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20 October 2011

Repudiation: Speaker Boehner's Defense of DOMA

The Defense of Marriage Act (DOMA) was enacted under President Clinton in 1996, making the federal definition of marriage a union of one man and one woman.  DOMA further stipulated that if a marriage between two persons of the same sex is legal in a particular state, territory, or possession of the United States, that marriage need not be recognized by any other state, territory, or possession.

In February of this year, President Obama stated that DOMA is not constitutional and that his administration will no longer defend DOMA in court.  In March, in response, Speaker of the House John Boehner said that if the President would not defend DOMA, the House of Representatives would.  On 14 October 2011, Mr. Boehner's legal team filed their motion with the United States District Court in San FranciscoThe Huffington Post has a pdf of the filing on line.

While neither am I an attorney nor have I ever taught law, I would nonetheless respond to salient points of the filling.  Please leave a comment if you feel I have made errors in my analysis.  The initial quotes are from page 10 of the filing.

The question presented in this case is whether Congress may define “marriage” for purposes of federal benefits and burdens as that term was commonly understood for more than 200 years—from the Nation’s founding through at least the close of the twentieth century—or whether Congress was constitutionally obligated to accept a redefinition by some states that would encompass a form of marriage first legalized in the U.S. in 2004.  The Defense of Marriage Act (“DOMA”) defines marriage for purposes of federal law as the legal union of one man and one woman.

Among the enumerated powers in Article One of the United States Constitution, there is no mention of marriage.  There is no mention of social contracts or of regulation of religious rites (marriage often being cited as a religious rite) or of civil unions.  DOMA is unusual in that it can be viewed as the federal government stepping into what had traditionally been entirely handled by the states.  Yes, same-sex marriage is a change from the traditional American view of marriage, but until DOMA not something that had been under federal law.

Plaintiff’s contention that DOMA should be subject to heightened scrutiny fails. First, circuit precedent establishes that the proper test under which sexual orientation classifications, like DOMA, should be analyzed is the rational basis test. Second, even if this Court were writing on a clean slate, sexual orientation does not constitute a suspect or quasi-suspect class under the traditional factors used to determine such classes. Homosexuality is not immutable as that term has been used in constitutional analysis. Moreover, homosexuals are far from politically powerless. In fact, their significant political progress in recent months and years belies their numbers. DOMA also does not discriminate on the basis of sex nor does it implicate a fundamental right. Therefore, rational basis scrutiny applies to DOMA.

Suspect classification is a way of saying that a group is subject to discrimination and deserves more careful scrutiny by the courts.  The arguments are that homosexual are not due suspect classification because (a) homosexuality is not immutable, (b) homosexuals have political power, (c) DOMA's discrimination is not based on gender, and (d) marriage is not a fundamental right.

There is an excellent legal opinion of all of these factors based on the fight over Prop 8 at the Ninth.

(a)  This is not true.  According to the American Academy of Pediatrics, individuals no more choose to be homosexual than heterosexual.

(b)  This is not true.  If the LGBTQ community had such power, DOMA would never have been passed in the first place.  It is the case that people's attitudes towards gays and lesbians have shifted such that there is much more acceptance today than there was a few years ago.  Still, we have few acknowledged gays and lesbians in government; even fewer bi or trans.

(c)  Correct.  DOMA discriminates based on sexual orientation, not based on gender.

(d)  This is not true.  The Supreme Court of the United States (SCOTUS) found marriage to be a fundamental right in the case of Loving v. Virginia, the landmark case that ended marriage discrimination for couples of different "races".

DOMA easily passes the rational basis test. There are a myriad of rational bases supporting DOMA. For example, the federal government has a valid interest in a uniform federal definition of marriage for federal law purposes, Congress was justified in acting with caution when facing the unknown consequences of a novel redefinition of marriage and Congress rationally could conclude that DOMA would advance responsible procreation and child-bearing. Accordingly, this Court should deny Plaintiff’s motion for summary judgment.

I agree that there is a valid interest in having a uniform definition of marriage.  That definition should not be as narrowly constructed as it is in DOMA.

I will also agree that some caution was warranted when the first state law was enacted granting marriage equality, but DOMA was an overreaction.

Making the leap from marriage to procreation and child-bearing is not necessary.  Heterosexual marriage does not always lead to procreation and child-bearing.  In fact, elderly heterosexuals, people well beyond the age of fertility, are allow to wed.  Heterosexual marriage is not and has not been limited to those who are likely to have children.

Some of the arguments on later pages are worth our attention.  On page 16, the filing discusses the history of discrimination of gays and lesbians.

Plaintiff first argues that DOMA is subject to strict scrutiny because lesbians and gay men have been subject to a history of discrimination. While the House does not dispute that homosexuals have been subject to discrimination, it is important to note that even Plaintiff’s own expert has admitted that “[a]lthough . . . antigay discrimination is popularly thought to have ancient roots, in fact it is a unique and relatively short-lived product of the twentieth century.” George A. Chauncey, Why Marriage? The History Shaping Today’s Debate Over Gay Equality 14 (2004). According to Dr. Chauncey, “most of [the discrimination] was put in place between the 1920s and 1950s, and most [was] dismantled between the 1960s and the 1990s.” Owen Keehnen, The Case for Gay Marriage: Talking with Why Marriage? Author George Chauncey, (2004),

Plaintiff’s expert agrees with the Supreme Court’s observation in Lawrence that the relatively short history of anti-gay discrimination is a consequence of the fact that homosexuality—as a distinct  category or class—was not even recognized in the United States until the late nineteenth century. 539 U.S. at 568-69 (relying on scholarly position that “the concept of the homosexual as a distinct category of person did not emerge until the late 19th century”); George A. Chauncey Decl. ¶¶ 10, 20-21, June 24, 2011, ECF No. 134, (“Chauncey Decl.”); George A. Chauncey, Ph.D., Dep. 48:24-51:24, July 12, 2011, (“Chauncey Dep.”), attached as Exhibit A to Declaration of Conor B. Dugan (“Dugan Decl.”), filed herewith.

This is a strange argument.  They are claiming that the concept of gays and anti-gay discrimination begins in the nineteenth or twentieth century.  The argument that Dr. Chauncey was making was that laws institutionalizing anti-gay discrimination were made beginning in the 1920s, not that such discrimination did not exist outside of the law prior to that time.  They are also claiming that the modern terminology for gays and lesbians and the concept of a homosexual community did not arise until the late 1800s.  Thus, they find a short history to discrimination.

It is a strange argument because those who seek anti-equality laws are usually doing so on the basis of biblical laws, laws dating back between two and five thousand years.  Arguing that the history of modern institutionalization of discrimination is brief so it is not important seems very strange.

The next argument, from page 17, is based on the ability to participate in or contribute to society.

Plaintiff next argues that DOMA does not “rest[] on ‘meaningful considerations,’” but rather “target[s] a characteristic that ‘bears no relation to ability to perform or contribute to society.’” Pl.’s Mem. Summ. J. at 6 (quoting City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440-41 (1985)). That is not the case. The Congress that enacted DOMA, and President Clinton who signed it, obviously thought that defining marriage in the way it has traditionally been defined was relevant and rationally related to several legitimate legislative goals. See also House Mem. Mot. Dismiss at 22-29.

Sorry, but claiming that people thought about it does not change the fact that one's sexual orientation should not bear on one's opportunities.  Gays and lesbians are individually as capable of any employment as are straights.  Gays and lesbians are individually as creative in the sciences and the arts as are straights.  A look at those being honored this month by sites like LGBT History Month make this very apparent.

On page 17, the filing returns to the topic of immutability of sexuality.

Plaintiff also states that the House cannot “argue there is a triable issue of fact regarding the immutable nature of sexual orientation, given Ninth Circuit authority already addressing this point.” Pl.’s Mem. Summ. J. at 7. But the Ninth Circuit has said conflicting things on immutability. In assessing whether homosexuality constitutes a suspect class the Ninth Circuit has held specifically that it is not an immutable characteristic: “Homosexuality is not an immutable characteristic; it is behavioral and hence is fundamentally different from traits such as race, gender, or alienage, which define already existing suspect and quasi-suspect classes.” High Tech Gays, 895 F.2d at 573.4 It is true that in Hernandez-Montiel v. INS, 225 F.3d 1084, 1093 (9th Cir. 2000), overruled in part on other grounds, Thomas v. Gonzales, 409 F.3d 1177 (9th Cir. 2005), the Ninth Circuit described sexual orientation as immutable. But the court was not addressing the question whether heightened scrutiny applied. And, even if Hernandez-Montiel had addressed the relevant question, one panel of the Ninth Circuit cannot overrule another one, and absent en banc review, the earlier precedent controls. See Newdow v. Lefevre, 598 F.3d 638, 644 (9th Cir. 2010), cert. denied, 131 S. Ct. 1612 (U.S. 2011) (quoting Robbins v. Carey, 481 F.3d 1143, 1149 n.3 (9th Cir. 2007)) (“As a general rule, we, as a three-judge panel, are without authority to ‘overrule a circuit precedent; that power is reserved to the circuit court sitting en banc.’”).

The argument in this paragraph is that the Ninth Court has issued different verdicts regarding whether homosexuality is an immutable characteristic.  As such, they are choosing the ruling that sexuality is a choice.

Plaintiff further contends that “[t]his understanding conforms with the settled consensus of the major professional psychological and mental health organizations.” Pl.’s Mem. Summ. J. at 7. Whether a classification is “immutable” for purposes of equal protection jurisprudence is of course a legal conclusion—not a scientific one—and Plaintiff’s selective reading of scientific evidence warrants no deference from this Court.

The medical understanding is clear.  Sexuality is immutable.  The filing argues that this needs to be a legal decision, not a scientific decision.

Plaintiff’s claims also run headlong into the differing definitions of the terms “sexual orientation,” “homosexual,” “gay,” and “lesbian” supplied by her own experts. See Letitia Anne Peplau, Ph.D., Dep. 11:19-13:3, June 17, 2011, (“Peplau Dep.”), attached as Exhibit B to Dugan Decl. (declining to use term homosexuality and defining terms “sexual orientation,” “gay,” and “lesbian”); Gary M. Segura, Ph.D., Dep. 14:17-16:15, July 8, 2011 (“Segura Dep.”), attached as Ex. C to Dugan Decl. (defining terms “gay,” “lesbian,” and “homosexual”); Chauncey Dep. 12:15-15:15 (acknowledging that some people distinguish “gay” and “homosexual,” but stating that he uses them synonymously; defining terms “gay,” “lesbian,” “homosexuality,” and “homosociality”); see also Lisa M. Diamond, New Paradigms for Research on Heterosexual & Sexual-Minority Development, 32 J. of Clinical Child & Adolescent Psychol. 490, 492 (2003) (“There is currently no scientific or popular consensus on the exact constellation of experiences that definitively ‘qualify’ an individual as lesbian, gay, or bisexual.”); Gay Histories and Cultures: An Encyclopedia 452 (George E. Haggerty ed., 2000) (“[T]he single word homosexuality has come to condense a variety of mutually conflicting ideas about same-sex sexual attraction and an assortment of conceptual models for understanding it . . . . [I]t is less useful to insist on any one definition of homosexuality than it is to describe and to account for the conceptual incoherence that now has become inseparable from both the term and the category.”). These differing definitions show that these terms are amorphous and do not adequately describe a particular class.

Here, the filing argues that because there are multiple definitions for homosexuality, it does not define a group for designation as a suspect class.  The problem with this argument is that sexuality, according to some of the earliest research, exists on a spectrum.  As such, a single definition does not make sense.  That does not change the fact that there is an LGBTQ community that is the subject of regular discrimination, including institutionalized discrimination as is the case with DOMA.

Plaintiff’s argument also conflicts with her own expert’s admission that homosexuality cannot be determined at birth, see Peplau Dep. 25:21-23 (“[L]ooking at a newborn, I would not be able to tell you what that child’s sexual orientation is going to be.”), and that a significant percentage of gays and lesbians believe they exercised some or a great deal of choice in determining their sexuality, id. 36:24-37:24. Plaintiff’s own evidence indicates that more than 12% of self-identified gay men and nearly one out of three lesbians reported that they experienced some or much choice about their sexual orientation. Peplau Dep. Ex. 4 at 186. This contrasts with actual suspect classes, which  involve “immutable characteristic[s]” determinable at birth and “determined solely by the accident  of birth.” Frontiero, 411 U.S. at 686 (plurality).

The filing is arguing, again, that homosexuality is not immutable, this time because there is no evidence of a gay gene.  Here is the reference again to the 1993 paper by the American Academy of Pediatrics.

Moreover, according to multiple studies, a not insignificant number of persons experience fluidity in their sexual attraction and even label their sexuality differently at different times. See, e.g., Lisa M. Diamond & Ritch C. Savin-Williams, Explaining Diversity in the Development of Same-Sex Sexuality Among Young Women, 56 J. of Soc. Issues 297, 301 (2000) (“50% of the respondents had changed their identity label more than once since first relinquishing their heterosexual identity”); see also id. at 300 (“[E]xclusive same-sex attractions are the exception rather than the norm among sexual minority women.”); id. at 300-01 (“The prevalence of nonexclusivity in sexual-minority women’s attractions suggests that other-sex attractions and relationships remain an ever-present possibility for most sexual-minority women, a fact that creates multiple opportunities for discontinuity and inconsistency in the female sexual minority life course.”); id. at 302 (“One of the unavoidable implications of nonexclusivity and sexual fluidity is that no heterosexual woman can be unequivocally assured that she will never desire same-sex contact, just as no lesbian woman can be unequivocally assured that she will never desire other-sex contact.”);5 Nigel Dickson et al., Same Sex Attraction in a Birth Cohort: Prevalence and Persistence in Early Adulthood, 56 Soc. Sci. & Med. 1607, 1611-12 (2003). Even Plaintiff’s own expert discusses and recognizes the concept of sexual plasticity and fluidity—that “individuals have reported changes in their sexual orientation in  midlife.” Letitia Ann Peplau, Ph.D., Decl. ¶ 23, June 24, 2011, ECF No. 137 (“Peplau Decl.”).

Still on the argument that homosexuality is not immutable, this time because young people sometimes experiment with different types of sexuality.  It is even more complicated because of the concept of a sexual spectrum.  This does nothing to decrease the fact that people do not choose their sexuality (although some may choose alternate behaviors from their nature).  The discrimination remains quite real.

On page 21, the filing considers whether the LGBTQ community has political power.

More than twenty years ago, the Ninth Circuit in analyzing whether homosexuals were entitled to heightened scrutiny held that “homosexuals are not without political power; they have the ability to and do ‘attract the attention of lawmakers.’” High Tech Gays, 895 F.2d at 574 (quoting City of Cleburne, 473 U.S. at 445).6 That political clout has only increased, and dramatically, in the ensuing two decades. Despite this binding precedent, Plaintiff cites to the dissent from the denial of rehearing en banc in that case to argue that the House and the Ninth Circuit “approached the inquiry” into political powerlessness incorrectly by considering the question of absolute political powerlessness rather than relative political powerlessness. Pl.’s Mem. Summ. J. at 8. This misconstrues the House’s argument which, to put it clearly and succinctly, is that homosexuals have a great deal of political power – especially relative to other political constituencies.

Plaintiff’s claim to the contrary is particularly difficult to understand in light of recent political, legal, and cultural events that have occurred since High Tech Gays was decided twentyone years ago. Plaintiff cannot maintain that she is a member of a class that faces “discrimination [that] is unlikely to be soon rectified by legislative means.” City of Cleburne, 473 U.S. at 440. Given that the Ninth  Circuit has just finished wrestling with the consequences of the repeal of “Don’t Ask Don’t Tell,” Plaintiff should not be heard to contend that such issues cannot be rectified through the legislative process. Log Cabin Republicans v. United States, Nos. 10–56634, 10–56813, 2011 WL 4494225 (9th Cir. Sept. 29, 2011). Moreover, Plaintiff appears oblivious to the irony of maintaining that homosexuals have limited political power in a case in which her position is supported by the Department of Justice at the insistence of the President. In light of the Department’s longstanding duty to defend the constitutionality of federal statutes, its decision to decline to defend the constitutionality of DOMA—notwithstanding its acknowledgment that reasonable arguments can be advanced in defense of Section 3, that it survives rational basis review, and that eleven Circuit Courts of Appeal, including the Ninth, disagree with its conclusion that heightened scrutiny applies—and instead adopt the very position advocated by Plaintiff, is particularly telling. See Letter from Eric H. Holder, Jr., Att’y Gen., to John A. Boehner, Speaker, U.S. House of Representatives, at 3 (Feb. 23, 2011), ECF No. 93-1. Indeed, President Obama’s decision came after he received a letter from the Human Rights Campaign criticizing his Administration’s defense of DOMA. See Segura Dep. Ex. 5. And the Human Rights Campaign rightly believed that it had helped persuade the President to change his mind. See Press Release, Victory! Administration Drops DOMA Defense, Human Rights Campaign, (“HRC supporters have written tens of thousands of letters to President Obama” and it is “time to thank the president for what he’s done.”).

A spate of recent news stories only confirms the conclusion that homosexuals are far from politically powerless. A recent poll showed that more than two-thirds of Americans would vote for a “well-qualified gay candidate for president if he or she were nominated by their party.”7 In the past several months alone, the first openly gay male federal judge was confirmed by an overwhelming majority of the Senate; 8 President Obama nominated his fourth openly-gay candidate for a U.S. District Court judgeship; 9 Rhode Island passed a bill instituting civil unions for same-sex couples; 10 New York passed a law legalizing gay marriage over the opposition of the New York Catholic Conference and other groups; 11 President Obama took the final step in repealing the “Don’t Ask, Don’t Tell” policy; 12 President Obama announced his support of a Senate bill to repeal DOMA;13 and, several weeks ago, it was reported that the “Obama administration has all but officially recognized gay partnerships as the legal equivalent of marriage, gradually redefining the concept  through a series of changes to regulations governing benefits for federal employees.”14 Accordingly, gays and lesbians cannot be labeled “politically powerless” without draining that phrase of all meaning.

This continues in the same vein for three more pages.  Because there are individual instances of gay victories, the LGBTQ community has political power.  That does not square with the majority of states that deny marriage equality, thirty of them with constitutional amendments.  That does not square with the twenty-nine states that allow for employment discrimination based on sexual orientation.

There is a lot more in the thirty-six page filing, but no arguments that I have not already addressed.  Again, if you think that I have made a mistake or missed an important point, please leave a comment or send me an e-mail.

Let's not forget, this defense of DOMA is all at a cost of up to $1,500,000.00 for taxpayers.

24 October 2011, FollowUp 1


  1. I would have to disagree that DOMA violates the enumerated powers of Congress under Article I. While it is true marriage is not specifically mentioned in Article I this is simply not necessary. The constitution expressly gives congress the power to pass laws which are necessary and proper for executing the other enumerated powers of congress.

    In McCulloch v. Maryland, the Supreme Court interpreted the necessary and proper power to act to expand each enumerated power so that congress can legislate in a manner which is itself not within the enumerated powers if such legislation facilitates an enumerated power. In short, as long as Congress is acting to achieve an enumerated end, it can legislate on issues not specifically listed as areas of legislative power in the Constitution.

    Applying this to DOMA, we can see that Section 3 only defines marriage for the purposes of federal law. The law does not reach into the body of state law to prohibit states from allowing same-sex couples from marrying. In effect, DOMA reaches into every federal law which references marriage to define that term to mean only marraige between people of the opposite sex. In many ways the question of the power to pass DOMA must be made in reference to the law which is being modified in any given case. If Congress possesses the power to pass the underlying law, then it is likely the necessary and proper clause expands that power to grant congress the power to pass DOMA.

    While Congress may still be forbidden from passing DOMA on equal protection grounds, it is erroneous to conclude that Congress does not possess the power to pass DOMA simply because marriage is not included in the enumerated powers of Article I, Sec. 8.

  2. Welcome, boy wonder. Good argument against my Article 1 contention. You may well be correct.


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