# Federal Judge moves towards overturning DOMA **URL:** \ **Category:** Great Debates\ **Created:** [January 20, 2011, 4:20am UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294 "2011-01-20T04:20:05Z")\ **Posts on this page:** 20\ **Page:** 8
**Author:** ![Stratocaster](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/stratocaster/32/16393_2.png) [@Stratocaster](https://boards.straightdope.com/u/Stratocaster)\ **Post date:** [February 26, 2011, 6:35pm UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/141 "2011-02-26T18:35:10Z")
> [@John\_Mace](#): > > If you accept the “logic” of suspect classes, and you accept that homosexuality is biological and not a “lifestyle choice”, then yes. The latter issue is going to be the sticking point, IMO. It’s certainly my best understanding that it’s biological, and I doubt you could get many scientists to disagree with that, but I don’t see it as a slam dunk in a court of law. Good point. I am operating under the assumption that homosexuals, similar to heterosexuals like me, don’t choose their orientation. If that’s not accepted by the court, maybe it’s not a slam dunk. Feels like the time is ripe for SCOTUS to shift on this though. > [@DtC](#): > > The Constitution doesn’t have to say anything about homosexuality. They’re covered by “equal protection.” And that’s not just my interpretation, by the way, but the conclusion of Constitutional experts (like Eric Holder and Barack Obama) who are much more qualified than either of us. Diogenes, you are aware, I assume, that EP cases hinge on the level of scrutiny the court determines is appropriate. Endlessly repeating the text of the 14th isn’t an argument, not if the court determines only a rational basis scrutiny is necessary (I obviously don’t agree with that). Eighteen year olds are not allowed to drink, and there’s no 14th amendment concern. Why? Because one could hypothesize a rational basis for the law (an exceedingly easy hurdle) and because the group restricted isn’t a suspect class. You were essentially asked for higher court precedents that, for example, recognized homosexuals as a suspect class. Responding with the text of the 14th amendment doesn’t do the trick. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [February 26, 2011, 6:44pm UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/142 "2011-02-26T18:44:07Z")
Level of scrutiny only comes into it after the rational basis test is met. It isn’t. ---
**Author:** ![Stratocaster](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/stratocaster/32/16393_2.png) [@Stratocaster](https://boards.straightdope.com/u/Stratocaster)\ **Post date:** [February 26, 2011, 7:05pm UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/143 "2011-02-26T19:05:07Z")
> [@ElvisL1ves](#): > > Level of scrutiny only comes into it after the rational basis test is met. > > It isn’t. The rational basis test is exceedingly easy to pass. [From here](http://legal-dictionary.thefreedictionary.com/Rational+Basis+Test) (emphasis added): > [@](#): > > The U.S. Supreme Court has articulated the rational basis test for those cases where a plaintiff alleges that the legislature has made an arbitrary or irrational decision. When a court employs the rational basis test, it usually upholds the constitutionality of the law, because the test gives great deference to the legislative branch. > > A law that touches on a constitutionally protected interest must be rationally related to furthering a legitimate government interest. In applying the rational basis test, courts begin with a strong presumption that the law or policy under review is valid. The Burden of Proof is on the party making the challenge to show that the law or policy is unconstitutional. To meet this burden, the party must demonstrate that the law or policy does not have a rational basis. This is difficult to prove, because a court can usually find some reasonable ground for sustaining the constitutionality of the challenged law or policy. \ > > A person challenging a law on equal protection grounds has a very difficult task. The Supreme Court has used the rational basis standard to practice judicial restraint and to limit its ability to overturn legislation. In areas of social and economic policy, where constitutionally suspect classifications (race, religion, alienage, or national origin) are not at issue, nor are any fundamental constitutional rights at stake, a law must be upheld if there is any “reasonably conceivable state of facts that could provide a rational basis for the classification” (United States Railroad Retirement Bd. v. Fritz, 449 U.S. 166, 101 S. Ct. 453, 66 L. Ed. 2d 368 [1980]). \ > > Thus, the Court stated, a “legislative choice is not subject to courtroom fact-finding and may be based on rational speculation unsupported by evidence or empirical data” (FCC v. Beach Communications). This means that a court is permitted to find a rational basis for a law, even if it is one that was not articulated by the legislature. > > Because of these factors, application of the rational basis test usually results in the upholding of the law. Arguing against a rational basis is generally a non-starter in an EP case. A suspect class (which I think is in play here) is a different story. And “rational basis” does NOT equal “a reason I find compelling or just.” It is a REALLY easy test to pass. The legislature’s case is made for them by the judiciary. If they can speculate a remote societal benefit (and it needn’t be the greatest benefit or optimum result), they defer to the legislature. The legislature doesn’t even need to argue there’s a rational basis. These threads often get derailed by people who argue that the rational basis test isn’t met, when what they really mean is that they think it’s a shitty threshold, and there ought to be a better way to evaluate EP cases. I’m not arguing that the rational basis test is good or bad. But it is what it is, and them’s the rules they apply. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [February 26, 2011, 7:34pm UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/144 "2011-02-26T19:34:41Z")
“This is difficult to prove, because a court can usually find some reasonable ground for sustaining the constitutionality of the challenged law or policy.” Well, what is it? ---
**Author:** ![yorick73](https://avatars.discourse-cdn.com/v4/letter/y/b5a626/32.png) [@yorick73](https://boards.straightdope.com/u/yorick73)\ **Post date:** [February 26, 2011, 8:46pm UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/145 "2011-02-26T20:46:09Z")
> [@Stratocaster](#): > > Arguing against a rational basis is generally a non-starter in an EP case. A suspect class (which I think is in play here) is a different story. And “rational basis” does NOT equal “a reason I find compelling or just.” It is a REALLY easy test to pass. The legislature’s case is made for them by the judiciary. If they can speculate a remote societal benefit (and it needn’t be the greatest benefit or optimum result), they defer to the legislature. The legislature doesn’t even need to argue there’s a rational basis. > > These threads often get derailed by people who argue that the rational basis test isn’t met, when what they really mean is that they think it’s a shitty threshold, and there ought to be a better way to evaluate EP cases. I’m not arguing that the rational basis test is good or bad. But it is what it is, and them’s the rules they apply. At the risk of getting in over my head here, this point was made by the court in the case Holder cited in his letter to Boehner (Lofton v. Secretary of the Dep’t of Children & Family Servs.). In that case the judges noted that all of its sister circuits (4th, 5th,6th, 7th, D.C., Federal., 10th, and two by the 9th Circuit) declined to treat homosexuals as a suspect class…as did the 11th circuit in that case. Note that two of those decisions are from the 9th circuit. Now, the thing I don’t get is Holder seems to be requiring that DoMA be defended under a heightened standard of review. He claims he is unable to meet the criteria that he, not a single circuit court, demands, so he won’t defend the law. Does anybody else see a problem with this? Maybe I’m missing something here but this seems to be nothing more than inventing an excuse not to defend a law that Holder and Obama disagree with. ---
**Author:** ![Lakai](https://avatars.discourse-cdn.com/v4/letter/l/9de0a6/32.png) [@Lakai](https://boards.straightdope.com/u/Lakai)\ **Post date:** [February 26, 2011, 9:30pm UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/146 "2011-02-26T21:30:16Z")
> [@yorick73](#): > > Now, the thing I don’t get is Holder seems to be requiring that DoMA be defended under a heightened standard of review. He claims he is unable to meet the criteria that he, not a single circuit court, demands, so he won’t defend the law. Does anybody else see a problem with this? Maybe I’m missing something here but this seems to be nothing more than inventing an excuse not to defend a law that Holder and Obama disagree with. I’m sure that Obama and Holder actually believe that homosexuals deserve to be treated as a suspect class under the law. That’s a different question from whether they believe there is no rational argument they can make to the 2nd Circuit that homosexuals shouldn’t be treated as a suspect class. In fact, if you read Holder’s letter to Congress, it’s clear that Holder believes that there are rational arguments to be made, but he’s not going to make them because he and the President do not believe any of them are reasonable, and because they both think the law is unconstitutional. Here is the relevant part of the [letter](http://tpmmuckraker.talkingpointsmemo.com/2011/02/obama_doj_say_part_of_doma_is_unconstitutional_will_not_defend_it_in_court.php): > [@](#): > > The Department has a longstanding practice of defending the constitutionality of duly-enacted statutes if reasonable arguments can be made in their defense.\*\* At the same time, the Department in the past has declined to defend statutes despite the availability of professionally responsible arguments, in part because - as here - the Department does not consider every such argument to be a “reasonable” one. \*\*Moreover, the Department has declined to defend a statute in cases, like this one, where the President has concluded that the statute is unconstitutional. Bolding mine. ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [February 26, 2011, 9:33pm UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/147 "2011-02-26T21:33:36Z")
Romer v. Evans was decided on rational basis grounds – and found Colorado’s Amendment II unconstitutional because there were no rational grounds adduced. Now apply the logic of that decision here – what rational basis is there for deeming that legal same-sex marriages are to be treated differe3ntly than all other “public acts, records, and judicial proceedings” of other states. And the “public policy exception” is as much a penumbral concept as the “right to privacy” – perhaps even more so, because the latter is adduced from a group of things the constitution actually does say, while the former is completely invented by judges. ---
**Author:** ![yorick73](https://avatars.discourse-cdn.com/v4/letter/y/b5a626/32.png) [@yorick73](https://boards.straightdope.com/u/yorick73)\ **Post date:** [February 26, 2011, 9:39pm UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/148 "2011-02-26T21:39:38Z")
> [@Marley23](#): > > I don’t agree. The law remains in force, so it’s not being circumvented. The government is no longer sponsoring a defense of the law because the president and the AG have concluded it’s not Constitutional. So now they are in the awkward position of enforcing a law that Justice has deemed unconstitutional. > [@Marley23](#): > > I’m going to have to bite my tongue very hard here. Earlier this decade we got a good idea of what politicizing the Justice Department looks like, and this isn’t it. If you believe that politicizing Justice is bad in one instance then why not another? > [@Marley23](#): > > Their job is law _enforcement_. Their job is also to defend the laws on the books. > [@Marley23](#): > > This is the first time I’ve heard they are supposed to operate from that assumption. That’s surprising. Holder said as much in his letter to Boehner: > [@Eric Holder](#): > > As you know, the Department has a longstanding practice of defending the constitutionality of duly-enacted statutes if reasonable arguments can be made in their defense, a practice that accords the respect appropriately due to a coequal branch of government > [@Marley23](#): > > They have not changed the law and they have not ruled it unconstitutional. Those are the functions of other branches of government. It is their opinion that the law is unconstitutional, and they’re acting accordingly. They’re not doing anyone else’s job. They moved the goalposts in order to circumvent the Legislature, the courts, and the states. They are trying to force the courts to use a more heightened standard of scrutiny. This is in disagreement with 9 circuit courts who have all used the rational basis standard in cases involving gay rights. [/QUOTE] ---
**Author:** ![yorick73](https://avatars.discourse-cdn.com/v4/letter/y/b5a626/32.png) [@yorick73](https://boards.straightdope.com/u/yorick73)\ **Post date:** [February 26, 2011, 9:46pm UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/149 "2011-02-26T21:46:55Z")
> [@Lakai](#): > > I’m sure that Obama and Holder actually believe that homosexuals deserve to be treated as a suspect class under the law. That’s a different question from whether they believe there is no rational argument they can make to the 2nd Circuit that homosexuals shouldn’t be treated as a suspect class. It seems to me the rational argument is that 9 circuit courts have already made the case that homosexuals shouldn’t be treated as a suspect class. It also seems that Holder is insisting that they be treated as a suspect class. From your link: > [@Eric Holder](#): > > As described more fully below, the President and I have concluded that classifications based on sexual orientation warrant heightened scrutiny and that, as applied to same-sex couples legally married under state law, Section 3 of DOMA is unconstitutional. > > Furthermore, pursuant to the President’s instructions, and upon further notification to Congress, I will instruct Department attorneys to advise courts in other pending DOMA litigation of the President’s and my conclusions that a heightened standard should apply, that Section 3 is unconstitutional under that standard and that the Department will cease defense of Section 3. Am I missing something here? ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [February 26, 2011, 9:51pm UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/150 "2011-02-26T21:51:02Z")
Yes, Among other things you’re missing: an articulation of what the said hypothetical “rational basis” might actually _be._ Don’t worry, nobody else has come up with one either. ---
**Author:** ![SmartAlecCat](https://avatars.discourse-cdn.com/v4/letter/s/67e7ee/32.png) [@SmartAlecCat](https://boards.straightdope.com/u/SmartAlecCat)\ **Post date:** [February 26, 2011, 9:51pm UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/151 "2011-02-26T21:51:28Z")
[Misty Irons](http://moremusingson.blogspot.com/2011/02/thoughts-on-doma.html) has some thoughts on this: > [@](#): > > In order to defend such a position, someone has to take the witness stand and explain from the perspective of hard facts and scientific research that gay couples are less stable, less worthy, and less valuable to society than straight couples. You’d have to show that gay couples make worse parents, threaten the fabric of society, endanger religious freedom, or corrupt the nation’s youth. This is not a political rant on a street corner, or a Sunday sermon that quotes a few ripped-out-of-context Bible verses. This is court testimony by an expert witness who must deliver a convincing objective account of the facts of the case, who must stand up to the cross-examination that follows. > […] > Where will you get your witnesses? How will you argue the case? What will this do to people’s professional or political credibility? There just isn’t a good argument to make. You won’t be able to find a credible expert to help your defense.. ---
**Author:** ![Lakai](https://avatars.discourse-cdn.com/v4/letter/l/9de0a6/32.png) [@Lakai](https://boards.straightdope.com/u/Lakai)\ **Post date:** [February 26, 2011, 10:04pm UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/152 "2011-02-26T22:04:51Z")
> [@yorick73](#): > > It seems to me the rational argument is that 9 circuit courts have already made the case that homosexuals shouldn’t be treated as a suspect class. It also seems that Holder is insisting that they be treated as a suspect class. From your link: > > Am I missing something here? You’re assuming Holder thinks there is no rational argument that can be made. He never uses the word rational in his letter, and doesn’t imply that he thinks no rational argument can be made. Read what he said again: > [@](#): > > At the same time, the Department in the past has declined to defend statutes despite the availability of professionally responsible arguments, in part because - as here - the Department does not consider every such argument to be a “reasonable” one. He makes a distinction between “professionally responsible” arguments and “reasonable” arguments. Just because other Circuit Courts have a different view on the matter doesn’t mean Holder should think their arguments are reasonable. What he means by “reasonable” isn’t clear. But it appears that it doesn’t cover arguments for which there is binding precedent. But since there is no binding precedent on whether homosexuals are a suspect class in the 2nd Circuit and Holder doesn’t consider all the other arguments in defense of the law reasonable (despite their approval in sister courts), Holder believes the DOJ should not defend the law. ---
**Author:** ![yorick73](https://avatars.discourse-cdn.com/v4/letter/y/b5a626/32.png) [@yorick73](https://boards.straightdope.com/u/yorick73)\ **Post date:** [February 26, 2011, 10:06pm UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/153 "2011-02-26T22:06:19Z")
> [@ElvisL1ves](#): > > Yes, Among other things you’re missing: an articulation of what the said hypothetical “rational basis” might actually _be._ > > Don’t worry, nobody else has come up with one either. From what I read Justice does not need to give any basis. The party attacking the law must “negative every conceivable basis which might support it, whether or not the basis has a foundation in the record.” That is from Lofton v. Secretary of the Dep’t of Children & Family Servs. Sounds like a tough hurdle. ---
**Author:** ![Captain\_Amazing](https://avatars.discourse-cdn.com/v4/letter/c/6de8d8/32.png) [@Captain\_Amazing](https://boards.straightdope.com/u/Captain_Amazing)\ **Post date:** [February 26, 2011, 10:09pm UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/154 "2011-02-26T22:09:56Z")
> [@yorick73](#): > > You are fully aware that very few cases are that clear-cut. I don’t think any of the lower court rulings have found DOMA to be unconstitutional. I seriously doubt that there is no Constitutional defense. Gill v OPM and Mass. v US Department of Health and Human Services did (those are the ones the feds are appealing). The ones the feds aren’t defending are two later ones…Pederson v OPM and Windsor v US. Those are the two cases the feds announced they weren’t going to try to defend. ---
**Author:** ![yorick73](https://avatars.discourse-cdn.com/v4/letter/y/b5a626/32.png) [@yorick73](https://boards.straightdope.com/u/yorick73)\ **Post date:** [February 26, 2011, 10:16pm UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/155 "2011-02-26T22:16:46Z")
> [@Lakai](#): > > You’re assuming Holder thinks there is no rational argument that can be made. He never uses the word rational in his letter, and doesn’t imply that he thinks no rational argument can be made. > > Read what he said again: > > He makes a distinction between “professionally responsible” arguments and “reasonable” arguments. Just because other Circuit Courts have a different view on the matter doesn’t mean Holder should think their arguments are reasonable. > > What he means by “reasonable” isn’t clear. But it appears that it doesn’t cover arguments for which there is binding precedent. But since there is no binding precedent on whether homosexuals are a suspect class in the 2nd Circuit and Holder doesn’t consider all the other arguments in defense of the law reasonable (despite their approval in sister courts), Holder believes the DOJ should not defend the law. Okay…I think I get your point. This all seems deliberately murky. Of course I am no lawyer and this may very well be common practice. It just seems to me they are looking for any reason not to defend the law. ---
**Author:** ![Diogenes\_the\_Cynic](https://avatars.discourse-cdn.com/v4/letter/d/e99b99/32.png) [@Diogenes\_the\_Cynic](https://boards.straightdope.com/u/Diogenes_the_Cynic)\ **Post date:** [February 26, 2011, 10:30pm UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/156 "2011-02-26T22:30:05Z")
They have concluded that they _can’t_ reasonably defend the law. Trying to do so would be unethical and a waste of taxpayer resources. ---
**Author:** ![Stratocaster](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/stratocaster/32/16393_2.png) [@Stratocaster](https://boards.straightdope.com/u/Stratocaster)\ **Post date:** [February 26, 2011, 10:30pm UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/157 "2011-02-26T22:30:44Z")
> [@yorick73](#): > > From what I read Justice does not need to give any basis. The party attacking the law must “negative every conceivable basis which might support it, whether or not the basis has a foundation in the record.” That is from Lofton v. Secretary of the Dep’t of Children & Family Servs. > > Sounds like a tough hurdle. Yes, that’s right. That’s not to say that SCOTUS couldn’t possibly rule this unconstitutional on a rational test basis, but if they do, that’s the exception, not the rule. I think that’s the wrong basis. I think homosexuals are a suspect class, and DOMA consequently subject to a higher level of scrutiny. So does [Obama and the AG](http://www.ohioverticals.com/blogs/akron_law_cafe/2011/02/attorney-general-letter-on-doma/): > [@](#): > > The administration is simply saying that it will not make arguments defending the law unless the courts find that rational basis is the appropriate standard of review. The operative paragraph of the letter states: > > If asked by the district courts in the Second Circuit for the position of the United States in the event those courts determine that the applicable standard is rational basis, the Department will state that, consistent with the position it has taken in prior cases, a reasonable argument for Section 3’s constitutionality may be proffered under that permissive standard. Elvis, maybe you should give President Obama and the AG a call if you’re truly interested in a basis for how this law passes the rational basis test, since it seems to be a given for them. Again, it is an _exceedingly_ permissive standard. SmartAlecCat, Misty Irons has crafted a straw man, since there is no such need to mount ANY defense of a law’s rational basis, let alone getting over the hurdle she has created. If SCOTUS does go the rational basis route, DOMA’s constitutionality will be MUCH easier to establish. Again, I believe such a ruling would be contradictory to their own protocols. ETA: Diogenes, read the link. You’re wrong. ---
**Author:** ![Diogenes\_the\_Cynic](https://avatars.discourse-cdn.com/v4/letter/d/e99b99/32.png) [@Diogenes\_the\_Cynic](https://boards.straightdope.com/u/Diogenes_the_Cynic)\ **Post date:** [February 26, 2011, 10:40pm UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/158 "2011-02-26T22:40:54Z")
Read what link? ---
**Author:** ![Stratocaster](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/stratocaster/32/16393_2.png) [@Stratocaster](https://boards.straightdope.com/u/Stratocaster)\ **Post date:** [February 26, 2011, 10:44pm UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/159 "2011-02-26T22:44:03Z")
The one I just provided, or the actual AG letter. Or the excerpt I provided in my last post. They are NOT asserting that they can’t reasonably defend the law. Quite the contrary–if the courts decide this is to be decided on a rational basis, they WILL defend the law. Why? Because they believe it meets that standard. ---
**Author:** ![Diogenes\_the\_Cynic](https://avatars.discourse-cdn.com/v4/letter/d/e99b99/32.png) [@Diogenes\_the\_Cynic](https://boards.straightdope.com/u/Diogenes_the_Cynic)\ **Post date:** [February 26, 2011, 10:50pm UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/160 "2011-02-26T22:50:34Z")
Got it. Interesting. [Previous page](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294.md?page=7) [Next page](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294.md?page=9)