Yesterday, the Obama administration filed a follow-up brief in the Smelt case -- the couple in California challenging DOMA who were the recipients of an imprudently written reply brief back in June. This time, it looks like some liberals in the Justice Department got their hands on a copy of the brief before filing. There are some nice words in there aimed at smoothing hurt feelings.
But the brief also argues for a new and dangerous interpretation of the rational basis test.
The rational basis test is applied by the court to laws that violate the equal protection clause, but do not implicate certain protected groups. In other words, if the law does not discriminate on the basis of race or gender, it will likely be upheld if the government can find any rational reason why the law exists. These reasons can be invented on the spot and are usually not tested very vigorously.
However, even this low standard of constitutional review has limits and one very important limit is that the government cannot argue that a law discriminates for the sole purpose of "administrative convenience."
This limit on rational basis is essential. Otherwise, all offensive and discriminatory laws would be maintained indefinitely because change is, frankly, hard and often expensive. As Chief Justice Burger said in his majority opinion in Reed v. Reed 404 U.S. 71 (1971) (a case where rational basis review was applied to a law discriminating against women):
To give a mandatory preference to members of either sex over members of the other, merely to accomplish the elimination of hearings on the merits, is to make the very kind of arbitrary legislative choice forbidden by the Equal Protection Clause of the Fourteenth Amendment.
This is a pretty important precedent, but Obama's Justice Department is interested in changing the way constitutional review works. They write in their brief:
Courts have held that challenges to DOMA are subject to rational basis review. Under that deferential standard of review, this Court should find that Congress could reasonably have concluded that there is a legitimate government interest in maintaining the status quo regarding the distribution of federal benefits in the face of serious and fluid policy differences in and among the states. ...Under rational basis review, Congress can reasonably take the view that it wishes to wait to see how these issues are resolved at the state level before extending federal benefits to marriages that were not recognized in any state when Congress tied eligibility for those benefits to marital status.
Effectively, Obama is saying that, given the vast disagreements between states about whether institutionalized homophobia is okay, it would just be too inconvenient for the Federal government to weigh in. Better to wait and see and once there is consensus, the government will have an easier time legislating all this marriage business.
Well, I'm sorry it's hard to change laws where there are state-wide differences. Turns out that taxation and employment law are also areas of disagreement between states, but the Federal government had no problem wading into those issues.
Constitutional jurisprudence clearly supports the idea that mere inconvenience does not justify discrimination. So perhaps it's time for the Obama administration to roll up its sleeves and start creating the policy changes it likes to talk about.
At least, we wouldn't have expected Obama to argue in favor of gutting the little constitutional protection LGBT Americans have left. If they are successful in Smelt, the rational basis test will have lost the only teeth it possessed.