DOMA: What Will Congress Do?

This has been a dramatic and historic week in our fight for LGBT equality. Just yesterday, the Department of Justice (DOJ) filed papers in our case representing Karen Golinski, a federal judicial employee who has been denied equal medical coverage for her wife.

It was only last week that the president and attorney general announced that the federal government would no longer defend Section 3 of DOMA, the section that requires the federal government to ignore and discriminate against the marriages of same-sex couples, because they have concluded it is unconstitutional. The government was required by the judge in the Golinski case to explain how it intended to defend its decision to deny equal medical benefits covering Golinski's wife since the government had relied upon the very law it now agrees is unconstitutional. The government's lawyers stated that while they have concluded that Section 3 of the so-called Defense of Marriage Act (DOMA) is unconstitutional, they will continue to enforce it until it is struck down or repealed. Golinski and her wife will not get equal medical coverage today.

And in two separate DOMA challenges, one brought by our colleagues at Gay & Lesbian Advocates & Defenders (GLAD) and the other brought by the ACLU, the DOJ sent letters to the courts indicating they would "cease defending Section 3" in those matters.

What does this all mean?

First, there is a far-reaching element of the attorney general's announcement last week that will take us beyond DOMA: The DOJ concluded that laws that treat people differently on the basis of sexual orientation demand "heightened scrutiny" by courts, which means that such laws are presumed unconstitutional. When heightened scrutiny is required, the burden is on the government to prove that a law, at least, substantially relates to advancing an important government interest. The DOJ does not have the authority to establish this level of review in the law -- only courts can do that. But the opinion of the president and attorney general carry considerable weight. Courts will take it seriously.

Some anti-gay discriminatory laws have not survived even a lesser level of review, but when heightened scrutiny is applied, anti-gay laws fall quickly. When this standard of review is adopted, unfair laws like those that exclude same-sex couples from marriage, adoption and equal custody rights will be struck down. That's huge.

Second, DOMA is still in effect. The executive branch, through the DOJ, has announced its legal opinion and its decision to stop defending Section 3 of DOMA in court. But the law remains in effect until a court strikes it down or Congress repeals it. In fact, in their response late yesterday in the Golinski matter, the president and attorney general made clear their intention to continue to enforce DOMA as long as it is still in effect, in accordance with their constitutional duty to "uphold the laws."

The most interesting and still unanswered questions arise with respect to the five pending cases where DOMA is challenged: Gill v. U.S. Office of Personnel Management (OPM); Pedersen et al. v. OPM; Commonwealth of Massachusetts v. U.S. Department of Health and Human Services; Dragovich v. U.S. Department of the Treasury; Windsor v. United States and Golinski v. OPM. In the two cases filed by GLAD and the Commonwealth of Massachusetts, the government previously defended DOMA. The federal district court in those two cases ruled that DOMA was unconstitutional, and the federal government appealed. The Court of Appeals has now asked whether the government will withdraw its appeal. In the two other cases filed more recently by the ACLU and GLAD, the government has already filed notice that it will not defend DOMA. And in Lambda Legal's Golinski case, as noted above, the government will continue to try to defend its decision to deny insurance on procedural grounds, arguing that the executive branch is not bound by a federal judge's order that equal benefits must be provided. because they are bound, instead, by DOMA.

But what will Congress do? Here the story gets more complicated in ways that may prolong the life of this ugly and discriminatory law -- but, we are confident, not save it in the end. In the rare circumstances when the executive branch declines to defend a law that it has concluded is unconstitutional, Congress may try to enter the case to defend it instead. Either chamber may order its counsel to seek to file an amicus brief or to intervene, but given the current political configuration, only the House is likely to consider this action.

The first time the executive branch decided not to defend a law passed by Congress was back in 1926, when President Wilson objected to a law passed by Congress that limited the president's power to remove postmasters. When the case got to the Supreme Court, it appointed a sitting Senator to represent the legislative branch as amicus and had him argue the case -- and then the court sided with Wilson. There have been a number of cases where one or both houses filed briefs as amici, and one, INS v. Chadha, in which they passed resolutions instructing counsel to seek to intervene at the court of appeal. This was granted, leading to the Supreme Court subsequently referring to the House and Senate as "parties" to the case. However, the Supreme Court did not issue any decision as to whether that was proper or not (In INS v. Chadha, the Reagan DOJ refused to defend a law allowing either house of Congress to "veto" a discretionary decision of the attorney general not to deport someone. The Supreme Court had struck down the law in 1983.)

Congress shouldn't seek to intervene to defend DOMA -- but we are afraid they will try. We believe the law is unconstitutional, and now the president and the DOJ think so too. The most recent judge to rule on the matter has ruled it unconstitutional. President Clinton, who signed the law in 1996, now disavows it. And most importantly, approximately 50,000 same-sex couples who have married in Massachusetts, Connecticut, Iowa, Vermont, New Hampshire, California and the District of Columbia are facing blatant discrimination from their own government and being treated differently than their neighbors and family members. This is not only unconstitutional -- it's un-American.

But there is a good chance that the House of Representatives will seek to intervene because some influential members think it is politically advantageous to do so. They won't be able to defend the law with anything more than the tired old arguments based on prejudices that are no longer working in court, because they are wrong. But they may still try because they believe they can fire up their base by attacking two political adversaries -- LGBT people and the president -- at once.

The political backlash has already been furious -- and inaccurate. Former Speaker of the House Newt Gingrich has suggested that President Obama could be impeached for his actions. House Majority Leader Eric Cantor (R- Va.) said that he'd "never been around when a president decided not to defend a law on the books." He must not have been around all that much. Senate records show that the Department of Justice has told Congress 13 times within the last six years alone (under President Bush as well as President Obama) that it was not defending an act of Congress. Indeed, our research shows that it has happened under the administrations of at least eight presidents, including Wilson, Truman, Kennedy, Carter, Reagan, George H. W. Bush, Clinton, George W. Bush (in a case argued by now-Chief Justice John Roberts) and Obama. Claims that President Obama has done something unprecedented or lawless are simply not true.

We are on a legal roller-coaster, and the ride has been pretty exciting, but we still have a long way to go. DOMA is still in effect and must be defeated in court or repealed. Instead of using time and taxpayer money to defend discrimination in court, Congress should put this bad law to rest by repealing it. Legislation to repeal DOMA and respect all marriages is being introduced in both the House and Senate. Members of Congress should vote for repeal promptly.