Ari Ezra Waldman
“May you live in interesting times” is as much a curse as a warning. Turbulence, upheaval and revolution – these lead to difficult lives, implies the supposedly Chinese curse. But they are also the defining characteristics of great social change.
There are protests and arrests, laws passed and challenged, pickets and bullhorns, hate mongering and fear baiting. And our judiciary is not immune. To suggest that our judges are like traffic lights hovering above the fray of an ungovernable intersection is to ignore history, logic and reality. The judiciary has always been and will always be part of these “interesting times” whether we like it or not.
This has certainly been the case recently. Being gay at the beginning of the 21st century is “interesting,” but also wonderful and inspiring. In the last five years, we won and lost marriage equality in California, and now seem on pace to win it back. We won marriage equality in Iowa and Connecticut, but never got close in New York and New Jersey.
We also won court rulings declaring part of the Defense of Marriage Act, and all of the “Don’t Ask, Don’t Tell” Act, unconstitutional. But now come the appeals.
On Oct. 12, 2010, U.S. District Judge Virginia Phillips issued her worldwide injunction against “Don’t Ask, Don’t Tell” (DADT), the 1993 Clinton-era policy that bans gays and lesbians from serving openly in the military.
The Log Cabin Republicans, who brought the case, established at trial that DADT has a deleterious effect on unit cohesion, military readiness and troop morale. And, as a facial challenge – meaning, a challenge to the law itself, rather than how it was being applied to a particular individual – an injunction in the case would mean the law is not only unconstitutional in Riverside, Calif., but also in Washington, D.C., Springfield, Ill., Ramstein, Germany, and anywhere and everywhere else.
Not two hours later, 21 U.S. Senators – 20 Democrats and one independent from Vermont – sent a letter to Attorney General Eric Holder asking him not to appeal the injunction.
This letter came 30 minutes after the Department of Justice (DOJ) announced its intention to appeal the July 8, 2010 rulings of U.S. District Judge Joseph Tauro that declared DOMA’s federal definition of marriage as only between one man and one woman as a violation of equal protection and due process guarantees, as well as the Spending Clause and Tenth Amendment. Judge Tauro found, among other things, that Congress’s attempt to define marriage infringed on the rights of states – the heretofore only regulators of marriage – and violated due process as based purely on animus toward gays and lesbians as a group.
The DOJ has 60 days to decide if it will appeal Judge Phillips’ ruling. If it does, the Obama administration will be placed in the awkward position of defending (again) laws it says it opposes. Gay rights activists see this as another example of failure from an administration of which they were already suspicious. But I disagree.
Let us address the president’s rationale. President Obama has always made it clear that he prefers congressional action to overturn DADT and DOMA. But then why did he not do more to lobby senators when the Defense Authorization Bill, which included a repeal of DADT, was filibustered to death in the Senate in September? And, the argument goes, even if he prefers one tactic, the successful filibuster should be reason enough to switch tactics.
Furthermore, the Democratic Congress has shown no whispers of action on DOMA, so any preference for Congress to act seems pointless. I agree. Just because the president wanted to orchestrate repeal one way does not mean he has to stubbornly stick to his preference when his prospects for victory seem so dim.
But, consider two implications of not appealing either Judge Phillips’ decision on DADT and Judge Tauro’s decisions on DOMA. Failure to appeal would suggest that the federal government is willing to accept a trial level court’s unlimited power to declare national laws facially invalid. And, it would leave only low level judicial precedent on the merits, allowing other district and appellate courts to ignore their sister courts at will.
What if one of the 14 states challenging health-care reform manages to find a politically sympathetic district court judge and sneaks out a win? Some states are arguing that President Obama’s landmark health-care reform legislation impinges on states’ rights and violates the Commerce Clause by forcing individuals to buy healthcare. A dubious argument indeed, but not irrational. A district court could agree, declare health-care reform’s landmark universal coverage provision unconstitutional and issue an injunction to prevent the law’s implementation nationwide.
That is the same scenario posed by the district court decisions in the DADT and DOMA cases. The executive argues that courts have jurisdictions and their rulings apply in their jurisdictions. Every administration, of either party, has always argued that a single district court, or a single appellate court, cannot bind the entire nation. Any appeal would be a matter of executive power and federal supremacy, rather than bigotry or animus toward gays and lesbians.
As a matter of gay rights, an appeal is not necessarily a loss. If the DOJ appeals Judge Phillips’ ruling to the Ninth Circuit and appeals Judge Tauro’s ruling to the First Circuit, and loses, there will be two favorable federal appellate decisions on the side of progress.
An appellate court decision is far more persuasive to sister courts than a district court decision. And, if the cases continue to the Supreme Court, we should not handicap the outcome based on traditional liberal-conservative lines. For example, many conservative legal scholars hate DOMA for its federal imposition on state’s rights.
Nor should we handicap the outcome of any appeal, in general. High hurdles remain, including three-judge panels of the appellate courts, likely en banc rehearings and potential remands. Logistically, the next step in the DADT case is for the DOJ to decide, within 60 days, whether to appeal. If the DOJ decides to appeal, the Ninth Circuit will likely set a briefing schedule and hearing date. As for the DOMA case, the DOJ has already announced plans to appeal, so we should expect a briefing and hearing schedule from the First Circuit. The process for both will likely take us into the early to middle of 2011.
But do not despair. An appeal is not necessarily a bad thing. Our hearts might want an end to this controversy; the two district court decisions are remarkable statements of justice that barring gays and lesbians from serving openly in the military and barring them from the federal benefits that accompany marriage are anathematic to American principles of liberty and equality. A DOJ is not necessary a rejection of those of principles and may be an important step toward their universal recognition.
Ari Ezra Waldman is a graduate of Harvard College and Harvard Law School. After practicing in New York for five years and clerking at a federal appellate court in Washington, D.C., Waldman is now on the faculty at California Western School of Law in San Diego. His areas of expertise are criminal law, criminal procedure, LGBT law and law and economics. For more information about professor Waldman and his work, visit www.cwsl.edu.