The U.S. Department of Justice, Civil Division, has filed its motion to dismiss in Gill v. Office of Personnel Management, Case No. 1:09-cv-10309 (JLT) (U.S.Dist.Ct., D. Mass.), the constitutional challenge to Section 3 of the federal Defense of Marriage Act filed in federal court in Boston last winter by Gay & Lesbian Advocates & Defenders (GLAD). The brief that DOJ filed on September 18 in support of the motion seems to come from a different universe from the brief they filed in June seeking dismissal of a DOMA challenge on the West Coast. Indeed, comparing the two is like comparing apples and oranges.

Last spring, DOJ first argued that the Smelt case should be dismissed for lack of standing, because the married couple who filed that case did not allege any specific harm they had suffered due to DOMA. DOJ won the motion to dismiss on that ground. But their brief went on to make the outrageous claim that the case should also be dismissed on the merits because DOMA was not discriminatory, but merely an attempt by Congress to be “neutral” in a contentious national debate over same-sex marriage. DOJ’s brief generated most of the public ire, however, in its response to the challenge to Section 2 of DOMA, relieving states of any obligation to recognize out-of-state same-sex marriages, and that section is not involved in the Gill case in Boston.

This time out, DOJ does make some narrowly-focused standing arguments concerning some of GLAD’s plaintiffs, but they are almost beside the point, because there is no dispute that several of the plaintiffs do have standing to raise a constitutional challenge to DOMA due to their exclusion from federal rights and benefits. All of the plaintiffs are either same-sex couples who married in Massachusetts or the surviving spouses of same-sex partners who they had married there, and in each case they had applied for some federal benefits or sought to exercise some federal rights unsuccessfully because of DOMA. DOJ argues that one of the plaintiffs’ cases must be dismissed because only the federal court of claims based in the District of Columbia has jurisdiction over the particular claim. As to another, they demonstrate convincingly that the particular plaintiff’s federal agency employer, the Postal Service, was not a participant in the particular benefits program about which she was complaining.

But turning to the merits, DOJ’s argument is quite straight-forward. After conceding that the Act discriminates and that the Administration is seeking its repeal, the brief nonetheless defends it as constitutional on minimalist grounds. Pointing out that at the time it was passed, no state authorized same-sex marriage and the enactment was provoked by concerns about a pending same-sex marriage lawsuit in Hawaii, DOJ argues that Congress could have rationally reacted to an unsettled situation regarding this new potential social phenomenon by preserving the status quo until the states had worked out a uniform approach to the issue. Making the argument that Congress could rationally believe it was sensible to have one standard for eligibility for federal rights and benefits throughout the nation, DOJ argues that in Section 3 Congress could have decided to preserve existing eligibility rules by adopting a uniform definition of marriage for the federal government. This way, eligibility for federal benefits would not differ from state to state.

DOJ argues that this proposed rational basis would be sufficient to satisfy the “rational basis” test of judicial review, under which statutes are presumed to be constitutional and the burden is on the challenger to prove that there is no non-discriminatory rationale for the statute. LGBT rights groups have been arguing in the courts that a more demanding level of judicial review should pertain to gay rights cases, due to the history of anti-gay discrimination, which illustrates that gays have frequently been the targets of blatantly discriminatory government policies. In cases involving other groups, the Supreme Court has indicated that such a history might require heightened scrutiny of equal protection claims.

The problem here is that the Supreme Court’s rather opaque opinion in Romer v. Evans, the 1996 ruling overturning Colorado’s anti-gay Amendment 2 which is the only equal protection ruling in favor of gay plaintiffs ever issued by the Supreme Court, has left the impression with lower courts that the “rational basis” test is the appropriate test for evaluating anti-gay legislation. The Romer decision was written against a context of national controversy about the constitutionality of the anti-gay military policy as well as same-sex marriage, and it is likely that the Supreme Court was looking for a way to decide that case without significantly affecting the constitutional status of these other issues, which may help to explain why Justice Anthony M. Kennedy’s opinion for the Court takes the approach that it did. It was possible for the Court to invalidate Amendment 2 by holding that it failed even the least stringent standard of judicial review, the rational basis test, without saying anything about whether some stricter standard of review might be appropriate for cases involving other anti-gay legislation. Arguably, if a discriminatory statute lacks even a rational basis, there is no need to undertake more stringent review and the Court can avoid deciding whether more stringent review might apply. Avoiding deciding constitutional issues that need not be decided is a central tenet of judicial restraint.

This was, of course, not a holding that anti-gay legislation does not merit a higher standard of review, but merely a ruling that Amendment 2 would fall to the lowest standard of review, because the Court saw the amendment as a product of pure animus against gay people, and had previously held in cases on other subjects that pure animus against a particular class of people is never a legitimate basis for discriminatory legislation.

Unfortunately, however, the 1^st Circuit Court of Appeals, which would have jurisdiction over any appeal of GLAD’s case from the Massachusetts District Court, issued a ruling last year holding that in light of Romer v. Evans it concluded that the rational basis test was the appropriate standard for evaluating an equal protection challenge to the military “don’t ask, don’t tell” policy. The court’s opinion in that case, Cook v. Gates, is itself somewhat elusive on the point, but seems to take the position that inasmuch as the Supreme Court did not adopt a higher standard of review in Romer and avoided discussing the equal protection issue in Lawrence, the 1^st Circuit would follow the lead of other circuit courts in using the rational basis standard.

Thus, District Judge Joseph L. Touro, before whom this case is pending in Boston, is arguably bound by 1^st Circuit precedent to use the rational basis test in deciding this motion to dismiss. The argument about national uniformity advanced by DOJ in support of its motion is just the kind of argument that usually wins a rational basis case, given the presumption of constitutionality. It is possible that GLAD can, in its responding brief, find support in the legislative history for the argument that animus played a significant role in the enactment of DOMA, or can persuade the court that Justice Sandra Day O’Connor’s discussion of equal protection in her concurring opinion in Lawrence shows that gay rights cases merit “more searching scrutiny” which requires a trial rather than disposition by motion to dismiss.

Of course, this case was planned to go to the appellate level in any event, so a dismissal by Judge Touro will merely hasten its progress by propelling it to the First Circuit more quickly. Touro could easily conclude that in light of First Circuit precedent, a trial can be avoided for now, and that the place to hold the purely legal argument about whether heightened scrutiny applies is at the court of appeals.

One point about the DOJ brief which is worthy of comment is its extensive textual footnote 10, which disavows any reliance on the argument that DOMA is justified under the reprehensible “responsible procreation and child-rearing” theory, a theory that has been at the heart of the same-sex marriage cases that have been decided adversely over the past few years. “Since the enactment of DOMA,” says the brief, “many leading medical, psychological, and social welfare organizations have issued policies opposing restrictions on lesbian and gay parenting upon concluding, based on numerous studies, that children raised by gay and lesbian parents are as likely to be well-adjusted as children raised by heterosexual parents.” The brief also notes in this footnote that “Justice Scalia acknowledged in his dissent [in Lawrence v. Texas] that encouraging procreation would not be a rational basis for limiting marriage to opposite-sex couples under the reasoning of the Lawrence majority opinion – which, of course, is the prevailing law – because ‘the sterile and the elderly are allowed to marry.’ Thus, the government does not believe that DOMA can be justified by interests in ‘responsible procreation’ or ‘child-rearing.’”

This footnote, which cites half a dozen professional sources for its factual assertions, is clearly the result of meetings that gay rights groups held with Civil Division attorneys after the uproar over last June’s DOMA brief in the Smelt case in California. Indeed, the DOJ reply brief in Smelt, filed shortly before the court granted the DOJ dismissal motion in that case on procedural grounds, already backed away from the worst arguments from the original brief, and disavowed these same arguments.

Is this new DOJ brief so “weak” in defending DOMA that it is giving up the game in hopes that the court will strike it down, saving the administration the effort to get it repealed by Congress? I don’t think so. In fact, in retreating from the more outrageous approach of the earlier brief, this brief actually lands on a facially plausible, non-discriminatory rationale for DOMA.

A handful of states allows same-sex marriage, while almost all of the rest ban it by constitutional amendment or statute, so it is plausible to assert that if Congress desired a national standard for eligibility for benefits, it could have believed that the way to preserve uniformity as of 1996 was to take the then-existing definition of marriage in every state and adopt it as the federal standard. I would argue, given the historical context, that this sudden, rather belated concern with uniformity in administering programs that in many cases were decades old was clearly sparked by a desire to exclude same-sex couples from eligibility just in case same-sex marriages became legal anywhere, and thus it embodied a discriminatory motive, but in rational basis cases it is unusual for the court to look behind the face of the statute at such arguments. (Under Justice O’Connor’s “more searching scrutiny” standard, I think such evidence clearly becomes relevant, but O’Connor’s statement comes from a concurring opinion, not the Court’s opinion, although it is itself a synthesis of prior decisions by the Court in cases involving other groups, so it was “nothing new.”)

Bottom line: I suspect Judge Touro will find it convenient based on the DOJ arguments to dismiss the lawsuit, GLAD will promptly appeal, the issue of appropriate level of review will be joined in the First Circuit, where the Cook v. Gates decision might also be invoked as binding in a three-judge panel but could be open to debate through en banc review. And, of course, ultimately there will be no final judgment in this case until the Supreme Court decides it, and there are too many imponderables about who may be sitting on the high court by then to make any prognostications on the merits now. Justice O’Connor is retired. Will any other member of the Court embrace the idea that at least “more searching scrutiny” than the ordinary rational basis test provides is appropriate in gay rights cases?