarding sexual orientation are subject to the more permissive standard of review or whether a more rigorous standard, under which laws targeting minority groups with a history of discrimination are viewed with suspicion by the courts, should apply.

After careful consideration, including a review of my recommendation, the President has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a more heightened standard of scrutiny.  The President has also concluded that Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional.  Given that conclusion, the President has instructed the Department not to defend the statute in such cases.  I fully concur with the President’s determination.

Consequently, the Department will not defend the constitutionality of Section 3 of DOMA as applied to same-sex married couples in the two cases filed in the Second Circuit.  We will, however, remain parties to the cases and continue to represent the interests of the United States throughout the litigation.  I have informed Members of Congress of this decision, so Members who wish to defend the statute may pursue that option.  The Department will also work closely with the courts to ensure that Congress has a full and fair opportunity to participate in pending litigation. 

Furthermore, pursuant to the President’s instructions, and upon further notification to Congress, I will instruct Department attorneys to advise courts in other pending DOMA litigation of the President's and my conclusions that a heightened standard should apply, that Section 3 is unconstitutional under that standard and that the Department will cease defense of Section 3. 

The Department has a longstanding practice of defending the constitutionality of duly-enacted statutes if reasonable arguments can be made in their defense.  At the same time, the Department in the past has declined to defend statutes despite the availability of professionally responsible arguments, in part because – as here – the Department does not consider every such argument to be a “reasonable” one.  Moreover, the Department has declined to defend a statute in cases, like this one, where the President has concluded that the statute is unconstitutional. 

Much of the legal landscape has changed in the 15 years since Congress passed DOMA.  The Supreme Court has ruled that laws criminalizing homosexual conduct are unconstitutional.  Congress has repealed the military’s Don’t Ask, Don’t Tell policy.  Several lower courts have ruled DOMA itself to be unconstitutional.  Section 3 of DOMA will continue to remain in effect unless Congress repeals it or there is a final judicial finding that strikes it down, and the President has informed me that the Executive Branch will continue to enforce the law.  But while both the wisdom and the legality of Section 3 of DOMA will continue to be the subject of both extensive litigation and public debate, this Administration will no longer assert its constitutionality in court.

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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.