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Judicial Watch • 2011 holder-DOMA-letter

2011 holder-DOMA-letter

2011 holder-DOMA-letter

Page 1: 2011 holder-DOMA-letter

Category:Obtained Document

Number of Pages:6

Date Created:February 23, 2011

Date Uploaded to the Library:July 30, 2013

Tags:basis, History, sexual, subject, courts, Administration, amendment, Supreme, EXECUTIVE, review, Attorney, Congress, speaker, Johnson, section, president, texas, State, Supreme Court, department, states, court, united, EPA, IRS, ICE, CIA

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Basingtnn. QI. 205:30 

February 23, 2011 
The Honorable John Boehner Speaker 
U.S. House Representatives Washington, 20515 

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 Branch's determination and inform you the steps the Department will take two pending DOMA cases 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 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 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: "In 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.2 
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 unconstitutional. 
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 individual's "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 "by 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 (N.D. Cal. Jan. 18, 2011 Gill Office Personnel 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 individual's control" and that "very likely reflect outmoded notions the relative capabilities of' the group issue); Boy Scouts America 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 Don't Ask, Don't Tell Repeal Act of2010, Pub. No. 111321, 124 Stat. 3515 (2010). 
Third, the adoption laws like those issue Romer Evans, U.S. 620 1996), and Lawrence, the longstanding ban gays and lesbians the military, and the absence federal protection for employment discrimination the basis sexual 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 Don't Ask, Don't 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 discrimination). 
Finally, there growing acknowledgment that sexual orientation "bears relation 
ability perform contribute society." Frontiero Richardson, 411 U.S. 677, 686 (1973) (plurality). Recent evolutions legislation (including the pending repeal Don't Ask, Don't Tell), community practices and attitudes, case law (including the Supreme Court's 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 Don't Ask, Don't 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 consensual same-sex sodomy may criminalized under Bowers Hardwick, then follows that heightened review appropriate line reasoning that does
not survive the overruling Bowers 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, 261, 266-67 (6th Cir. 1995); Steffan Perry, 677, 685 (D.C. Cir. 1994); Woodward United States, 871 F.2d 068, 076 (Fed. Cir. 1989); Ben-Shalom Marsh, 881 F.2d 454, 464 (7th Cir. 1989); Padula Webster, 822 F.2d 97, (D.C. Cir. 1987). 
5See, e.g Lofton Secretary the Dep't a/Children Family Servs., 358 804, 818 Ith Cir. 2004) (discussing child-rearing rationale); High Tech Gays Defense Jndust. Sec. Clearance Office, 895 F.2d 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 standard. 
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 DOMA's 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.7 See Cleburne, 473 U.S. 448 ("mere negative attitudes, 
argument that DOMA serves governmental interest "responsible procreation and child-rearing. Rep. No. 104-664, 13. 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. Bruning, 455 F.3d 859, 866 (8th Cir. 2006); Johnson Johnson, 385 532 (5th Cir. 2004); Veney Wyche, 726, 732 (4th Cir. 2002); Equality Foundation Greater Cincinnati, Inc. City Cincinnati, 128 289, 292-94 (6th Cir. 1997). See, e.g., H.R. Rep. 15-16 (judgment [opposing same-sex marriage] entails both moral disapproval homosexuality and moral conviction that heterosexuality better comports with traditional (especially JudeoChristian) morality"); id. (same-sex marriage "legitimates public union, legal status that most people ... feel ought illegitimate" and "put[s] stamp approval ... 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 "in 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. n.56 (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 samesex 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 Executive's obligation take care that the laws faithfully executed, unless and until Congress repeals Section the judicial branch renders definitive verdict against the law's 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 "in 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 Department's lawyers immediately inform the district courts Windsor and Pedersen the Executive Branch's 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 3's 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 President's instructions, and upon further notification Congress, will instruct Department attorneys advise courts other pending DOMA litigation the President's 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