Attorney General Eric Holder has notified Congress, pursuant to 28 USC 530D, that the Justice Department will not defend the constitutionality of the Defense of Marriage Act (DOMA) in two pending cases. Holder explains that while DOJ has previously defended the constitutionality of DOMA, the current cases were filed “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.”
In Holder’s judgment (and the President’s), however, sexual-orientation classifications ought to be subject to heightened scrutiny. Holder contends that this position is consistent with the general test laid out by the Supreme Court for determining suspect classifications, but he does not contend that there is any direct Supreme Court or other federal appellate authority supporting his view. In fact, he acknowledges “there is substantial circuit court authority applying rational basis review to sexual-orientation classifications.” This turns out to be something of an understatement– the footnotes in Holder’s letter identify no fewer than nine separate circuits that have rejected the position DOJ intends to assert. (The current cases, however, were filed in the Second Circuit, which has yet to rule on the question).
All of which is rather peculiar when one considers, as Holder puts it, DOJ’s “longstanding practice of defending the constitutionality of duly-enacted statutes if reasonable arguments can be made in their defense, a practice that accords the respect appropriately due to a coequal branch of government.” Holder implies, somewhat obliquely, that this practice may be inapplicable here because DOJ “in the past has declined to defend statutes despite the availability of professionally responsible arguments, in part because the Department does not consider every plausible argument to be a ‘reasonable’ one.”
In other words, while the legal rulings of nine federal courts of appeals may be “plausible” and “professionally responsible,” they are not “reasonable” enough to trigger DOJ’s duty to defend DOMA. This wouldn’t seem to show much respect for the judicial branch, much less Congress. And it would suggest that there is precious little left of the duty to defend.