Over the weekend, hip-hot artist Jasiri X posted this image on his twitter feed. It’s taken from the front page of the New York Daily News’ website. Note the screaming headline and the sympathetic caption: “Accused killer Dylann Roof had one chance at a stable family life — and his abusive dad ruined it for…
When Pres. Obama announced Attorney General Eric Holder’s pending retirement Thursday, our friends on the right seemed to lose their composure. The Cato Institute’s Ilya Shapiro posted an article on the organization’s website – which has since been removed – in which he compared Holder to noted segregationist George Wallace: “Holder, according to Shapiro’s column, ‘has called for racial preference now, racial preferences tomorrow, racial preferences forever.’” Oh.
Meanwhile, Fox News’ Andrea Tantaros claimed Holder ran the Department of Justice “much like the Black Panthers would” (well, duh), while the headline on Jim Hoft’s often-ridiculed Gateway Pundit blog screamed, “Breaking: Controversial Scandal-Plagued Attorney General Holder to Step Down.” “Scandal-plagued” is the new “I disagree with you,” apparently.
But lost in the fond reminiscences and/or screaming paranoia was one of Holder’s most important acts as the country’s top lawyer: His decision not to defend the “Defense of Marriage Act” in court. Specifically, Holder persuaded Pres. Obama no longer to defend Section 3 of DOMA, which amended the federal definition of marriage to mean “only a legal union between one man and one woman as husband and wife.” 1 U.S.C. § 7.
In February 2011, Holder sent a letter to Speaker of the House John Boehner, explaining the Administration’s new position this way:
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.
So, to translate from lawyer to English, what Holder was talking about is this: Under the Equal Protection Clause of the Fourteenth Amendment, and the implicit “equal protection component” of the Fifth Amendment’s Due Process Clause, the government is prohibited from engaging in illegal discrimination. But equal protection prohibits more than just obvious sins like race and sex discrimination; it prevents the government from drawing irrational distinctions between any groups of similarly situated people. So, when the government decides to treat similarly situated groups differently, it has to show that a “rational basis” exists to justify that disparate treatment. If, however, the government attempts to draw a distinction between groups based upon a “suspect” classification like race or gender, it needs to demonstrate more than a mere “rational basis” to justify that type of discrimination because distinctions based upon “suspect” classifications like race and gender are, in equal protection parlance, subjected to “heightened scrutiny,” or “strict scrutiny,” in court. As Holder’s February 2011 letter to the Speaker explained, where the government seeks to treat people differently based upon suspect classifications, “the government must establish that the classification is ‘substantially related to an important government objective.’ Clark v. Jeter, 486 U.S. 456, 461 (1988).”
Moreover, at the time Holder announced the Administration’s position on DOMA, the Supreme Court had yet to decide whether sexual orientation should be treated as a suspect classification like race or gender for purposes of equal protection analysis. For example, in Lawrence v. Texas, 539 U.S. 538 (2003), the Supreme Court struck down a Texas law criminalizing certain same-sex sex acts, but based its ruling on the Fourteenth Amendment’s Due Process Clause, rather than the Equal Protection Clause, holding, “the Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.” In Romer v. Evans, 517 U.S. 620 (1996), the Court struck down a Colorado ballot initiative that voided state and municipal laws prohibiting discrimination on the basis of sexual orientation, holding that the ballot initiative “fail[ed] … even [the] conventional inquiry [i.e., the rational basis test].” Consequently, the Court did not need to address the question whether sexual orientation warranted treatment as a suspect classification. Ultimately, in the Windsor case Holder referred to in his February 2011 letter to Boehner, the Supreme Court relied on the rational basis test to invalidate DOMA, holding that “no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity.” United States v. Windsor, ___ U.S. ___, 133 S. Ct. 2675, 2696 (2013).
But at the time Holder announced the Administration’s legal position on DOMA, the question was far from settled. And, as Holder’s letter to Boehner explained, the plaintiffs in Windsor and another case, Pedersen v. OPM, No. 3:10-cv-1750 (D. Conn.), specifically asserted that sexual orientation should be treated as a suspect classification, which forced the Administration to take a hard look at the issue. And that, in turn, led Holder to determine that these plaintiffs were correct: That sexual orientation should be treated as a suspect classification, and, consequently, that DOMA violates equal protection.
That may seem like a lot of legalese – and it is – but I cannot stress this point strongly enough: For a President and his Attorney General to state that sexual orientation should be treated like race and gender for purposes of equal protection of the laws represents an enormous sea-change in gay rights law. No President before, and few, if any, federal courts, had ever suggested that government discrimination against gays and lesbians should be treated in the same manner as discrimination on the basis of race or gender. For that to be the official policy of the Executive Branch – and for the Executive Branch to advocate that position in Court – was truly remarkable.