Obama Administration Attempts to Weaken Constitutional Protections for LGBT Americans

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.

Well, I'm sorry it's hard to change laws where there are state-wide differences. Turns out that taxation and employment law are also areas of disagreement between states, but the Federal government had no problem wading into those issues.

Constitutional jurisprudence clearly supports the idea that mere inconvenience does not justify discrimination. So perhaps it's time for the Obama administration to roll up its sleeves and start creating the policy changes it likes to talk about.

At least, we wouldn't have expected Obama to argue in favor of gutting the little constitutional protection LGBT Americans have left. If they are successful in Smelt, the rational basis test will have lost the only teeth it possessed.

Follow Emma Ruby-Sachs on Twitter: www.twitter.com/EmmaRubySachs

Comments

[david43a]

Just be silent and wait your turn! on GLBT, IRAQ, BANK REGULATION, THE ENVIRONMENT, TOTURE,
RENDITION, JUSTICE, FREEDOM, ENERGY etc. etc. etc.
The man has a lot on his plate.....­you can not expect him to do everything at once!
Or, apparently, anything at all.

[yozampj]

Anybody know how I can get a question directly to the author of the article, Emma Ruby-Sachs? Having read this article several times, I'm interpreting the Justice Department's comment very differently than she did.

I'm going to summarize my understanding in third-grade language: It appears to me that the Justice Deparment is saying "If we subject DOMA to rational basis review, it's likely the court will uphold discriminatory rulings." And it appears theJustice Department is saying that's a bad thing. So . . . aren't the Justice Department and Ms. Ruby-Sachs in agreement? I'm not a lawyer, so somebody help me out here -- Thanks

[carsntrucks]

The truth is, it's not discriminatory. It's discretionary. People keep overusing that word -- discrimination -- because it fits the victim narrative gays want to believe about themselves. But a lack of recognition of the romantic relationships of a small minority is in no way discriminatory. It might be better as a policy dispute to regard them in the same way (I'd disagree, but at least that's a cogent viewpoint) as heterosexual couples, but it's not unconstitutional for them not to. There is no caselaw that would suggest same-sex marriage is a constitutional right. NONE.

[MauiKat]

ARRRRRRRRRRGHH! jeeze, this crap drives me CRA-ZEEE-and I'm not even gay!

[Scarborian]

If your religious beliefs forbid same sex marriage then don't get married to someone of the same sex. If your religious beliefs forbid you from marrying someone from a different religion or a different race then don't marry someone from a different religion or a different race. You live your life according to your beliefs and leave everyone else to live their lives according to their beliefs.

Isn't the DOJ tasked with the sometimes odious job of defending the existing laws, no matter how bad they are? Changing the existing laws is a job for the legislature, not the DOJ.

[islanddreamer]

The Obama administration has an opportunity to take principled stands on a number of difficult issues but instead tries to find consensus. You can't compromise human rights (read gay rights), you can't compromise the right to adequate health care. Most fair-minded people understand this. The democrats need to stick together and fight for what is right. It may alienate the far right, but then the far right can't be won over no matter what concessions Obama hands them.

I'm demoralized by the democrat's squandering of this historic opportunity to make meaningful changes. Clearly both parties have been bought by special interests (read corporate interests).

[piperflyer]

I'm so sorry.

[Snoweman]

Talking of ignorance of the Bible, President Bush ignored the teachings of Jesus - God incarnate, according to his faith - who never uttered one single word about homosexuality, according to the Gospels, but did make it clear that peacemakers were blessed.
Also, I do find it odd that homosexuality is mentioned specifically only once in the Bible - in Leviticus. St Paul condemns people who exchange their normal sexual behaviour for same sex activities associated with pagan cults. The Old Testament also praises Lot who has sex with his own daughter in a cave, after his wife died. Perhaps, if we are to take the Bible literally, fathers should be legally allowed to have sexual relationships with their daughters?
As for those who condemn adultery, Jesus forgave the woman caught in adultery, who was about to be stoned, and told her not to do it again. I am not a fan of adultery, but if two men are married to each other, then they can be sexually faithful within the context of a loving marriage.
It is also worth noting that DOMA cost more than $1.5 billion - I'm sure a worthy use of tax dollars. We must thank God that money wasn't wasted on something frivlous, like healthcare­...

[dochollidey]

The following is a from a letter written by George Washington, "The Father of Our Country", to John Adams in 1797. For all of you who may not think that the United States was founded as a Christian nation:

"Although guided by our excellent Constitution in the discharge of official duties, and actuated, through the whole course of my public life, solely by a wish to promote the best interests of our country; yet, without the beneficial interposition of the Supreme Ruler of the Universe, we could not have reached the distinguished situation which we have attained with such unprecedented rapidity. To HIM, therefore, should we bow with gratitude and reverence, and endeavor to merit a continuance of HIS special favors". [1797 letter to John Adams]
The following is a letter from James Madison to the 1778 General Assembly of Virginia:

We’ve staked our future on our ability to follow the Ten Commandments with all of our heart.”

“We have staked the whole future of American civilization, not upon the power of government, far from it. We’ve staked the future of all our political institutions upon our capacity…to sustain ourselves according to the Ten Commandments of God.” [1778 to the General Assembly of the State of Virginia}

[AbbieXHoffman]

I know your desparatly trying to defend your stance that the bible is the basis of our laws. So tell me....the bible legalizes all these things below too. Why aren't these in our laws? Of is it up to you to pick and choose if it relates to homosexuals.

1. Rape
2. Murder
3. Slavery
4. Human sacrifice
5. Incest
6. Selling of daughters
7. Death for adultery
8. Death for curing out one's parents.
9. Death to those who worship another God.

[awerling]

Exactly, Abbie. Besides, this article isn't about religion. It's about law. The fact that people are falling back on religion proves to me that opposition to same-sex marriage is based solely on convenient and inaccurate Biblical interpretation. As always.

I'm interested in better understanding the legal dimensions of this, and hope to find answers to yozampj's question above.

[dochollidey]

Whoops!!!.­...not at democracy

[dochollidey]

ok idea....I am happy at least that you realize that our country is a republic and not a democrace. Not very many people want to acknowledge that.

[kwijibo]

How long has it been since George Bush signed DOMA into law? You'd have thought Democrats would have repealed it by now or at least tried to do so.

Wait a minute, hold the phone. I was just reading that Bill Clinton signed DOMA into law, not George Bush!

While we're at it, maybe we can work on overturning George Bush's Don't Ask Don't Tell law.

Oh you say Bill Clinton signed that into law, also? There was a Democratic majority in congress at the time, too? You say Bill Clinton didn't even try to veto them and force a veto override?

[awerling]

I agree that Clinton really blew it. It should also be stated that there was a very hostile Congress to deal with. I don't know that either Clinton or Obama are doing well with their bizarre, petty congresspeople, but it's another parallel between then and now.

[chelliza]

No laws should be based on religion, or any single groups idea of which book is "right".

[Romulus]

When the first DOJ brief in response to Smelt came out last month, I wasn't clear whether Obama had even seen the brief let alone approved it. But, with all the uproar over that brief, I'm sure that Obama has seen this latest response and that it is his position on DOMA.

While he believes that DOMA does discriminate, he also believes it's Constitutional. If it's Constitutional, he is obligated to defend it. I know that many of you here have said he's not and cited Bush's refusal to defend Roe. But is that what we want? Do we want a President to refuse to defend a law JUST because he doesn't believe in it? To refuse to defend Roe just because he doesn't believe in abortion?

Obama has repeatedly stated that he believes that DOMA AND DADT should be REPEALED, not struck down by either court or executive action.

Personally, I believe that Section III of DOMA is NOT Constitutional. I believe it violates the 10th amendment which gives the States the right to define marriage. Whatever the individual States decide is marriage within their boders MUST be recognized by the Federal government. By violating the 10th, DOMA also violates the 14th because it does not treat a legal SSM in Massachusettes equally to the marriage of a 13 year old in Georgia (or whatever State it is that allows marriage of kids that young).

But I'm not a Constitutional lawyer; my opinion could very well be totally incorrect.

[Wingit]

Good post. If you review the President's oath of office, it says he will defend and uphold the Constitution of the U.S. (and the laws written under it). What a field day the right wing would have if he did not put up a defense of the law. Now it is up to the supreme court to decide. I agree with you; they have every right to decide that this law does violate the Constitution and set it aside. If they do, here come the right wingers again complaining about "activist judges".

[LCLA]

So, is there a bill in Congress right now to repeal either DOMA or DADT?
If so, who are the sponsors? What are the bill numbers, so we can lobby in support of them?

[SD Indy]

Good thing you asked. Here are two spreadsheets I created of the more "gay-friendly" legislators who should be lobbied. The first one is for DADT (in the House - H.R. 1283). The second one is ENDA (for Senators - S 1584). There is currently no pending legislation to repeal DOMA. You can always check thomas.loc.gov and do a bill number search to see who has co-sponsored the legislation.

http://spreadsheets.google.com/ccc?key=0AuZ0gmfWDsHjdE9icEpfcEVsei1Ub3M5bDVpYkxBMnc&hl=en

http://spreadsheets.google.com/ccc?key=0AuZ0gmfWDsHjdHlRdUNwR29fdnZEbmZIZG5YRzFhRkE&hl=en

[dochollidey]

I never said that there were no laws before The Bible. I merely mentioned that the laws of the United States were based on Bible laws.

[dochollidey]

Idea.....I­f you will notice I said our laws were BASED on the Bible....n­ot copied word for word. God gave Moses authority to set up judges to rule over the people and judges under judges to handle the lesser cases until there were a tier of judges under each other because it was too much for one man (Moses) to handle. This is what our laws are BASED on. Instead of me picking up a law book, maybe you should pick up a Bible. You just might learn something.

[Idea1013]

I've learned all I care to from the bible. This still doesn't answer the question. We are a republic, based on a govt. system in place before the writing of the bible. Many of our laws have evolved from Greek and Roman law, not biblical law. This is what history teaches us.

[chelliza]

It is scary to think that people really think this countries laws are, or even should be based on any religion. That would be counter to everything this country stands for as their are many religions in this country, as there should be. Just as it is scary to think that a country would base its laws on say, the religion of Islam.