Questions and Consequences

The decision on Feb. 23 by the Justice Department not to defend Section 3 of the Defense of Marriage Act in two cases pending in federal trial courts in New York and Connecticut shook the legal and political worlds. In part, that was because of how the question quickly turned to how the decision – and the underlying determination shared by President Obama that sexual orientation classifications should be subject to heightened scrutiny in court challenges – would impact other government policies, like denial of health benefits and challenges to ”Don’t Ask, Don’t Tell.”

On Feb. 25, the Department of Justice began to answer that question, filing its brief seeking a reversal of the trial court’s decision in the Log Cabin Republicans v. United States challenge to DADT. It did so, though, in a rather remarkable way: It attempted to change the question of what the lawsuit is.

Noting that ”[t]he repeal process is well under way,” the government argued that the appellate court should not be deciding whether DADT is constitutional, but should instead be deciding whether the DADT-repeal process is constitutional.

The government, in fact, doesn’t even directly address the constitutionality of DADT, aside from a single mention of past cases and past briefs.

In September 2010, U.S. District Court Judge Virginia Phillips found that “Don’t Ask, Don’t Tell” was unconstitutional and, in October, issued an order in the LCR case 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, the Justice Department 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 Feb. 25 as the deadline for the Justice Department to file its brief defending DADT.

The government argued that the novel path it has urged the court to take is correct because, following the passage of the DADT Repeal Act, “[t]his case is thus now in a different posture than when it was at the time of the entry of the injunction now under review.”

As noted above, the government is presenting the Ninth Circuit with a dramatically different argument on appeal than it had presented less than a year ago to the trial court. The questions, the government argued to the Ninth Circuit related to standing and Phillips’s worldwide injunction, as well as asking ”[w]hether Congress lacked the constitutional authority to establish an orderly process for repeal of [DADT], while keeping the former statute in place and maintaining the status quo during the transition in policy.”

As Log Cabin argued in response to the government’s request to hold the case in abeyance for this reason, though, the law is still in effect until it is repealed. ”During that time, the military will continue to refuse to process enlistments of individuals who openly declare their homosexuality,” lawyers for LCR wrote in January. ”It will continue to require that serving personnel who are homosexual conceal that core aspect of their identity, and lie, in violation of their oath and their honor, if the subject arises.”

In the second section of the brief, the government briefly notes that courts have upheld DADT as constitutional in the past and that the government argued so earlier in this case, ”Before Congress enacted the Repeal Act and established an orderly process to repeal [DADT], all the courts of appeals to have addressed the matter – including this Court – had sustained the constitutionality of [DADT] against both substantive due process and First Amendment challenges.”

Lawyers added that they had ”noted in [their] stay motion” that ”the detailed legislative record that Congress assembled in enacting [DADT] makes plain that Congress concluded, after considered deliberation, that the Act was necessary to preserve the military’s effectiveness as a fighting force … and thus, to ensure national security.”

Dan Woods, a partner at White & Case and the lead attorney for LCR, found the changed position to be significant.

”By not arguing merits of the constitutionality of Don’t Ask, Don’t Tell, the government’s brief, by its silence on these issues, is effectively conceding that Don’t Ask, Don’t Tell was and is unconstitutional,” he noted in a press statement. ”While it may be implicit, it is the first time in the six-plus-year history of the case that the government has not argued that Don’t Ask, Don’t Tell is constitutional.”

Then, on Feb. 28, DOJ filed its response to an inquiry from the U.S. District Court for the Northern District of California about the case of Karen Golinski, a federal court employee in California who sued so that her wife could receive spousal health benefits.

The filing in Golinski v. Office of Personnel Management notes that the Justice Department believes that Section 3 of the Defense of Marriage Act is unconstitutional and that Golinski’s case could be impacted by that decision, and, accordingly, has included this case on a list of cases sent to House Speaker John Boehner (R-Ohio) to “provide Congress a full and fair opportunity to participate in the litigation.”

The department’s lawyers also maintain, however, that the decision about whether it will defend Section 3 of DOMA does not resolve Golinski’s case for two reasons: one, because she is seeking to enforce an unenforceable order; and, two, because DOMA remains in effect.

The case, primarily, is an executive-judicial branch disagreement over whether the Employee Dispute Resolution Plan used by the U.S. Court of Appeals for the Ninth Circuit can result in an order – such as it issued here – that must be enforced by the Office of Personnel Management (OPM).

As the attorneys for the Justice Department wrote, “[T]he authority to administer the Federal Employees Health Benefits Program (‘FEHBP’) has been statutorily conferred upon OPM under the Federal Employees Health Benefits Act of 1959 (‘FEHBA’); that authority encompasses all Federal employees, including those of the Judicial Branch.”

The chief judge in the Ninth Circuit, Alex Kozinski, disagrees and issued repeated administrative orders over the past two years as part of the EDR Plan concluding so.

Although that is the primary dispute in the case, an underlying issue addressed in Kozinski’s administrative orders is whether the Defense of Marriage Act prohibits Golinski from receiving benefits for her wife under the FEHBP. OPM maintains it does; Kozinski disagrees.

OPM – Kozinski’s order notwithstanding – refused to give Golinski the benefits and, under the EDR Plan, Golinski was permitted to file a lawsuit seeking enforcement of Kozinski’s administrative order. She, with the aid of Lambda Legal, did so on Jan. 20, 2010.

When the Department of Justice announced that it and the president had concluded that Section 3 of DOMA is unconstitutional, Attorney General Eric Holder also stated in his letter to Boehner that the Justice Department would continue enforcing DOMA until the law is repealed by Congress or “the judicial branch renders a definitive verdict against the law’s constitutionality.”

Accordingly, the Justice Department noted in the filing that the president ”has instructed agencies to continue to comply with Section 3 ‘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.”’

In other words, the administration may have concluded that the law is unconstitutional, but it will continue to enforce the law until the appellate process has completed itself and a final judgment is reached.

As these and other cases proceed, the administration will continue to face significant scrutiny as legal observers watch for consistency, LGBT advocates look for equal treatment under the law, and opponents of LGBT equality look to buttress claims that the new effort is a politicization of the Justice Department.