Cheating marriage: a tragedy in three acts.

• Author: Eastman, John C.
• Position: Act II. DOMA Challenges in California and Massachusetts through Epilogue, with footnotes, p. 314-343 - Brigham Young University Symposium on the Future of Families and of Family Law

ACT II. DOMA CHALLENGES IN CALIFORNIA AND MASSACHUSETTS.

Scene 1. Senate Judiciary Committee Hearing Room, Dirksen Senate Office Building, Washington, D.C.

On January 26, 2009--less than a week after taking office as President of the United States, President Barack Obama nominated Harvard Law School Dean Elena Kagan to the position of Solicitor General of the United States. (179) In her opening remarks during her confirmation hearing in February, Ms. Kagan emphasized the "critical responsibilities" that the Solicitor General owes to Congress, "most notably, the vigorous defense of the statutes of this country against constitutional attack." (180) In her response to follow-up written questions, Kagan stated that her role as Solicitor General would be to "advance ... the interests of the United States, as principally expressed in legislative enactments and executive policy." (181) "I am fully convinced," she added, "that I could represent all of these interests with vigor, even when they conflict with my own opinions. I believe deeply that specific roles carry with them specific responsibilities and that the ethical performance of a role demands carrying out these responsibilities as well and completely as possible." (182) She even asserted that the obligation to defend acts of Congress also applied in situations where the policy of the new administration, with respect to the law, differed from that of a previous administration: "The cases in which a change between Administrations is least justified are those in which the Solicitor General is defending a federal statute. Here interests in continuity and stability combine with the usual strong presumption in favor of defending statutes to produce a situation in which a change should almost never be made." (183) Ms. Kagan was confirmed on March 19, 2009.

That same month, a lawsuit challenging the Federal Defense of Marriage Act ("DOMA") was filed in Massachusetts, and another case involving DOMA was already pending in California. (184) Although the Solicitor General's office normally does not get involved in federal district court litigation--its primary task is to handle representation of the United States before the Supreme Court--the office does occasionally take an active role at the district court level in high-profile litigation in order to articulate the position that the United States will take and design the litigation strategy. That happened with the DOMA cases. (185)

Scene 2. Office of the Solicitor General, U.S. Department of Justice, 950 Pennsylvania Ave., NW, Washington, D.C., June 15, 2009. (186)

Principal Deputy Solicitor General Neal Katyal: The purpose of our meeting this morning is to decide what position the United States is going to take in pending litigation challenging the constitutionality of the Federal Defense of Marriage Act. As you know, Elena here--I mean, General Kagan (sorry about that!)--testified under oath during her confirmation hearing back in February that she viewed one of the "critical responsibilities" (l87) of the Solicitor General to be "the vigorous defense of the statutes of this country against constitutional attack." (188) I know none of us who have recently been appointed by President Obama agrees with DOMA, but General Kagan also testified that her duty to vigorously defend acts of Congress applies even when those laws conflict with her own opinions. Indeed, she said that the "ethical performance" (189) of her job as Solicitor General "demands carrying out these responsibilities as well and completely as possible," (190) even and, perhaps, especially in situations where the policy of the new administration with respect to the law differed from that of a previous administration. And she specifically said that "there is no federal constitutional right to same-sex marriage." (191) So I guess we're stuck with putting up a defense of DOMA.

Solicitor General Elena Kagan: Not so fast, Neal. You have to read what I said more carefully. I said that I had a duty to vigorously defend acts of Congress "as well and completely as possible and that policy changes reflected by a change in administration should "almost never" (193) result in declining to fulfill that duty by failing to defend an act of Congress. Indeed, the two cases challenging the constitutionality of DOMA that we're discussing this morning are exactly the cases I had in mind when I so carefully chose those words during my testimony.

I also took an oath to support and defend the Constitution, and in my view, DOMA is unconstitutional. Just because I said "[there] is no federal constitutional right to same-sex marriage" (194) in my testimony doesn't mean I was saying that the courts would not recognize one at some point, only that there was not currently such a right that the courts had recognized. It all depends on what the meaning of "is" is! And as you know, when I was asked whether I had ever offered an opinion about whether the Federal Constitution should be read to confer a right to same-sex marriage, I said that "I [did] not recall ever expressing an opinion on [that] question." (195)

So the short of it is that I have no intention of defending DOMA if there is, in my view, no reasonable basis for doing so. So let's explore what our options are.

Acting Assistant Attorney General Tony West: Well, that should be an easy matter in the California case, Smelt v. United States. (196) As you know, on March 9--the very day I was appointed by President Obama as Acting Assistant Attorney General--the Smelt case was removed from state court to federal court. I directed Scott Simpson, the senior trial counsel on the case, to bring me up to speed. He tells me there are serious jurisdictional problems in that case. The plaintiffs were married in California, reside in California, and have not alleged that another state has refused to recognize their marriage in reliance on section 2 of DOMA, nor did they allege that they have sought any federal benefits that would be denied to them because of section 3 of DOMA. So we can legitimately argue that the case should be dismissed for lack of standing without actually having to put up a defense of DOMA, and did so two weeks in our opening brief asking the district court to dismiss the case. (197)

Solicitor General Elena Kagan: Not good enough. As you know, that opening brief really ticked off the President, particularly the comparison of same-sex marriage to incest on page eighteen. (198) I want to make a statement about how the United States no longer agrees with DOMA. Something like this: "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." (199) But I also do not want to lock us in to saying that our only disagreement with DOMA is on policy grounds. So let's add in our upcoming reply brief something like this: "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." (200) On second thought, let's not put the "reasonable arguments" language in italics. No need to telegraph where we're headed with this. But the beauty of this strategy is that, even when the case is dismissed on jurisdictional grounds, other courts will start picking up on the fact that the United States not only disagrees with DOMA as a matter of policy, but finds it to be "discriminatory"--that should get the living constitution juices flowing for our activist friends on the bench.

Oh, and one more thing. Let's stop arguing that the United States believes only rational basis review applies. Instead, let's just point out that governing precedent in the Ninth Circuit says that only rational basis review applies. As Tony has noted before, it doesn't "take a rocket scientist to know that one of these days someone [is] going to file a challenge to DOMA in a circuit that [has] yet to decide whether gays and lesbians should be considered a suspect class." (201) When we get such a case where there is no binding circuit precedent on the standard of review, we can argue that heightened scrutiny ought to apply. In fact, let's start disavowing all of the arguments in support of DOMA that were actually offered when Congress approved the statute back in 1996. Under rational basis review, we don't have to rely on rationales actually offered; any plausible argument in defense of the law will do. So in the reply brief, say something like this: "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." (202)

But let's also repudiate the claim, advanced by those damn intervenors in the case and by Congress when it adopted DOMA, that defining marriage as between a man and a woman has anything to do with children. Say something like this:

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. Since DOMA was enacted, the American Academy of Pediatrics, the American Psychological Association, the American Academy of Child and Adolescent Psychiatry, the American Medical Association, and the Child Welfare League of America have issued policies opposing restrictions on lesbian and gay parenting because they concluded, based on numerous studies, that children raised by gay and lesbian parents are as likely to...