Liberally Distorting Constitutional Law and Presidential Independence

No one part can be more powerful than any other is./ Each controls the other you see, and that's what we call checks and balances.

UCLA Law Professor Adam Winkler has published a piece in the Huffington Post (here) arguing that President Obama’s decision not to defend Section 3 of the Defense of Marriage Act (DOMA) in two cases filed in federal courts in New York and Connecticut “should be condemned.”   In making his arguments, Winkler, generally regarded as a “liberal” law professor, distorts presidential positions and constitutional equal protection law and so unfairly criticizes the President (of whom I have been far from a knee-jerk defender).

DOMA Section 3 defines marriage as a union of one man and one woman for most federal law purposes.  As I recently explained (here) on CruzLines, President Obama and Attorney General Holder have concluded that under the Constitution’s guarantees of equal protection of the laws, government laws or actions that discriminate on the basis of sexual orientation should be subjected to heightened scrutiny (making it harder to defend their constitutionality), not the extremely deferential “rational basis review.”  They further concluded that Section 3 fails that kind of careful analysis insofar as it applies to deny federal benefits or obligations to legally married same-sex couples.  Accordingly, the President determined that the Department of Justice (DOJ) will not defend Section 3 in courts where precedent does not reject the proposition that heightened scrutiny is the right standard for assessing the constitutionality of sexual orientation discrimination.   The Second Circuit in the federal appellate court system has not decided what the right standard is, so the Obama administration will not be defending Section 3 in cases there, such as the New York and Connecticut ones.

Winkler argues against Obama’s decision on the ground that it breaks new ground – according to him, “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” – and “sets a terrible precedent” that could lead to conservative or right-wing Presidents (my characterization – he invokes the implausible notion of “a President Palin”) refusing to defend laws that liberals presumably like (again, my characterization – he offers “the landmark healthcare reform law” as his illustration).

Yet it is simply wrong to claim that Presidents have maintained that they have an inexorable duty to defend “all federal laws.” As a DOJ letter (here – thanks to Orin Kerr for posting a link on the Volokh Conspiracy) to Sen. Hatch detailed, there have been frequent occasions when the President has decided not to defend a federal law that he has concluded is unconstitutional.

So the real question is, not should we “condemn” the President for choosing not to defend a federal law, but is Section 3 of DOMA the sort of law that it is proper for him to choose not to defend (in certain circumstances)?  Winkler thinks not, seemingly because he thinks Obama’s view of equal protection conflicts with the Supreme Court’s view.  To be fair one statement in Winkler’s piece more modestly suggests not an actual conflict but only that the President’s and the Attorney General’s “interpretation of the Constitution [has] little support in Supreme Court doctrine.”  But elsewhere he clearly says the Court has rejected the view Obama and Holder have taken.  This is a mistake, but it is not the only mistake that Winkler makes.

According to Winkler, “twice the Supreme Court has rejected [the] argument” that “discrimination against gay people warrants heightened scrutiny.”   He does not name the occasions, but presumably he is referring to the Supreme Court’s 1996 decision in Romer v. Evans, where it held that Colorado’s anti-lesbigay Amendment 2 to its state constitution violated the Constitution’s Equal Protection Clause, and (perhaps) the Court’s 2003 decision in Lawrence v. Texas, where it held that Texas’s law criminalizing oral and anal sex between persons of the same-sex violated the Due Process Clause.  In both cases the people challenging the discriminatory laws did argue that heightened equal protection scrutiny was proper for sexual orientation discrimination.

But in neither case did the Court “reject” the argument, and so Winkler is wrong to suggest that rational-basis-review-only “[i]s the law of the land.”   Romer held that Colorado’s law could not pass “even” the easiest test, rational basis review.  The Court therefore did not need to decide whether a more stringent test is warranted. Nor did Romer expressly consider and reject heightened scrutiny, something the Court has done in 1985 with respect to discrimination on the basis of mental retardation in Cleburne v. Cleburne Living Center.  And in Lawrence, the Court did not even take a position on the equal protection argument at all (other than to characterize it as “tenable”), instead ruling on the ground that the criminal “sodomy” law deprived people of liberty without due process of law.   The appropriate level of scrutiny for courts to use in deciding equal protection questions where government discriminates on the basis of sexual orientation is thus an open question as far as our highest court is concerned.

But it is not a question regarding whose answer we have no clues.  Supreme Court precedent does provide various factors that may be considered in determining whether a particular form of discrimination merits heightened scrutiny, factors such as a history of discrimination against a group or the lack of connection between a trait and a person’s ability to contribute to society.  These are precisely the factors on which Holder’s and Obama’s analysis expressly relied.   (The vast weight of constitutional scholarship also supports the conclusion that heightened scrutiny is proper for sexual orientation discrimination.)  So, contrary to Winkler’s distorted picture, these leaders have indeed been faithful to the Supreme Court’s decisions, and their view has much more than "little support" in current doctrine.  They were applying constitutional law, not simply refusing to defend a statute because on policy grounds Obama didn’t “agree with” Section 3 of DOMA, in Winkler’s uncharitable and misleading characterization.

Moreover, Winkler further leads readers astray in suggesting that what Obama has done with respect to DOMA provides a precedent for it taking merely “a presidential announcement to repeal … vital and important federal laws.”  President Obama’s announcement expressly affirms that he is continuing to enforce Section 3 of DOMA.  He is not simply not making legal arguments in defense of a discriminatory law that he has quite reasonably concluded is unconstitutional.  This is in no way a violation of his constitutional obligation to “take Care that the Laws be faithfully executed."  The Constitution is the supreme law of the land, not whatever prejudiced measures a particular Congress might happen to enact.

Finally, even if the Supreme Court had held that sexual orientation discrimination is constitutional if it survives rational basis review, and/or even if Obama had determined to have the executive branch stop enforcing Section 3 of DOMA, it is far from obvious that right-thinking people should “condemn” Obama for his actions, or that we should think this a horrible unbalancing of powers in our system of federal government.  Winkler appears to place greatest faith in the Supreme Court, but as I and most of my constitutional law students see it every year, that degree of faith is misplaced. Dred Scott, Plessy v. Ferguson, Korematsu v. United States, and Bowers v. Hardwick should give pause.  While I do not necessarily approve of everything that President Lincoln said or did, I believe we would do well to take to heart the words of Thomas Jefferson that Lincoln quoted in defending his views about the (il)legitimacy of Dred Scott:

"You seem … to consider the judges as the ultimate arbiters of all constitutional questions – a very dangerous doctrine indeed and one which would place us under the despotism of an oligarchy. Our judges see as honest as other men, and not more so. … The constitution … has more wisely made all the departments co-equal and co-sovereign within themselves."

[edited 20121207 to add italics to case name]