On Wednesday, Feb. 23, Attorney General Eric Holder declared in a letter to House Speaker John Boehner (R-Ohio) that "the President and I have concluded that classifications based on sexual orientation warrant heightened scrutiny."
This is an important determination reached by the president and the Department of Justice that is preliminary to and independent of the decision (that got more coverage) that Section 3 of the Defense of Marriage Act is unconstitutional. As such, it is quickly going to raise questions in other areas of the law.
The "heightened scrutiny" determination is one relating to the test used by courts when evaluating claims that a law or government practice violates the equal protection rights of a group or individual. Under the most basic level of scrutiny -- rational basis -- the government need only show that the law provides a "reasonable" way of seeking a "legitimate" government aim.
Contrast this to a "suspect class," which receives "strict scrutiny." In such a case -- involving race or religion, for example -- the law is presumed to be unconstitutional and the government must prove that the law is "narrowly tailored" and the "least restrictive" way to advance a "compelling" governmental interest.
In between is heightened, or intermediate, scrutiny. Under this scrutiny, laws in question must be "substantially related" to "important" governmental interests.
Before Wednesday's decision, the government had previously defended laws that classified people based on sexual orientation by arguing that the laws met the rational basis test. Because laws under this standard are presumptively constitutional, the government's argument could be as relatively simple and often relied on things like "fiscal" prioirities, which are -- of course -- legitimate government objectives. Under heightened scrutiny, however, such an argument would be unlikely to pass muster and, in order to defend the law, the government would need to argue that some "important" governmental aim is substantially advanced by excluding or otherwise classifying gay people.
Which brings us to the next test.
Friday, Feb. 25, is the deadline for the Department of Justice to file its opening brief before the U.S. Court of Appeals for the Ninth Circuit in its appeal in Log Cabin Republicans v. United States. In September, U.S. District Court Judge Virginia Phillips found that "Don't Ask, Don't Tell" was unconstitutional and, in October, issued an order that halted enforcement of the law for several days.
The Ninth Circuit soon issued a temporary stay, and later halted Phillips's order until the appellate court could review the matter itself. After Obama signed the Don't Ask, Don't Tell Repeal Act into law in December, DOJ asked the Ninth Circuit to hold off on the appeal in order to give the government time, essentially, to render the lawsuit moot by ending DADT. The Ninth Circuit refused and set Friday as the deadline for the DOJ to file its brief defending DADT.
Which brings us to heightened scrutiny.
The Justice Department -- and Obama -- reached the conclusion that sexual orientation classifications should receive heightened scrutiny. DADT -- even more directly than DOMA -- classifies based on sexual orientation. 10 U.S.C. 654 is titled, "Policy concerning homosexuality in the armed forces."
That, of course, is a classification based on sexual orientation. Even DOMA doesn't specifically address homosexuality -- although its limitation of marriage recognition clearly and unavoidably impacts same-sex couples, and hence, homosexuals and bisexuals seeking to have a same-sex marriage recognized.
Even if the government wishes to argue that DADT should be distinguished from DOMA on the grounds that it is a military policy that requires additional executive deference, that is a step beyond the initial question of whether heightened scrutiny applies to the classification at issue in the LCR challenge.
Neither the White House nor the Department of Justice have responded to multiple requests to explain whether and, assuming so, how Wednesday's "heightened scrutiny" determination impacts the LCR filing.
A White House official told Metro Weekly only, "Congress has now enacted an orderly process for repeal of DADT, and repeal is expected to become final later this year. Quite apart from this decision, the Administration has encouraged the courts to withhold further proceedings in DADT litigation until the Executive Branch's certification process is complete."
As noted, the government did "encourage" that, but the Ninth Circuit rejected that request.
The White House official added -- in response to a question not asked -- "In the meantime, the Government will continue to enforce DOMA – and this provision of the [DADT] repeal law that invokes DOMA – unless and until Congress repeals the law or the Supreme Court strikes it down."
That non-answer prompted a follow-up question asking, "A filing deadline is set for the government on Friday. Does the president believe that 'heightened scrutiny' applies in the LCR v. U.S. case?"
Metro Weekly was told that the question was better directed to the Department of Justice, despite the fact that Holder's Feb. 23 letter made clear that it was "the President's instructions" that already has led DOJ to apply the DOMA determination to cases other than the two directly at issue in the letter.
DOJ is yet to respond to a follow-up request that references the White House's direction.
Although apparently unwilling to respond now, the Feb. 25 deadline will force a response soon.
ALSO READ: "Will the Justice Department Drop Its Defense of Don’t Ask, Don’t Tell?" [LGBT POV]
[UPDATE @ 9:15 PM: In response to a question about how the Witt v. United States Ninth Circuit ruling -- which found that heightened scrutiny should apply in former Major Margaret Witt's lawsuit seeking to be reinstated to the Air Force -- applies here in LCR's case, the government argued prior to the trial -- specifically, in an April 2010 filing -- that the heightened scrutiny applied by the Ninth Circuit in Witt did not apply to the LCR case. Why? Because Witt was an "as-applied" challenge, which applied only to Major Margaret Witt. LCR, on the other hand, is a facial challenge, which meant that LCR was (and is) seeking a ruling that DADT is unconstitutional in all cases.
In an order issued in July 2010, Phillips rejected that contention, finding that Witt's heightened scrutiny did apply to the case. Before Holder's letter, however, there was no reason to believe that DOJ would accept that or any other portion of Phillips's ruling on appeal.
On pages 13-14 of the government's Memorandum of Points and Authorities in Support of Defendants' Motion for Summary Judgment, filed April 26, 2010, DOJ argued:
Plaintiff’s burden is particularly high here, because the Court has ruled already that LCR may not “rely upon [the] heightened scrutiny standard [adopted in Witt] as the Ninth Circuit limited this standard to as-applied challenges,” and that this challenge is thus governed instead by the most deferential form of review available – the rational basis test (Doc. 83 at 17). Under that standard, the only question presented is whether Congress “rationally could have believed” that the conditions of the statute would promote its objective. Western & Southern Life Ins. Co. v. State Bd. of Equalization, 451 U.S. 648, 671-72, 101 S. Ct. 2070, 68 L. Ed. 2d 514 (1981) (emphasis in original).
The Supreme Court has held that the rational basis test “is not subject to courtroom fact-finding,” and rational basis review “is not a license for courts to judge the wisdom, fairness, or logic of legislative choices.” Fed. Commuc’ns Comm’n v. Beach Commc’ns, 508 U.S. 307, 315, 113 S. Ct. 2096, 124 L. Ed. 2d 211 (1993). The Government, therefore, has “no obligation to produce evidence to sustain the rationality of a statutory classification.” Heller v. Doe, 509 U.S. 312, 113 S. Ct. 2637, 125 L. Ed. 2d 257 (1993). Rather, “those challenging the legislative judgment must convince the court that the legislative facts on which the classification is apparently based could not reasonably be conceived to be true by the governmental decisionmaker.” Vance v. Bradley, 440 U.S. 93, 111, 99 S. Ct. 939, 59 L. Ed. 171 (1979). “Only by faithful adherence to this guiding principle of judicial review,” the Supreme Court has cautioned, “is it possible to preserve to the legislative branch its rightful independence and its ability to function.” Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 365, 93 S. Ct 1001, 35 L. Ed. 2d 351 (1973).
With respect to DADT, the Ninth Circuit already has found that Congress rationally could have believed the conditions of the statute would promote its objectives, see Philips, 106 F.3d at 1429, and that determination is binding Circuit precedent. Newton v. Thomason, 22 F.3d 1455, 1460 (9th Cir. 1994). Because LCR cannot meet its burden, Defendants are now entitled to summary judgment under Federal Rule of Civil Procedure 56.
That entire argument is irrelevant and no longer applies if Holder's conclusion on Feb. 23 that "classifications based on sexual orientation warrant heightened scrutiny" is the new standard that DOJ believes should apply to the LCR case. Because the rational basis argument was applied by the government at trial, however, DOJ only had to argue in the brief that "[u]nder settled case law governing rational review generally and governing review of DADT policy in particular, the bases Congress set forth in the statute are sufficient to survive rational basis review." (And, even there, it lost.)
This argument would be wholly insufficient under the standard that Holder announced on Feb. 23.]
[Photo: Vice President Biden and President Obama at the DADT Repeal Act signing on Dec. 22, 2010. (Photo by Ward Morrison.)]