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Holder DOMA Letter

Holder DOMA Letter

Page 1: Holder DOMA Letter


Number of Pages:6

Date Created:February 23, 2011

Date Uploaded to the Library:February 20, 2014

Tags:scrutiny, Cleburne, Pedersen, Bowers, Orientation, Romer, sexual, ofthe, Windsor, Standard, DOMA, Supreme, EXECUTIVE, Congress, Lawrence, president, section, department, Supreme Court, states, court, united, EPA, IRS, ICE, CIA

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Bas ingtnn. QI. 205:30
February 23, 2011
The Honorable John Boehner
U.S. House Representatives
Washington, 20515
Re: Defense Marriage Act
Dear Mr. Speaker:
After careful consideration, including review recommendation from me, the
President the United States has made the determination that Section the Defense
Marriage Act (DOMA), U.S.C. applied same-sex couples who are legally married
under state law, violates the equal protection component the Fifth Amendment.
Pursuant U.S.C. 530D, writing advise you the Executive Branchs determination and
inform you the steps the Department will take two pending DOMA cases implement that
While the Department has previously defended DOMA against legal challenges involving
legally married same-sex couples, recent lawsuits that challenge the constitutionality DOMA
Section have caused the President and the Department conduct new examination the
defense this provision. particular, November 2011, plaintiffs filed two new lawsuits
challenging the constitutionality Section DOMA jurisdictions without precedent
whether sexual-orientation classifications are subject rational basis review whether they
must satisfy some form heightened scrutiny. Windsor United States, No. 1:10-cv-8435
(S.D.N.Y.); Pedersen OPM, No. 3:10-cv-1750 (D. Conn.). Previously, the Administration has
defended Section jurisdictions where circuit courts have already held that classifications
DOMA Section states: determining the meaning any Act Congress, any ruling, regulation,
interpretation the various administrative bureaus and agencies the United States, the word marriage means
only legal union between one man and one woman husband and wife, and the word spouse refers only
person the opposite sex who husband wife.
based sexual orientation are subject rational basis review, and has advanced arguments
defend DOMA Section under the binding standard that has applied those cases.
These new lawsuits, contrast, will require the Department take affirmative
position the level scrutiny that should applied DOMA Section circuit without
binding precedent the issue. described more fully below, the President and have
concluded that classifications based sexual orientation warrant heightened scrutiny and that, applied same-sex couples legally married under state law, Section DOMA
Standard Review
The Supreme Court has yet rule the appropriate level scrutiny for classifications
based sexual orientation. has, however, rendered number decisions that set forth the
criteria that should inform this and any other judgment whether heightened scrutiny applies:
(I) whether the group question has suffered history discrimination; (2) whether
individuals exhibit obvious, immutable, distinguishing characteristics that define them
discrete group; (3) whether the group minority politically powerless; and (4) whether
the characteristics distinguishing the group have little relation legitimate policy objectives individuals ability perform contribute society. See Bowen Gilliard, 483 U.S.
587, 602-03 (1987); City Cleburne Cleburne Living Ctr., 473 U.S. 432, 441-42 (1985).
Each these factors counsels favor being suspicious classifications based
sexual orientation. First and most importantly, there is, regrettably, significant history
purposeful discrimination against gay and lesbian people, governmental well private
entities, based prejudice and stereotypes that continue have ramifications today. Indeed,
until very recently, states have demean[ed] the[] existence gays and lesbians making
their private sexual conduct crime. Lawrence Texas, 539 U.S. 558, 578 (2003).
See, e.g., Dragovich U.S. Department the Treasury, 2011 175502 .D. Cal. Jan. 18, 2011) Gill Office
ofPersonnel Management, 699 Supp. 374(D. Mass. 2010); Smelt County Orange, 374 Supp. 861,
880(C.D. Cal.,2005); Wilson Ake, 354 F.Supp.2d 1298, 1308(M.D. Fla. 2005); Kandu, 315 B.R. 123, 145
(Bkrtcy. W.D. Wash. 2004); Levenson, 587 F.3d 925, 931(9th Cir. E.D.R. Plan Administrative Ruling 2009).
While significant, that history discrimination different some respects from the discrimination that burdened
African-Americans and women. See Adarand Constructors, Inc. Pena, 515 U.S. 200, 216 (1995)(classifications
based race must viewed light the historical fact that the central purpose the Fourteenth Amendment
was eliminate racial discrimination emanating from official sources the States, and [t]his strong policy
renders racial classifications constitutionally suspect.); United States Virginia,
518 U.S. 515, 531 (1996)
(observing that our Nation has had long and unfortunate history sex discrimination and pointing out the
denial the right vote women until 1920). the case sexual orientation, some the discrimination has
been based the incorrect belief that sexual orientation behavioral characteristic that can changed subject moral approbation. Cleburne, 473 U.S. 441(heightened scrutiny may warranted for characteristics
beyond the individuals control and that very likely reflect outmoded notions the relative capabilities the
group issue); Boy Scouts ofAmerica Dale, 530 U.S. 640 (2000) (Stevens, J., dissenting)(Unfavorable opinions
about homosexuals have ancient roots. (quoting Bowers, 478 U.S. 192)).
Second, while sexual orientation carries visible badge, growing scientific consensus
accepts that sexual orientation characteristic that immutable, see Richard Posner, Sex
and Reason 101 (1992); undoubtedly unfair require sexual orientation hidden from
view avoid discrimination, see Dont Ask, Dont Tell Repeal Act of2010, Pub. No. 111321, 124 Stat. 3515 (2010).
Third, the adoption oflaws like those issue Romer Evans, 517 U.S. 620 (1996),
and Lawrence, the longstanding ban gays and lesbians the military, and the absence
federal protection for employment discrimination the basis ofsexual orientation show the
group have limited political power and ability attract the [favorable] attention the
lawmakers. Cleburne, 473 U.S. 445. And. while the enactment the Matthew Shepard Act
and pending repeal ofDont Ask, Dont Tell indicate that the political process not closed
entirely gay and lesbian people, that not the standard which the Court has judged
political powerlessness. Indeed, when the Court ruled that gender-based classifications were
subject heightened scrutiny, women already had won major political victories such the
Nineteenth Amendment (right vote) and protection under Title VII (employment
Finally, there growing acknowledgment that sexual orientation bears relation
ability perf
orm contribute society. Frontiero Richardson, 411 U.S. 677, 686 (1973)
(plurality). Recent evolutions legislation (including the pending repeal Dont Ask, Dont
Tell), community practices and attitudes, case law (including the Supreme Courts holdings Lawrence and Romer), and social science regarding sexual orientation all make clear that
sexual orientation not characteristic that generally bears legitimate policy objectives. See,
e.g., Statement the President the Dont Ask, Dont Tell Repeal Act of2010 (It time
recognize that sacrifice, valor and integrity are more defined sexual orientation than they
are race gender, religion creed.) sure, there substantial circuit court authority applying rational basis review
sexual-orientation classifications. have carefully examined each those decisions. Many them reason only that ifconsensual same-sex sodomy may criminalized under Bowers
Hardwick, then follows that heightened review appropriate line ofreasoning that does
not survive the overruling ofBowers Lawrence Texas, 538 U.S. 558 (2003). Others rely
claims regarding procreational responsibility that the Department has disavowed already
litigation unreasonable, claims regarding the immutability sexual orientation that
not believe can reconciled with more recent social science understandings. And none
See Equality Foundation City a/Cincinnati, F.3d 261, 266-67 (6th Cir. 1995); Steffan Perry,
F.3d 677, 685 (D.C. Cir. 1994); Woodward United States, 871 F.2d I068, I076 (Fed. Cir. 1989); Ben-Shalom
Marsh, 881 F.2d 454, 464 (7th Cir. 1989); Padula
Webster, 822 F.2d 97, 103 (D.C. Cir. 1987).
See, e.g.. Lofton Secretary the Dept a/Children amily Servs., 358 F.3d 804, 818 (IIth Cir. 2004)
(discussing child-rearing rationale); High Tech Gays Defense Jndust. Sec. Clearance Office, 895 F.2d 563, 571
(9th Cir. 1990) (discussing immutability). noted, this Administration has already disavowed litigation the
engages examination all the factors that the Supreme Court has identified relevant
decision about the appropriate level scrutiny. Finally, many the more recent decisions have
relied the fact that the Supreme Court has not recognized that gays and lesbians constitute
suspect class the fact that the Court has applied rational basis review its most recent
decisions addressing classifications based sexual orientation, Lawrence and Romer. But
neither those decisions reached, let alone resolved, the level scrutiny issue because both
the Court concluded that the laws could not even survive the more deferential rational basis
Application Section DOMA reviewing legislative classification under heightened scrutiny, the government must
establish that the classification substantially related important government objective.
Clark Jeter, 486 U.S. 456, 461 (1988). Under heightened scrutiny, tenable justification
must describe actual state purposes, not rationalizations for actions fact differently grounded.
United States
Virginia 518 U.S. 515, 535-36 (1996). The justification must genuine, not
hypothesized invented post hoc response litigation. Id. 533. other words, under heightened scrutiny, the United States cannot defend Section
advancing hypothetical rationales, independent the legislative record, has done circuits
where precedent mandates application rational basis review. Instead, the United States can
defend Section only invoking Congress actual justifications for the law.
Moreover, the legislative record underlying DOMAs passage contains discussion and
debate that undermines any defense under heightened scrutiny. The record contains numerous
expressions reflecting moral disapproval gays and lesbians and their intimate and family
relationships precisely the kind stereotype-based thinking and animus the Equal Protection
Clause designed guard against. See Cleburne, 473 U.S. 448 (mere negative attitudes,
argument that DOMA serves governmental interest responsible procreation and child-rearing. H.R. Rep.No.
104-664, the Department has explained numerous filings, since the enactment DOMA, many leading
medical, psychological, and social welfare organizations have concluded, based numerous studies, that children
raised gay and lesbian parents are likely well-adjusted children raised heterosexual parents.
See Cook
Gates, 528 F.3d 42, (1st Cir. 2008); Citizens for Equal Prot.
2006); Johnson
Johnson, 385 F.3d (5th Cir.2004); Veney
Equality Foundation Greater Cincinnati, Inc.
Bruning, 455 F.3d 859, 866 (8th Cir.
Wyche, F.3d 726, (4th Cir. 2002);
City Cincinnati, 128 F.3d 289, 292-94 (6th Cir.1997).
See, e.g., H.R. 15-16 (judgment [opposing same-sex marriage] entails both moral disapproval
homosexuality and moral conviction that heterosexuality better comports with traditional (especially Judeo
Christian) morality); id. (same-sex marriage legitimates public union, legal status that most people ...
feel ought illegitimate and put[s] stamp approval ...on union that many people ...think
immoral); id. (Civil laws that permit only heterosexual marriage reflect and honor collective moral
judgment about human sexuality); id. (reasons behind heterosexual marriage-procreation and child-rearing-are accord with nature and hence have moral component); id. (favorably citing the holding Bowers that
anti-sodomy law served the rational purpose expressing the presumed belief ... that homosexual sodomy
immoral and unacceptable id. (favorably citing statement dissenting opinion Romer that [t]his
Court has business ...pronouncing that animosity toward homosexuality evil).
-------- ---------------
fear are not permissible bases for discriminatory treatment); see also Romer, 517 U.S. 635
(rejecting rationale that law was supported the liberties landlords employers who have
personal religious objections homosexuality); Palmore Sidotti, 466 U.S. 429, 433 (1984)
(Private biases may outside the reach the law, but the law cannot, directly indirectly,
give them effect.).
Application Second Circuit Cases
After careful consideration, including review recommendation, the President has
concluded that given number factors, including documented history discrimination,
classifications based sexual orientation should subject heightened standard scrutiny.
The President has also concluded that Section DOMA, applied legally married same
sex couples, fails meet that standard and therefore unconstitutional. Given that conclusion,
the President has instructed the Department not defend the statute Windsor and Pedersen,
now pending the Southern District New York and the District Connecticut. concur
this determination.
Notwithstanding this determination, the President has informed that Section will
continue enforced the Executive Branch. that end, the President has instructed
Executive agencies continue comply with Section DOMA, consistent with the
Executives obligation take care that the laws faithfully executed, unless and until Congress
repeals Section the judicial branch renders definitive verdict against the laws
constitutionality. This course action respects the actions the prior Congress that enacted
DOMA, and recognizes the judiciary the final arbiter the constitutional claims raised. you know, the Department has longstanding practice defending the
constitutionality duly-enacted statutes reasonable arguments can made their defense,
practice that accords the respect appropriately due coequal branch government. However,
the Department the past has declined defend statutes despite the availability
professionally responsible arguments, part because the Department does not consider every
plausible argument reasonable one. [D]ifferent cases can raise very different issues
with respect statutes doubtful constitutional validity, and thus there are variety
factors that bear whether the Department will defend the constitutionality statute. Letter Hon. Orrin Hatch from Assistant Attorney General Andrew Pois (Mar. 22, 1996). This the rare case where the proper course forgo the defense this statute. Moreover, the
Department has declined defend statute cases which manifest that the President
has concluded that the statute unconstitutional, the case here. Seth Waxman,
Defending Congress, N.C. L.Rev. 1073, 1083 (2001). light the foregoing, will instruct the Departments lawyers immediately inform
the district courts Windsor and Pedersen the Executive Branchs view that heightened
scrutiny the appropriate standard review and that, consistent with that standard, Section
DOMA may not constitutionally applied same-sex couples whose marriages are legally
recognized under state law. asked the district courts the Second Circuit for the position the United States the event those courts determine that the applicable standard rational
basis, the Department will state that, consistent with the position has taken prior cases,
reasonable argument for Section constitutionality may proffered under that permissive
standard. Our attorneys will also notify the courts our interest providing Congress full
and fair opportunity participate the litigation those cases. will remain parties the
case and continue represent the interests the United States throughout the litigation.
Furthermore, pursuant the Presidents instructions, and upon further notification
Congress, will instruct Department attorneys advise courts other pending DOMA litigation the Presidents and conclusions that heightened standard should apply, that Section
unconstitutional under that standard and that the Department will cease defense Section motion dismiss the Windsor and Pedersen cases would due March 11, 2011.
Please not hesitate contact you have any questions.
Sincerely yours,
Eric Holder, Jr.
Attorney General