The DOMA Battle

by Stephen H. Miller on April 20, 2011

The Human Rights Campaign’s castigating the House leadership for spending $500,000 (and probably much more) to defend the Defense of Marriage Act in court cases where its constitutionality is being challenged strikes me as proper. But the group’s criticism of the law firm of King & Spalding for taking the House’s case to defend the constitutionality of DOMA is somewhat grayer. While I don’t know that I would want to hire the firm that’s fighting against my rights, all sides deserve an advocate and I don’t fear a strongly argued case that makes clear what the constitutional issues are.

Update: King & Spalding feels the pressure and withdraws. Firm Partner Paul Clement, a former Solicitor General, resigned in order to continue the defense of DOMA he agreed to undertake. LGBT activists cheered; others warned of a New McCarthyism.

I wish the House wasn’t pandering to social conservatives in holding hearings on the legality of President Obama’s decision not to have the Justice Department support DOMA in court. But I question how constructive HRC’s attack on the hearings (“fixated on beating up on lesbian, gay, bisexual and transgender Americans”) will be. Democrats are able to call witnesses, too, if they so choose, I believe, so wouldn’t it be more productive to show up and make the best possible case?

More. In an earlier post I praised the administration’s decision to belatedly, after two years, stop defending DOMA in court. As I asked then:

Will the LGBT Obama partisans…who for the past two years have assured us that Obama had no choice but to defend DOMA against legal challenges, that he was legally obligated to order his Justice Department to do so, and who maintained that position by dismissing those of us who pointed to contrary precedents, now admit they were wrong?

Needless to say, the view that many of Obama’s supporters took then sounds eerily similar to the position that the House GOP is now taking—and that the pro-Obama folks are excoriating.

{ 17 comments }

Wilberforce April 20, 2011 at 2:23 am

I agree, except that congressional dems are some of the weakest invertebrates on Earth. On the other hand, we have some very serious talent arguing the case in CA, and if they get involved, it could be a blowout in our favor.

Houndentenor April 20, 2011 at 12:28 pm

No, not all liberals were defending the administration’s handling of the DOMA case. Many were not defending the administration and were complaining loudly.

About the law firm…no I don’t suppose that the firm taking on this work means anything about any partner’s views on the merits of the case. It will be high profile and obviously quite lucrative for the firm. $500k? Yeah right. Anyone who knows the least bit about legal billing knows there’s no way this comes in under that amount. That said, I’m glad it’s not a firm I’m working for. Working for the firm defending Bernie Madoff was bad enough.

BobN April 20, 2011 at 6:49 pm

Mr. Miller, go back into the history of the various DOMA cases and see if you can figure out why, when, and where the DOJ decided to stop defending Section 3.

Carl April 20, 2011 at 7:03 pm

Are any Tea Party leaders complaining about this decision? Isn’t the Tea Party supposed to oppose wasteful government spending?

another steve April 20, 2011 at 7:26 pm

I haven’t a clue what BobN’s point is. The Washington Blade reported that Obama’s Department of Justice decided to stop supporting DOMA in February 2011.

BobN April 20, 2011 at 11:05 pm

Why, thank you, another steve, for pointing us to an article which clearly puts forth the fact M.r Miller ignores.

“The Obama administration made the decision as it faced two new pending cases against DOMA”

another steve April 21, 2011 at 3:15 am

The Blade also contains this awkward line:

“Many of them were critical on the president to discontinue his defense of DOMA in previous cases.”

Although unfortunately garbled, the point is that in previous cases Obama’s DOJ suppoted DOMA.

another steve April 21, 2011 at 3:25 am

This took about 2 seconds to find:

On July 8, 2009, Massachusetts Attorney General Martha Coakley filed a suit, Massachusetts v. United States Department of Health and Human Services, challenging the constitutionality of DOMA.

Guess which side Obama’s DOJ was on. And there were other Obama-era pre-2011 cases as well. BobN, why not do some research before accusing others of ignorance?

BobN April 21, 2011 at 6:40 pm

If you did your research, then you surely noticed that the notice of APPEAL wasn’t filed until October of last year and that after analyzing their position and the arguments they would have to make and the precedent in that circuit, the DOJ notified the court they would not proceed.

There are rules about how and when you have to rely on precedent. I’m sure you’re familiar with them.

I don’t accuse you or Miller of “ignorance”. Well, maybe willful ignorance… As we know, that’s not really ignorance at all. It’s worse. Ignorance is innocent.

another steve April 22, 2011 at 5:32 pm

If you did your research, then you surely noticed that the notice of APPEAL wasn’t filed until October of last year

BobN, just who do you think was defending DOMA in the 2009 suit brought against the federal government by the state of Massachusetts? (That would be the suit in which the lower court ruled on behalf of Massachusetts and found DOMA unconstitutional, setting up the appeal which the Obama administration then decided not to pursue.)

Jorge April 21, 2011 at 12:31 am

I agree with this.

“The Obama administration made the decision as it faced two new pending cases against DOMA”

I thought I understood your point and this made me lose it. They entered the courtroom, looked at their opponent’s case, and got scared.

The law firm thing. I think even less of the attack than Stephen Miller does. Then I remember about Justice Sotomayor that she used to work for this pretty liberal civil rights-based firm or group. Sen. Graham didn’t hold it against her. Ideology is a part of business. There will always be a law firm to represent these cases. I’m not sure I want to see these firms split into “liberal” and “conservative,” but it wouldn’t be the end of the world if they did.

Jorge April 21, 2011 at 11:24 am

I thought I understood your point and this made me lose it. They entered the courtroom, looked at their opponent’s case, and got scared.

That second was supposed to be a question.

BobN April 21, 2011 at 2:25 am

I thought I understood your point and this made me lose it.

Miller says:

“Will the LGBT Obama partisans…who for the past two years have assured us that Obama had no choice but to defend DOMA against legal challenges, that he was legally obligated to order his Justice Department to do so, and who maintained that position by dismissing those of us who pointed to contrary precedents, now admit they were wrong? ”

Obama defended DOMA and still is defending DOMA in the courts where there is controlling precedent regarding the level of scrutiny. These two new cases are different and, to answer Miller’s question, they weren’t around to be defended or not defended when he asked his question.

another steve April 23, 2011 at 7:14 pm

Again, BobN, what in the world are you talking about? And just who do you think was defending DOMA in the 2009 suit brought against the federal government by the state of Massachusetts? (That would be the suit in which the lower court ruled on behalf of Massachusetts and found DOMA unconstitutional, setting up the appeal which the Obama administration then decided not to pursue.) The 2011 appeal is to the 2010 ruling in the 2009 case — the case in which Obama’s DOJ defended the constitutionality of DOMA.

At this point, you’re just being disruptive because you won’t admit you were wrong.

Jorge April 23, 2011 at 7:37 pm

So in other words, you’re asking what’s so different about the case that’s going to the Court of Appeals (right?), compared to the same case heard in lower courts?

(Hmm)

another steve April 24, 2011 at 7:54 pm

Clearly, the Obama administration had defended the constitutionality of DOMA in the lower court case (argued in 2009). And in another 2009 case. There is no arguing about that. Read the case histories.

While this case will be argued again on appeal, it’s still the SAME CASE. What happened is that after the 2010 election, Obama decided to shore up his LGBT support by withdrawing the Dept. of Justice’s support for DOMA.

You guys are just wrong to insist against the facts that this was the first chance Obama had to weigh in. The facts don’t reconstitute themselves to fit your pro-Obama (and, understandably on this matter, anti-GOP) biases. We don’t quite live in Orwell’s 1984 yet (“Britain has never been at war with Oceana”; “Obama’s DOJ never supported DOMA”).

Tom April 24, 2011 at 9:15 pm

Anothersteve, I think you are both right and wrong.

(1) You are right when you same that the Obama administration has defended DOMA in the past. It has offered a defense in serveral cases, most notably Gill v. OPM and Massachusetts v. DHS, as well as several others.

(2) You are wrong through, I think, when you suggest that the two cases that the Obama administration refused to defend are “the SAME CASE”.

Obviously, in a literal sense, the case sets (on the one hand, Gill v. OPM and Massachusetts v. United States, tried in 2009, and on the other hand, Peterson v. OPM and Windsor v. United States, filed in 2010) are not idential.

But more to the point, in a broader and mone important respect, the two case sets are quite different.

In the former case set, brought in the 1st Circuit, the courts had established precedent setting the standard for review in sexual-orientation cases; in the latter case set, brought in the 2nd Circuit, no precedent is established. As a result, the question of the appropriate level of review was not at issue at the trial court level where the Obama administration defended in the former case set, but the question of the appropriate level of review is a critical issue in the latter case set, right from the get-go.

As a result, in the latter case set, the DOJ would need to argue that issue in the trial court, and that was the legal distinction on which the DOJ refused to defend. The DOJ reviewed the question, concluded that the correct standard for sexual orientation cases was heightened scrutiny, and concluded that under heightened scrutiny a defense had no reasonable chance of success. The lack of precedent in the 2nd Circuit is what led to DOJ’s refusal to defend the second case set.

That refusal, in turn, led the DOJ to cease its defense of DOMA in the former case set, Gill v. OPM (Hara v. OPM on appeal) and Massachusetts v. United States. Obviously, the DOJ could not plausibly argue for a lower level of scrutiny when it had concluded that heighten scrutiny was the appropriate standard. It would be forced to argue for a heightened standard on appeal, and if it were successful on that score, the defense would, in its opinion, have no reasonable chance of success.

I realize that the differences may seem like lawyerly nit-picking to you. But within the structure of constitutional law, the level of review is important, and there is a legal logic in the DOJ’s positions vis a vis the two case sets that follows directly — and inevitably — from its conclusion that heightened scrutiny is the appropriate standard.

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