Friday, February 25, 2011


Good News!!

After an unnecessarily lengthy and frustrating battle over Don't Ask, Don't Tell, news that the Justice Department would no longer defend the Defense of Marriage Act [DOMA] against legal challenges is more than welcome.  DOMA forbids the federal government from recognizing gay and lesbian couples for the purpose of health and other benefits.  This law impacts upward of 1100 federal benefits programs in which marriage is an issue, including in those states which have allowed same sex marriage. 

Justice apparently decided that DOMA violates the equal protection clause of the constitution because of its blatant discrimination against same sex couples without "an important government objective." 

DOMA, by the way, was signed into effect by President Bill Clinton in 1996.  I have to admit I don't remember this tragic event, but I wonder upon what transactional alter Clinton sacrificed our gay and lesbian friends.

I want to thank U.S. Attorney General Eric Holder, who delivered this good turn of events by way of a letter to Speaker John Boehner outlining the reasons DOMA is unconstitutional.   I sure wish I could have seen Boehner's face when he opened his mail.

For my legal beagle friends, the full copy of  Holder's legal opinion letter is below, courtesy of  For the rest of you, there's a decent Bloomberg article giving the background and impact if you click this sentence.

The Honorable John A. Boehner

U.S. House of Representatives
Washington, DC 20515

Re: Defense of Marriage Act

Dear Mr. Speaker:

After careful consideration, including review of a recommendation from me, the President of the United States has made the determination that Section 3 of the Defense of Marriage Act (“DOMA”), 1 U.S.C. § 7, as applied to same-sex couples who are legally married under state law, violates the equal protection component of the Fifth Amendment. Pursuant to 28 U.S.C. § 530D, I am writing to advise you of the Executive Branch’s determination and to inform you of the steps the Department will take in two pending DOMA cases to implement that determination.

While the Department has previously defended DOMA against legal challenges involving legally married same-sex couples, recent lawsuits that challenge the constitutionality of DOMA Section 3 have caused the President and the Department to conduct a new examination of the defense of this provision. In particular, in November 2010, plaintiffs filed two new lawsuits challenging the constitutionality of Section 3 of DOMA in jurisdictions without precedent on whether sexual-orientation classifications are subject to rational basis review or whether they must satisfy some form of heightened scrutiny. Windsor v. United States, No. 1:10-cv-8435 (S.D.N.Y.); Pedersen v. OPM, No. 3:10-cv-1750 (D. Conn.). Previously, the Administration has defended Section 3 in jurisdictions where circuit courts have already held that classifications based on sexual orientation are subject to rational basis review, and it has advanced arguments to defend DOMA Section 3 under the binding standard that has applied in those cases.

These new lawsuits, by contrast, will require the Department to take an affirmative position on the level of scrutiny that should be applied to DOMA Section 3 in a circuit without binding precedent on the issue. 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.

Standard of Review

The Supreme Court has yet to rule on the appropriate level of scrutiny for classifications based on sexual orientation. It has, however, rendered a number of decisions that set forth the criteria that should inform this and any other judgment as to whether heightened scrutiny applies: (1) whether the group in question has suffered a history of discrimination; (2) whether individuals “exhibit obvious, immutable, or distinguishing characteristics that define them as a discrete group”; (3) whether the group is a minority or is politically powerless; and (4) whether the characteristics distinguishing the group have little relation to legitimate policy objectives or to an individual’s “ability to perform or contribute to society.” See Bowen v. Gilliard, 483 U.S. 587, 602-03 (1987); City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 441-42 (1985).

Each of these factors counsels in favor of being suspicious of classifications based on sexual orientation. First and most importantly, there is, regrettably, a significant history of purposeful discrimination against gay and lesbian people, by governmental as well as private entities, based on prejudice and stereotypes that continue to have ramifications today. Indeed, until very recently, states have “demean[ed] the[] existence” of gays and lesbians “by making their private sexual conduct a crime.” Lawrence v. Texas, 539 U.S. 558, 578 (2003).

Second, while sexual orientation carries no visible badge, a growing scientific consensus accepts that sexual orientation is a characteristic that is immutable, see Richard A. Posner, Sex and Reason 101 (1992); it is undoubtedly unfair to require sexual orientation to be hidden from view to avoid discrimination, see Don’t Ask, Don’t Tell Repeal Act of 2010, Pub. L. No. 111-321, 124 Stat. 3515 (2010).

Third, the adoption of laws like those at issue in Romer v. Evans, 517 U.S. 620 (1996), and Lawrence, the longstanding ban on gays and lesbians in the military, and the absence of federal protection for employment discrimination on the basis of sexual orientation show the group to have limited political power and “ability to attract the [favorable] attention of the lawmakers.” Cleburne, 473 U.S. at 445. And while the enactment of the Matthew Shepard Act and pending repeal of Don’t Ask, Don’t Tell indicate that the political process is not closed entirely to gay and lesbian people, that is not the standard by which the Court has judged “political powerlessness.” Indeed, when the Court ruled that gender-based classifications were subject to heightened scrutiny, women already had won major political victories such as the Nineteenth Amendment (right to vote) and protection under Title VII (employment discrimination).

Finally, there is a growing acknowledgment that sexual orientation “bears no relation to ability to perform or contribute to society.” Frontiero v. Richardson, 411 U.S. 677, 686 (1973) (plurality). Recent evolutions in legislation (including the pending repeal of Don’t Ask, Don’t Tell), in community practices and attitudes, in case law (including the Supreme Court’s holdings in Lawrence and Romer), and in social science regarding sexual orientation all make clear that sexual orientation is not a characteristic that generally bears on legitimate policy objectives. See, e.g., Statement by the President on the Don’t Ask, Don’t Tell Repeal Act of 2010 (“It is time to recognize that sacrifice, valor and integrity are no more defined by sexual orientation than they are by race or gender, religion or creed.”)

To be sure, there is substantial circuit court authority applying rational basis review to sexual-orientation classifications. We have carefully examined each of those decisions. Many of them reason only that if consensual same-sex sodomy may be criminalized under Bowers v. Hardwick, then it follows that no heightened review is appropriate – a line of reasoning that does not survive the overruling of Bowers in Lawrence v. Texas, 538 U.S. 558 (2003). Others rely on claims regarding “procreational responsibility” that the Department has disavowed already in litigation as unreasonable, or claims regarding the immutability of sexual orientation that we do not believe can be reconciled with more recent social science understandings. And none engages in an examination of all the factors that the Supreme Court has identified as relevant to a decision about the appropriate level of scrutiny. Finally, many of the more recent decisions have relied on the fact that the Supreme Court has not recognized that gays and lesbians constitute a suspect class or the fact that the Court has applied rational basis review in its most recent decisions addressing classifications based on sexual orientation, Lawrence and Romer. But neither of those decisions reached, let alone resolved, the level of scrutiny issue because in both the Court concluded that the laws could not even survive the more deferential rational basis standard.

Application to Section 3 of DOMA

In reviewing a legislative classification under heightened scrutiny, the government must establish that the classification is “substantially related to an important government objective.” Clark v. Jeter, 486 U.S. 456, 461 (1988). Under heightened scrutiny, “a tenable justification must describe actual state purposes, not rationalizations for actions in fact differently grounded.” United States v. Virginia , 518 U.S. 515, 535-36 (1996). “The justification must be genuine, not hypothesized or invented post hoc in response to litigation.” Id. at 533.

In other words, under heightened scrutiny, the United States cannot defend Section 3 by advancing hypothetical rationales, independent of the legislative record, as it has done in circuits where precedent mandates application of rational basis review. Instead, the United States can defend Section 3 only by invoking Congress’ actual justifications for the law.

Moreover, the legislative record underlying DOMA’s passage contains discussion and debate that undermines any defense under heightened scrutiny. The record contains numerous expressions reflecting 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. See Cleburne, 473 U.S. at 448 (“mere negative attitudes, or fear” are not permissible bases for discriminatory treatment); see also Romer, 517 U.S. at 635 (rejecting rationale that law was supported by “the liberties of landlords or employers who have personal or religious objections to homosexuality”); Palmore v. Sidotti, 466 U.S. 429, 433 (1984) (“Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect.”).

Application to Second Circuit Cases

After careful consideration, including a review of my recommendation, the President has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a heightened standard of scrutiny. The President has also concluded that Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional. Given that conclusion, the President has instructed the Department not to defend the statute in Windsor and Pedersen, now pending in the Southern District of New York and the District of Connecticut. I concur in this determination.

Notwithstanding this determination, the President has informed me that Section 3 will continue to be enforced by the Executive Branch. To that end, the President has instructed Executive agencies to continue to comply with Section 3 of DOMA, consistent with 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 law’s constitutionality. This course of action respects the actions of the prior Congress that enacted DOMA, and it recognizes the judiciary as the final arbiter of the constitutional claims raised.

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. However, the Department in the past has declined to defend statutes despite the availability of professionally responsible arguments, in part because the Department does not consider every plausible argument to be a “reasonable” one. “[D]ifferent cases can raise very different issues with respect to statutes of doubtful constitutional validity,” and thus there are “a variety of factors that bear on whether the Department will defend the constitutionality of a statute.” Letter to Hon. Orrin G. Hatch from Assistant Attorney General Andrew Fois at 7 (Mar. 22, 1996). This is the rare case where the proper course is to forgo the defense of this statute. Moreover, the Department has declined to defend a statute “in cases in which it is manifest that the President has concluded that the statute is unconstitutional,” as is the case here. Seth P. Waxman, Defending Congress, 79 N.C. L.Rev. 1073, 1083 (2001).

In light of the foregoing, I will instruct the Department’s lawyers to immediately inform the district courts in Windsor and Pedersen of the Executive Branch’s view that heightened scrutiny is the appropriate standard of review and that, consistent with that standard, Section 3 of DOMA may not be constitutionally applied to same-sex couples whose marriages are legally recognized under state law. 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. Our attorneys will also notify the courts of our interest in providing Congress a full and fair opportunity to participate in the litigation in those cases. We will remain parties to the case and continue to represent the interests of the United States throughout the litigation.

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.

A motion to dismiss in the Windsor and Pedersen cases would be due on March 11, 2011. Please do not hesitate to contact us if you have any questions.

Sincerely yours,

Eric H. Holder, Jr.
Attorney General

Friday, February 11, 2011

A Boomer's Tale

Feeling more and more like an old dog these days?  If so, you'll like this! 

Courtesy of Mark Paco Slosky

One day an old German Shepherd starts chasing rabbits and before long, discovers that he's lost. Wandering about, he notices a panther heading rapidly in his direction with the intention of having lunch.

The old German Shepherd thinks, "Oh, oh, I'm in deep s*** now!"

Noticing some bones on the ground close by, he immediately settles down to chew on the bones with his back to the approaching cat. Just as the panther is about to leap, the old German Shepherd exclaims loudly, "Boy, that was one delicious panther! I wonder, if there are any more around here?"

Hearing this, the young panther halts his attack in mid-strike, a look of terror comes over him and he slinks away into the trees. "Whew!," says the panther, "That was close! That old German Shepherd nearly had me!"

Meanwhile, a squirrel who had been watching the whole scene from a nearby tree, figures he can put this knowledge to good use and trade it for protection from the panther. So, off he goes.

The squirrel soon catches up with the panther, spills the beans and strikes a deal for himself with the panther.  The young panther is furious at being made a fool of and says, "Here, squirrel, hop on my back and see what's going to happen to that conniving canine!"

Now, the old German Shepherd sees the panther coming with the squirrel on his back and thinks, "What am I going to do now?," but instead of running, the dog sits down with his back to his attackers, pretending he hasn't seen them yet, and just when they get close enough to hear, the old German Shepherd says......

"Where's that squirrel? I sent him off an hour ago to bring me another panther!"

Moral of this story...

Don't mess with the old dogs... Age and skill will always overcome youth and treachery! BS and brilliance only come with age and experience.

Wednesday, February 9, 2011

LIBER(AL)TARIAN - Not an Oxymoron

First, a disclaimer.  I'm not a libertarian. 

I consider myself a pragmatist with a left-lean.  I am registered Independent, because even though I mostly grok the Dems more than the Republicans, I'm fed up to here with power politics, rhetoric and manipulation of the public by whatever means money can buy.

Having said that, I'm enamored with a potential movement that's been labeled "liberaltarian."   Liber(al)tarians are folks who believe market-based approaches to social problems do, sometimes, offer the more favorable outcomes, and would like to see government step back from a significant number of its endeavors.  This perspective creates a veritable venn diagram of overlap between the liberal and the libertarian positions - hence, liberaltarians.

I personally find a lot of common ground with my libertarian friends.  I can agree with them whole-heartedly that we need to withdraw the corporate subsidies we've been handing to the forestry, mining, agriculture and ranching industries since our country's early days.  While once it may have required an incentive to get men to head out to the big wild to dig mines, run cattle, fell trees or tame the fields for food crops, now these industries are pretty much owned by big corporate money-makers.  They don't need taxpayer charity. 

But that was the libertarian argument.  The liberal argument says that these mega-industries are negatively impacting ecosystems, and plundering our natural resources.  And getting paid to do it.  Instead, these industries should have to (1) pay market value for their leases, and (2) the price of those leases should include one way or another the costs of careful stewardship of our land and resources, to preserve its availability both to future generations, and as an essential part of the earth's dynamic ecosystem.  These two requirements to internalize the costs of using natural resources would balance demand as real costs impact consumerism.

I can also agree that we need to bring manufacturing back to the U.S.  Loss of jobs and consumer buying power has converted this country from a mecca of the common man where people who hold down a job had a chance at the middle class, toward third world status.  But that's the Libertarian argument.

The liberal argument has also historically been an environmental argument.  Local and regional production reduce CO2 gases associated with transporting goods from far away places to the U.S.A.  And, when we export manufacturing, we also export the pollution that goes with production to countries with less rigourous environmental regulations.  And since pollution travels via air and water, it doesn't stay put.  Exporting simply makes pollution more difficult to control.

Of course now, most of us would also aspire to have the job base back.  So we even have an ideological venn overlap.

There are similar arguments to be made for the elimination of high tech tax loopholes, bad laws that make corporations into "persons" for legal purposes, and so on. 

The term "liberaltarian" was coined by some folks in D.C. prior to Obama coming on the scene - there were liberals and libertarians meeting to discuss whether something could be done about corporate welfare, overseas jobs bleed, etc.  Click this sentence for a great article by Bruce Bartlett explaining the potential of these two groups to find common ground and push policy. 

I'd always just assumed that the two groups are simply strange bedfellows - with very different ideological bases for wanting similar change.  But I recently read an excellent historical piece about the leftist tradition among libertarians, and was moved to drop a link to it into this blog post. "Libertarian Left: Free-market Anti-capitalism, the Unknown Ideal," by Sheldon Richmond, spins out the leftist roots of the movement, including a strong soft spot for the un- and underemployed in our midsts.  A quote from this article is below, but I urge you not to be satisfied with my little blurb on liberaltarianism, and to read his entire piece:

"These authors [Kevin Carson and Roderick Long]—and a growing group of colleagues—see themselves as both libertarians and leftists. They are standard libertarians in that they believe in the moral legitimacy of private ownership and free exchange and oppose all government interference in personal and economic affairs—a groundless, pernicious dichotomy. Yet they are leftists in that they share traditional left-wing concerns, about exploitation and inequality for example, that are largely ignored, if not dismissed, by other libertarians. Left-libertarians favor worker solidarity vis-à-vis bosses, support poor people’s squatting on government or abandoned property, and prefer that corporate privileges be repealed before the regulatory restrictions on how those privileges may be exercised. They see Walmart as a symbol of corporate favoritism—supported by highway subsidies and eminent domain—view the fictive personhood of the limited-liability corporation with suspicion, and doubt that Third World sweatshops would be the “best alternative” in the absence of government manipulation."

I'm not a libertarian.  But the liberaltarian model is a really nice model, in my mind, for demonstrating the ability of two quite different factions to find common ground and make progress. Perhaps had Obama not arrived on the scene, this group would have emerged with some ideas and made some progress. 

Perhaps it's not too late.