Take care that the laws be faithfully litigated.

• Author: Rider-Longmaid, Parker
• Position: IV. Applying the New Model to President Obama's Nondefense of DOMA through Conclusion, with footnotes, p. 342-362

IV. APPLYING THE NEW MODEL TO PRESIDENT OBAMA'S NONDEFENSE OF DOMA

I now apply this model--albeit after the fact--to President Obama's decision to instruct the Department of Justice not to defend the Defense of Marriage Act. Note that, while this application requires some consideration of the merits of heightened scrutiny for classifications based on sexual orientation, the two inquiries are not the same. Here, the discussion focuses on the decisionmaking process itself. (240)

At this point, one might again reasonably ask what my five-step model adds to the Dellinger/Johnsen framework. My model demands an extensive inquiry into the merits of both positions--that the statute is constitutional or that it is unconstitutional. The actual contemporaneous rationality standard ensures as much, because it cuts both ways. But it is also slightly less deferential to Congress and the Judiciary than Dellinger's model, which asks primarily how the Court would resolve the issue. Of course, we do not know what the Court will say about DOMA; the result could, but need not, turn on the difference between rational basis review and heightened scrutiny. But my modifications increase the likelihood that, in situations like the decision not to defend DOMA, the President will not merely cursorily state that the act is unconstitutional--as Clinton did when refusing to enforce the HIV provision (241)--but will instead provide substantial guidance to explain the decision to the public, as well as influencing, rather than merely predicting, the Court's outcome.

This democratic demand for transparency is valuable. And, as the following discussion makes clear, in addition to the Holder Letter, the DOJ has provided extensive guidance to the Court and the public that explains why DOMA should be judged under heightened scrutiny and be found unconstitutional on that basis. Finally, my model suggests just how distinct equal protection violations are, and it suggests the importance of looking into and openly addressing the particular constitutional value at issue.

In this Part, I will show that President Obama's decision not to defend DOMA comports with the five-step model proposed above. Obama assessed the suggested criteria and ultimately reached a decision where he is prepared to defer--in the final judgment--to the Judiciary. I first address Obama's consideration of the Take Care Clause and repeal efforts. Then, I discuss how Obama and the DOJ evaluated the constitutionality of the statute and considered Congress's actual contemporaneous rationality, changes in circumstances, whether the law had changed, and the magnitude of the ongoing harm. Finally, I explore how the DOJ has sought--and sought to influence--judicial review--thereby respecting the separation of powers.

1. The Take Care Clause and Repeal Efforts

   President Obama has considered his role and responsibilities under the Take Care Clause. The Holder Letter acknowledges "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 laws constitutionality." (242) First, Attorney General Holder clearly explains that the President has found a middle ground by instructing him to enforce, but not to defend, DOMA. (243) Second, President Obama also supports the Respect for Marriage Act, which would repeal DOMA, (244) and his instrumental efforts in the repeal of the military's "don't ask, don't tell" policy show his support to be more than mere rhetoric. (245) President Obama is thus simultaneously pursuing both nondefense and repeal strategies, while recognizing the reality that, in today's Senate, the filibuster means slim chances of repeal. (246)

2. Evaluating the Statute's Constitutionality

   In this Section, I show that Obama's considerations complied with my modified model. I first analyze whether Obama and the DOJ considered Congress's actual contemporaneous rationality behind DOMA. Then, I address their consideration of changed circumstances and law, as well as the magnitude of the ongoing harm.

   1. Actual Contemporaneous Rationality

      If the Holder Letter is any indication, President Obama took this criterion to its logical conclusion. Holder describes looking to DOMA's legislative history and finding the House Report (247) rife with "moral disapproval of gays and lesbians and their intimate and family relationships--precisely the kind of stereotype-based thinking and animus the Equal Protection Clause is designed to guard against." (248)

      Holder's characterization could not be more accurate: brimming with the language of attack, assault, combat, war, and threats, the House Report literally casts gay men and lesbians as the enemy and leaves little doubt as to the how the Act's name was selected. (249) One of DOMA's two stated purposes "is to defend the institution of traditional heterosexual marriage" because "[t]he prospect of permitting homosexual couples to 'marry' ... threatens to have very real consequences." (250) By its own admission, Congress was reacting to its incomprehension of Romer v. Evans, (251) decided just one month earlier, in which the Court held that a Colorado constitutional amendment (Amendment 2) prohibiting government action designed to protect homosexuals from discrimination violated the Equal Protection Clause (under the rational basis standard) since it "raise[d] the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected." (252) Congress seized on Justice Scalia's rhetoric; he had declared that "[t]he Court ha[d] mistaken a Kuhurkampf for a fit of spite." (253) In the Report, Congress itself declared war against the "orchestrated legal assault being waged" as part of a campaign "on religious, cultural, and legal fronts" to secure gay marriage in the states. (254) The report cast DOMA as "a modest effort to combat" the threat of gay marriage and declared that the time had come "to take sides in this culture war." (255) And as with every war, the doves--here, the bill's detractors--argued that the hawks had no "factual basis" for declaring gay marriage a threat but had instead "use[d] ignorance as an excuse for haste" by failing to hold hearings to investigate the evidence. (256)

      Against this backdrop, Obama and the DOJ asked whether the drafters of the House Report had considered DOMA's constitutionality under the Fifth Amendment's guarantee of equal protection. The answer they found was, only perfunctorily. Unabashedly unable to make sense of Romer, the drafters had nonetheless lambasted the Romer Court for foregoing "even a cursory analysis of the interests Amendment 2 might serve." (257) To Congress, sitting as a supercourt accusing the Supreme Court of sitting as a superlegislature, "it [was] inconceivable how Amendment 2 could fail to meet the rational basis test." (258) "[N]othing, in the Court's recent decision," they concluded, "suggests that the Defense of Marriage Act is constitutionally suspect." (259)

      The drafters proceeded to present the four government interests that DOMA would advance (260) while eliding the notion that the legislative classifications must be rationally related to those interests. (261) What Holder must have seen in the legislative history--and what the drafters, ostensibly, did and could not--was that DOMA was "born of animosity." (262) First, the drafters asserted, the government had an "interest in defending and nurturing the institution of traditional, heterosexual marriage" to promote procreation and child-rearing. (263) Holder dispelled this notion as "unreasonable" against the weight of "numerous studies," (264) and he might also have cited Perry v. Schwarzenegger's extensive findings of fact that children fare no better in straight rather than gay households. (265) Holder again stacked the weight of modern science (266) against the drafters' claim that sexual orientation is mutable. (267)

      Second, the drafters claimed that DOMA "advances the government's interest in defending traditional notions of morality"--"traditional (especially Judeo-Christian) morality." (268) Holder aptly addressed this contention, too, by declaring it "precisely the kind of stereotype-based thinking and animus the Equal Protection Clause is designed to guard against." (269) Justice O'Connor's concurrence in the judgment in Lawrence v. Texas provides additional support for Holder's stance. She explained that "[m]oral disapproval ..., like a bare desire to harm [a] group, is an interest that is insufficient to satisfy rational basis review under the Equal Protection Clause." (270)

      Third, the drafters asserted that DOMA "advances the government's interest in protecting state sovereignty and democratic self-governance" by taking the matter away from the courts. (271) As a logical proposition, this rationale is no better than the one often advanced to support courtstripping, it is both tautological and orthogonal to the rational basis analysis. It asserts, "We have a legitimate interest in this law because we agreed to pass it by majority vote"--a factor wholly irrelevant to (and, indeed, often at odds with) constitutionality.

      Fourth and finally, the drafters asserted that DOMA "advances the government's interest in preserving scarce government resources." (272) Even under the rational basis standard, however, the animus, moral disapproval, and prejudice behind DOMA are clear, so the inquiry becomes not whether saving money is a legitimate end, but whether the discriminatory classification Congress has chosen is a permissible means of tightening the fisc. (273) Finally, the drafters' failure to respond to the dissenting views' due process (274) and heightened scrutiny concerns (275) only reinforces the poverty of their actual contemporaneous constitutional assessment. (276)

   2. Have Circumstances Changed?

      As President, Obama has also been uniquely positioned to...