First, the Justice Department filed a new brief in Smelt which takes a radically different tone than their previous offering. John Aravosis has an alert, with the text. Aravosis quotes this portion without, I think, noting the key point:
Plaintiffs' equal protection and due process claims raise several issues, all of which were addressed in the United States' motion to dismiss. As established in the government's opening memorandum, federal courts have unanimously upheld the constitutionality of DOMA.5 Plaintiffs' only response to the government's arguments in favor of dismissal is to assert, without elaboration, that "same gender marriage is a . . . fundamental right" such that DOMA is subject to "heightened scrutiny," and to imply that DOMA constitutes "gender discrimination" (Doc. 40 at 4, 5). The United States refuted these assertions in its opening memorandum. (Emphasis added)
If that indeed is the argument being made, it's the wrong argument. The core issue, as I see it, is that marriage is a fundamental right, and that under Constitutional guarantees of equal treatment under the law Congress must show a rational reason for withholding that right from any group. Congress has not done so.
However, this brief does something that the previous filing did not. From Chris Geidner at Law Dork:
Those who assert that the Obama Administration did not even need to file a brief will be dissatisfied with the brief because it essentially incorporates the earlier arguments into this reply brief and continues to defend DOMA as a legal matter. But, for those many people who believe that the government, in a situation such as this, does have a responsibility to defend the law, this brief makes clear the distinction between opposing a policy and defending a law.
From the brief itself to Obama’s statement and in light of the other changes being advanced by the Administration, I continue to believe that the original DOJ Smelt filing was made without the full appreciation (or knowledge) by higher-ups. I do think that the uproar following its filing has changed the approach of the Administration, and, for that, the debate was worthwhile. This filing and statement show a keen awareness of and sensitivity to that impact, while maintaining a clear principle to defend a law that repeatedly has been found to be constitutional.
Dale Carpenter also notes the shift in attitude:
What a difference two months can make. While the DOJ hasn't retracted its earlier arguments, its new brief is much more friendly to gay families in tone and in substance. It also emphasizes the plaintiffs' lack of standing and suggests that a ruling on the merits would be unnecessarily broad. The original motion could have been this narrow and done the job.
Consider this almost apologetic, but also uncontroversial, passage:
With respect to the merits, this Administration does not support DOMA as a matter of policy, believes that it is discriminatory, and supports its repeal. Consistent with the rule of law, however, the Department of Justice has long followed the practice of defending federal statutes as long as reasonable arguments can be made in support of their constitutionality, even if the Department disagrees with a particular statute as a policy matter, as it does here.
There was nothing like this anti-DOMA language in the June brief. There was no mention of the administration's anti-DOMA policy views. The DOJ labels DOMA a form of discrimination, although it doesn't say what kind. Back in June, the DOJ went out of its way to argue that DOMA does not discriminate on the basis of sex or sexual orientation. In fact, the new brief makes no new argument for DOMA, and only vaguely says it supports the value of "federalism."
This brief seems, on the whole, to do almost a 180 in that it hands proponents of same-sex marriage some key arguments, although, as both Geidner and Carpenter note, the government still takes the stance that DOMA is constitutional -- based on previous court findings which in turn, I think, were based on flawed arguments such as I noted above. However, there is one passage that scores a bulls-eye:
Unlike the intervenors here, the government does not contend that there are legitimate government interests in "creating a legal structure that promotes the raising of children by both of their biological parents" or that the government's interest in "responsible procreation" justifies Congress's decision to define marriage as a union between one man and one woman.
Carpenter also notes that the brief uses Justice Scalia's dissent in Lawrence vs. Texas to undercut arguments against SSM. I hope Scalia has a fit right there in the chamber. Carpenter's conclusion, I think, gets most of it right:
While gay-rights groups complain that the DOJ is continuing to defend the constitutionality of DOMA (see here and here), and are understandably disturbed by the still-unabandoned arguments the DOJ made back in June, they should be delighted by the turn taken in this reply brief. It will serve the cause of SSM in state and especially federal courts for years to come.
What seems to me to be more important is that this filing very effectively undercuts the previous motion pretty much across the board, even though it still insists that DOMA is constitutional.
The next stage in this is the suit being argued by Ted Olson and David Boies. Very interesting profile of Olson in NYT last week, that brings out how feeble the procreation/child-rearing argument is:
In the gay community, though, conspiracy theories initially abounded that Mr. Olson had taken the case to sabotage it. While many have since come around, fears remain that a loss in the closely divided Supreme Court could deal a setback to the movement.
He dismisses Mr. Cooper’s contention that the California ban is justified by that state’s interest in encouraging relationships that promote procreation and the raising of children by biological parents. If sexual orientation is not a choice - and Mr. Olson argues that it is not - then the ban is not going to encourage his clients to enter into heterosexual, child-producing marriages, he insists. Moreover, he says, California has waived the right to make that argument by recognizing domestic partnerships that bestow most benefits of marriage.
So there's a double-whammy on that one. That argument is toast -- and that my provide the grounds for revisiting the decisions in New York and Washington state, which relied heavily on that argument.
The Times also has some interesting commentary on the suit.
And Gabriel Arana at Box Turtle Bulletin points out one interesting wrinkle in Perry vs. Schwarzenegger (the real name of the Olson/Boies challenge to Prop 8:
Today, all parties to the suit filed another round of “case management statements,” proposals that outline what the trial will cover, what legal questions will be addressed, and which sort of evidence will be gathered and presented. What is interesting about these statements is that the case is shaping up to be much broader than the state challenge to Prop. 8, which hinged on the technical distinction between an “amendment” and a “revision.”
Crucially, the plaintiffs plan to go after the Yes on 8 Campaign to show that they were motivated by anti-gay animus. This will involve having the Yes on 8 people testify and hand over documents relevant to the campaign.
If some gay rights groups were frustrated by the legal language and fine lines involved in the state challenge, this is looking like it will be the big fight they wanted.
That will be a key argument: Prop 8 motivated by animus. That's what lost the Romer case for the State of Colorado. Now that Obama's DoJ has torpedoed the procreation/child-rearing argument, and undercut others, that should be a strong one.
OK -- it's a situation still in flux -- there are other cases going ahead as well, including the Massachusetts challenge to DOMA -- but I think things are looking up. Of course, there are elements on the SC that will hear arguments and then base their opinions on what they have already decided (are you listening, Justice Scalia?), so it's still iffy.
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