Two weeks ago, the Bankruptcy Court for the Central District of California ruled that the Defense of Marriage Act was unconstitutional. The case involved two men who were legally married in California (in that small window of legality back in 2008). The U.S. Trustee said they couldn’t file as a married couple because of DOMA, but the Bankruptcy Court found, in a resoundingly strongly worded opinion, that DOMA violated their equal protection rights as guaranteed by the Fifth Amendment.
There were many amazing things about the opinion. First, it was signed by 20 of the 24 bankruptcy judges from the Central District, including the Chief Judge. Second, it relied heavily on Attorney General Eric Holder’s memo stating that the DOJ was not going to defend the constitutionality of DOMA. Third, it found DOMA unconstitutional under heightened and rational basis review. Fourth, it talked about discrimination based on sexual orientation and gender. In sum, it was an amazing opinion for those who have been saying for a long time that DOMA is patently unconstitutional. And, with the Obama administration publicly stating that it is no longer defending the constitutionality of DOMA, the decision was safe….
Until earlier this week, when the administration threw its previous statement completely out the window and appealed the decision of the Bankruptcy Court. The U.S. Trustee, controlled by the Department of Justice, which is headed by Attorney General Holder, decided that the United States must defend the constitutionality of a statute that the administration has said is unconstitutional. Moreover, the Trustee is appealing a decision that explicitly relies on the Trustee’s overseer’s rationale in finding the law unconstitutional.
The Trustee has some logic behind the appeal. In the appeal, the Trustee explained: “Although Attorney General and the President have concluded that Section 3 of DOMA, as applied to legally married same sex couples is subject to heightened scrutiny and is unconstitutional under that standard, the President has instructed that Executive Departments and agencies continue to comply with Section 3 unless and until it is repealed by Congress or there is a definitive ruling by the Judicial Branch that Section 3 is unconstitutional.”
The Trustee is evidently pointing to the following language from General Holder’s letter: “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.”
I think it’s quite clear that the Trustee has misread the Holder letter. Although it’s true the Holder letter states that Executive Branch officials shall continue to enforce DOMA, the letter also clearly states the the Department of Justice, which the Trustee’s office is a part of, will “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.” Moreover, “the Department will cease defense of Section 3.” The letter is setting up a distinction between executing the law, which the Executive Branch will continue to do, and defending the law, which it will no longer do.
By appealing, the Trustee is not simply executing the law but is defending the law. This is a direct contradiction of Holder’s letter which says the Department will not defend the law. There are only two conclusions then: one, the Trustee is taking action beyond its authority as a member of the Department of Justice or two, President Obama, consistent with his completely non-sensical and clearly politically-calculated position on gay marriage, is going back on the Holder letter from earlier this year.
I sure hope it’s the former.