By Billy Corriher. Mr. Corriher is a 2010 ACS Public Interest Fellow.
The Obama administration's decision to abandon its legal defense of the Defense of Marriage Act (DOMA) has been criticized by many conservatives as a political move. Regardless of the political ramifications, the decision could have far-reaching legal implications. While it has previously defended the law in court, the Department of Justice (DOJ) reversed course this week. In a letter to Congress, DOJ announced that it would no longer defend the statute, although it would continue to enforce it. DOJ cited the fact that the two most recent lawsuits were filed in the Second Circuit, which has not yet decided how much protection the Equal Protection Clause affords gay persons. In defending these suits, DOJ had to decide this threshold question for itself.
Some circuits have held that Equal Protection challenges to laws targeting gay persons are analyzed under the "rational basis" test, which merely asks whether there is a rational justification for the statute. The Court recently utilized this test in striking down laws discriminating against gays, but DOJ noted that the Court held that "the laws could not even survive the more deferential rational basis standard." In other words, the Court did not decide which test to use because the statutes could not pass the easiest test.
The Department of Justice noted four factors that the Court has used in Equal Protection cases to determine whether to use the much tougher "strict scrutiny" test. The Court asks whether the group that is affected by the law (1) has suffered a history of discrimination, (2) is a minority group or is politically powerless, and (3) exhibits immutable or distinguishing characteristics (4) that are not related to "legitimate policy objectives" or the group's ability to contribute to society. DOJ concluded that these criteria describe the gay community. DOJ mentioned the history of purposeful discrimination against gays. Recent legislation, such as the repeal of Don't Ask Don't Tell, indicates that gay persons have some political power, but DOJ noted that the Court applied strict scrutiny to laws affecting women at a time when women had already achieved some legislative victories that helped ensure equality. DOJ noted the "growing scientific consensus" that sexuality is immutable and the "growing acknowledgement" that sexuality is not related to an individual's ability to contribute to society.
While this development has been rightly applauded by progressives, the Obama administration's decision could alter the balance of power between the three branches of government. In a sense, the decision results in a diminution of Congress' legislative power. DOJ's refusal to defend the law lends credence to the argument that Congress passed an unconstitutional statute. Yale Law School Professor Jack Balkin noted that, while courts may disagree with the president's view of the constitutionality of a statute, DOJ's decision "gives federal courts cover to say that their decisions are consistent with the views of at least one of the national political branches." As in the framework for executive power developed in the Steel Seizure cases, an exercise of Congress' authority may be viewed as more legitimate - in the Court's eyes - when the other political branch agrees that the action is constitutional. When the president goes out of his or her way to challenge the constitutionality of Congress' actions, it is likely to attract the Court's attention.
Some have argued that DOJ's decision could be interpreted as an executive power grab. This argument warns that DOJ is infringing on the Court's role as interpreter of the Constitution. There is a big difference, however, between the executive branch refusing to enforce laws it believes are unconstitutional, as the Bush administration often did, and the President refusing to defend a law in Court. The Constitution requires the president to enforce federal law, not defend it in Court.
The Obama administration decision should be viewed, instead, as increasing judicial authority at the expense of Congress' legislative authority. After all, the courts will have the last say on whether a statute is constitutional or not. The president is merely offering his opinion, but, in doing so, he is giving the courts more leeway to strike down the statute. It is difficult to understand how the Court's presumption that Congress' statutes are constitutional will not be undermined when the other political branch disagrees. By refusing to enforce DOMA, the President is giving away Congress' power. The president's decision makes it more likely that at least one circuit court will rule the statute unconstitutional. Even so, it is hard to imagine that today's Supreme Court will agree.