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Thursday, February 24, 2011

Is Winkler Right to Say Obama Was Wrong?

FoP Adam Winkler (UCLA) has an interesting take on the Obama Admin's decision to not defend an aspect of DOMA. After the jump, I've reprinted the post, and I hope the comments here will be somewhat more illuminating than those on HuffPo. (FWIW, I do share some of Adam's concerns but I would like to hear why they are misplaced, if in fact they are.)

Liberals rejoiced on Wednesday when the Obama Administration, which has often seemed indifferent to gay rights, announced that it would not defend a key provision of the Defense of Marriage Act in court. DOMA, as the law is known, establishes that only opposite-sex marriages are recognized by federal law. While DOMA is a discriminatory law and should be repealed, Obama's decision not to defend it should be condemned.

For decades, presidents, Democrats and Republicans alike, have taken the position that it's the executive's obligation to defend the constitutionality of all federal laws. The basis for this view is the Constitution's command that the president "shall take Care that the Laws be faithfully executed."

But now Obama has declared that if the president doesn't agree with a law--even if the courts say it's constitutional--he can choose not to defend it. This sets a terrible precedent that could well come back to haunt those who are cheering the president's decision. Don't be surprised if a President Palin points to Obama's decision when announcing her refusal to enforce and defend the landmark healthcare reform law because, in her view, the individual mandate is unconstitutional.

The administration decided not to defend DOMA on the basis of a controversial reading of the Constitution. Attorney General Eric Holder's letter to John Boehner, in which the announcement was made, stated that discrimination against gays must meet what the courts call "heightened scrutiny." That means that any law singling out gays must have unusually strong justification.

If only that were the case. Twice the Supreme Court has been asked to hold that discrimination against gay people warrants heightened scrutiny. And twice the Supreme Court has rejected that argument. Instead, the Court has suggested that discrimination against gays only needed to meet a lower standard of rationality. The lower courts asked to rule on the constitutionality of DOMA so far have consistently agreed that heightened review is not appropriate.

In my view, the Supreme Court was wrong to reject heightened scrutiny for sexual orientation discrimination. Nevertheless, that's the law of the land and, for better or worse, it's the Supreme Court, not the president, who gets to make that decision.

The administration had other alternatives. It could have continued to defend the relevant provisions of DOMA in court but drop some of the specious arguments traditionally used to support it--that marriage is only about procreation or that gay people aren't good parents. The administration could even argue that the Supreme Court was wrong to reject heightened scrutiny and that the law should be judged by that higher standard. But to declare unilaterally that the law is unconstitutional, on the basis of an interpretation of the Constitution with little support in Supreme Court doctrine, is a mistake.

Think of the laws that might be undermined by the next Republican president. Senator Rand Paul has argued that the Civil Rights Act may be unconstitutional. Senator Mike Lee has insisted that thefederal laws barring child labor were not within Congress's constitutional authority to enact. Some in Republican circles even suggest that the federal government doesn't have the constitutional power to require background checks on gun purchases.

It should take more than a presidential announcement to repeal these vital and important federal laws. Unfortunately, President Obama's decision on DOMA makes that very threat more of a reality.


Posted by Administrators on February 24, 2011 at 01:54 PM in Constitutional thoughts | Permalink


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Anon: My view, and I am open to rebuke, is that a court decides the appropriate level of scrutiny with each new "class" brought before it. There is no "default" level of scrutiny. In a novel case, part of what the court must decide--and therefore what the advocates must address--is the applicable scrutiny. So technically it is a blank slate. In many cases, that part of the argument/decision may not take up much time or space, in others it will be the entire argument...

Posted by: Ian Bartrum | Feb 28, 2011 7:03:26 PM

Does anyone have a view on the question I raised above? Isn't rational basis a default standard unless heightened review applies, or is it really a blank slate until a court addresses the specific classification at issue?

Posted by: Anon Reader | Feb 28, 2011 12:01:29 PM

Again, let's be clear: Holder: "The President has informed me that Section 3 will continue to be enforced by the Executive Branch. To that end, the President has instructed Executive agencies to continue to comply with Section 3 of DOMA, consistent with the Executive’s obligation to take care that the laws be faithfully executed, unless and until Congress repeals Section 3 or the judicial branch renders a definitive verdict against the law’s constitutionality.   This course of action respects the actions of the prior Congress that enacted DOMA, and it recognizes the judiciary as the final arbiter of the constitutional claims raised."

Posted by: Jim von der Heydt | Feb 26, 2011 9:01:02 PM


Joe's post swiftly and decisively shows that Prof. Winkler's argument is not just wrong but ill-informed and misleading. I was appalled at its errors and think it should be taken down.
The idea that there is a "refusal to enforce" the law in Holder's letter is just false, and a very basic misreading.

Having posted about it here, and in the absence of any defenders, you should now, it seems to me, take a position. Is Prof. Winkler's article correct, not just on what SHOULD happen, but on what HAS happened? If not, how do we fix the propagation of the errors, in the blogosphere?

By the way, I'm starting a new podcast, New Books in Law. More soon.


Posted by: Jim von der Heydt | Feb 25, 2011 11:21:07 AM

I find it troubling how uninformed some of the coverage has been from certain people who should know better. Orin Kerr, who I disagree with on policy but usually find sane, was quite worried about the matter over at Volokh Conspiracy (comparing it to torture memos ... then saying he wasn't) but had to back, back, back up when it was pointed out to him by Dellinger et. al. that he was off base.

It is debatable if Obama had to do this. I don't think so, but some say there is a "reasonable" way to defend the law, some say intermediate scrutiny is a stretch. But, the debate too often isn't on the merits. It is on some idea that what he did was particularly novel, which is fictional. Maybe I'm off base, but this ignorance troubles me.

Posted by: Joe | Feb 24, 2011 7:22:14 PM

The law is certainly not repealed. It remains in place and same-sex couples still will not get federal benefits. All this means is that DOJ will not defend Sec 3 against suits. Congress can defend it if it chooses, and other parties may even be able to intervene. Moreover, the decision not to defend is, as I read it, very narrow. They will ONLY not defend in Circuits (like the 2d) that have NOT settled on appropriate level of scrutiny--they just don't want to have to make the arguments IN FAVOR of rational basis (no history of disc; not an immutable charact, etc). By my reading, that leaves same sex couples in Iowa (for example) in exactly the same place they were two days ago--because the 8th Cir HAS definitively found that rational basis is the proper standard.

On the larger question of Executive review/constitutional departmentalism, people of all stripes have been arguing for years that the political branches should--in fact have a duty to--exercise independent constitutional judgment as part of a larger, less judicially dominated, constitutional dialogue. I see this as a welcome development in that regard, and if we don't like Executive decisions, at least we have a more direct recourse in the political process.

Posted by: Ian Bartrum | Feb 24, 2011 5:40:12 PM

"For decades, presidents, Democrats and Republicans alike, have taken the position that it's the executive's obligation to defend the constitutionality of all federal laws."

Not true. Didn't happen and Holder's letter references the point.

"president doesn't agree with a law"

Not true. The President has to determine, as has been the sentiment back to the 19th Century, there is no reasonable grounds to defend its constitutionality. Mere disagreement is not the test.

"refusal to enforce"

Putting aside the idea President Palin will simply follow Obama's lead (silly in itself), Obama is enforcing the law.

"rejected that argument"

I listened to the oral argument for Lawrence v. Texas more than once and don't recall a request for heightened scrutiny. The SC anyways never "rejected" the argument.

In fact, it didn't even decide the EP argument in Lawrence, though it basically did in dicta by saying EP was a key component of the matter. It said that rational basis was not met. Many think they really used "rational basis with teeth" in doing so which is in reality heightened review. This includes more than one circuit of appeals.

"could even argue that the Supreme Court was wrong to reject heightened scrutiny"

It did drop the other arguments and is arguing it is wrong. By so doing, it is doing the same thing it is doing here, refusing to defend the constitutionality. It is enforcing it all the same. It is not "unilaterally" doing anything of the kind.

"laws that might be undermined"

As was the case of past presidents, including Reagan saying Roe should be overturned, they still can do that. If they continue to enforce the law until the courts overturn the precedent, what is the problem exactly?


What is repealed? Are the couples getting benefits now?

Posted by: Joe | Feb 24, 2011 4:44:31 PM

If the Repubs want to tackle dismantling civil rights and child labor laws, well, more power to 'em. I pretty much assume that anyone on the "liberal" or "progressive" (or other left of the aisle designation) side that states they are against gay marriage is only doing so for political reasons. It wouldn't surprise me at all were Obama to openly admit he had no problems with it. Obama's decision seems to confirm that's where we're headed. It's also my understanding that Republicans like to operate in less transparent ways so we'd likely not hear about any decisions they made that were similar in nature. They'd just do what they want and not tell the citizens about it. Oy vey. What a mess our political system has become.

Posted by: Christie | Feb 24, 2011 4:31:36 PM

I'll leave more detailed response to others, but I take issue with the idea that failing to defend it and failing to enforce it are the same thing. In reality, the Obama administration has agreed to continue enforcing the law, just not defending it in court.

At the same time, I think the idea that an administration should simply not defend the law as ardently is even more dangerous: the law should be defended by people who are going to do their absolute best to defend it. If an administration isn't going to put their all into defending a statute in court, they should step aside and let someone who supports the law defend it.

Posted by: Andrew MacKie-Mason | Feb 24, 2011 3:19:53 PM

AnonProf is right, the Court just didn't decide. On the other hand, isn't the default that all laws get rational basis review unless a court adopts a higher standard of review for a certain category? Is it really fair to say that no standard of review exists at all until the Supreme Court addresses THAT group? Holder's letter says it is, and that the 2d Circuit is a tabula rasa.

But wouldn't that mean it's a tabula rasa as to left-handed cello players from Omaha, because no case has adopted a standard of review for left-handed cello players from Omaha? Or isn't it rational basis as a universal default?

Posted by: Anon Reader | Feb 24, 2011 2:32:24 PM

I take issue with the following statement: "If only that were the case. Twice the Supreme Court has been asked to hold that discrimination against gay people warrants heightened scrutiny. And twice the Supreme Court has rejected that argument. Instead, the Court has suggested that discrimination against gays only needed to meet a lower standard of rationality. "

Actually, the S.Ct. refused to rule on the appropriate standard of review, instead merely stating that the challenged laws in those cases didn't even pass rational basis scrutiny; hence, there was no need to address whether the standard of review should be hire.

Posted by: AnonProf | Feb 24, 2011 2:09:55 PM

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