Yesterday there was a diary that blasted Obama for failing in his stated desire to be a "fierce advocate" of gay rights because the DoJ had filed an appeal of the district court decision finding DOMA unconstitutional. I posted a fairly lengthy comment on why this appeal was not only expected but desirable, and it was suggested that the Daily Kos community might benefit from a longer diary on the topic.
The short version is that the US legal system often works in ways that are deeply counter-intuitive. We should not only expect that these cases will be appealed, we should desire that they are.
Below, I'll discuss how the legal system is structured, broadly. I'll also go into the situation regarding both the DOMA and DADT case in the courts right now.
Before we get into why these appeals are not bad things, it helps to understand the structure of the US judiciary. This is going to be simplified somewhat. There are several special-purpose courts that don't really follow the normal structure, but that don't matter for these kind of cases.
There are three levels of federal courts. At the bottom of the ladder are the district courts. These handle federal cases at more or less the state level, although quite a few states are divided into more than one district. Many federal cases -- such as challenges to the Constitutionality of federal laws -- begin here. Others start in the state courts but are "removed" to the district courts if it is determined that there the district court also has original jurisdiction over the matter. Above the district courts are the circuit courts. All of the states (or their component districts) belong to one of 11 numbered circuit courts, which hear appeals of district court cases. And above the circuit courts, the Supreme Court is the final arbiter of US law.
Each court only has jurisdiction over the area that it represents. Additionally, each court's rulings produce binding precedent only on lower (not peer) courts in the same jurisdiction. A district court ruling does not mandate that similar cases in other districts, or even in that district, will be determined the same way. A circuit court case determines a legal condition in the parts of the country served by that circuit court, but does not directly impact the territory of the other circuits or their cases. And of course, a Supreme Court cases is a (mostly) final answer to the question. Courts can and do pay attention to what other districts or circuits decide (called persuasive precedent), but there's no guarantee that they'll do the same thing. In fact, it's not rare for two circuits to disagree on an issue. When this occurs, a law may function differently in different parts of the country, despite being a federal law to begin with, a condition called circuit conflict or circuit split. For example, the 5th Circuit overturned a Texas law banning the sale of sex toys as violating the 14th Amendment, despite the fact that the 11th Circuit had upheld a Georgia ban challenged on the same grounds. Thus, until this conflict is resolved, the 14th Amendment "means" something different in Louisiana, Mississippi, and Texas (the 5th) than it does in Alabama, Florida, and Georgia (the 11th). The Supreme Court often takes this condition into consideration when deciding whether to accept appeals. On the other hand, if the Supreme Court does not accept the appeal (by granting a writ of certiorari), then the circuit court judgment stands for its circuit, but no binding precedent is created for anywhere else in the country.
Also, remember that winners can't appeal. Each court case is centered around the particular condition of the plaintiffs. You have to have standing to bring or to appeal a court case. In part, that requires that you are personally affected by the issue you're suing about. If you win the case at any level then, for you, that situation has changed. You're not being hurt anymore. No more standing. It doesn't matter if people just like you in the next state over are being harmed in the same way you were being harmed; this is your case, not theirs. There is NO mechanism that allows someone to challenge a law that is unconstitutional unless they themselves have been harmed by it. The Supreme Court will never just review laws arbitrarily to toss them out. If we want DOMA and DADT gone -- and we do -- there are only two routes to that goal: Congress could repeal them (but we'd need a working Congress) or the government can appeal cases (or we could appeal, if we lost in the district/circuit, although we're not losing in these cases) on the constitutionality of those laws to the Supreme Court, which has the power to strike them. That's it.
And, before we look at the cases, a word on executive orders. Yes, the President could issue an order instructing the military to cease enforcement of DADT. But that doesn't change the law. A later President could undue the executive order, for one thing. For another, it is plausible that someone could claim harm (a homophobic serviceman claiming damage to his morale, or whatever) due to the order and challenge its legality. The courts hate dealing with conflicts between the other branches (such as executive order versus law), and would probably declare it a "political question" and recommend that Congress fix it. Which they won't do, being Congress. Finally, if enforcement of DADT was in fact suspended, the courts might view that as evidence that no concrete and particularized harm was ongoing, and deny standing to people seeking to challenge the underlying law. And even ignoring those problems, there's no way to fix DOMA with an executive order at all.
Whew! Okay, so the court system is a tiny bit complicated. Where are the cases we care about right now?
Gill et al. v. Office of Personnel Management is a challenge to the constitutionality section 3 of the Defense of Marriage Act (DOMA). It was filed in the United States Court for the District of Massachusetts. On July 8, the judge ruled for the plaintiffs in summary judgment, finding the law unconstitutional under the Fifth Amendment, then stayed his judgment pending appeal. The DoJ has indicated that it will be appealing to the United States Court of Appeals for the First Circuit. The Daily Kos question is, of course, why did the government appeal if Obama doesn't like this law? Remember how the court system works. If the district court decision was allowed to stand, then the gender restrictions on federal marriage in Massachusetts would be lifted. This would mean that same-sex couples in that state only would be eligible for the federal benefits of marriage. The government does NOT enjoy having federal laws work differently in different states, and because the district courts create no binding precedent, it wouldn't have any real sense of permanence. So, this case is on its way to the First Circuit. If that court also finds against the law, then (setting aside the fact that the decision will be stayed pending appeal), federal marriage rights would be expanded in the territory of the First: Maine, Massachusetts, New Hampshire, Rhode Island and, oddly, Puerto Rico. The DoJ will almost certainly appeal again to the Supreme Court, who I expect (but they surprise me a lot) will take the case.
There is a second DOMA challenge, Massachusetts v. United States Department of Health and Human Services, which challenges the same sections of the law on slightly different grounds (10th Amendment and Spending Clause). It's in pretty much exactly the same situation. Same judge, same ruling, same appeal. Frankly, I wouldn't be surprised if Gill and Massachusetts were combined into an omnibus case at either the circuit or Supreme Court level.
Aside: in my earlier post, I mentioned effects of DOMA challenges on the part of the law that prevents same-sex marriages in one state from being recognized in other states. As it happens, neither DOMA case is challenging that part of the law, only the sections defining federal recognition. Mea culpa.
The DADT case is weirder. Log Cabin Republicans v. United States of America was heard by the United States District Court for the Central District of California. There was actually considerable pre-trial wrangling over the standing issue; LCR managed to produce one (and later, a second) person in the district who were affected by the law. As with the DOMA case, the judge here found for the plaintiffs. Where this gets weird is that she authored an injunction barring enforcement of the law by the military as a whole. Her ruling doesn't actually provide any sort of explanation as to why she's attempting to enforce a district court decision outside the boundaries of her district. If forced to guess, I'd assume the idea is that it would be impossible to enjoin DADT for central California without stopping it everywhere. I'm really not sure that injunction, in its current form, will survive appeal though; it's possible that this case will be stalled in the courts if the 9th Circuit tells her to try again, and not overreach her jurisdiction this time... Regardless, yes, this is going to be appealed (and I'm sure we'll see another round of "Obama throws gays under bus" blog posts and diaries).
We want these cases to be appealed. I know that the Supreme Court at the moment is no Warren Court (although they're much better on civil rights than corporate issues). But remember from above, appealing these cases is the only way (short of a working Congress) to get rid of these laws. In fact, back in August, GLAD even stated that they looked forward to an appeal in Gill, which will provide "the chance to argue in front of a higher court with a broader reach...[and] an opportunity to address the harms DOMA Section 3 causes to already married couples across the country." A DoJ that didn't appeal would mean that we could get wins in places like Massachusetts, but that it would be even harder and take even longer to fight these laws in other states -- we'd need new plaintiffs to start with, and we'd have to go through the often years-long process of a federal lawsuit in what would likely be less rights-friendly venues. Frankly, I would more have expected to see a refusal to appeal had the Republicans succeeded in turning the DoJ into an annex of their party; refusing to appeal Gill would have let them write off marriage law in Massachusetts as a lost cause while making it harder to attack the status quo elsewhere and giving them a wedge issue for later elections.
I'm not an apologist for Obama, and I'm not at all sure I can view him as a "fierce advocate" of gay rights (or much of anything, sadly). There are a LOT of things I think he could have done or handled differently, but appealing the DADT/DOMA cases isn't on that list. In fact, Rep. Lamar Smith (R-TX) has asked to be named a defendant-intervenor in the DOMA case. He believes that the government is actually on our side, and is intentionally throwing these cases in order to get the laws overturned. He wants to be able to defend them in place of the DoJ. That's what happened in California, where the state refused to defend Prop 8. The DoJ's defense in Gill was not what I'd call robust (they called no witnesses), but I still don't think there's any chance that Smith will be granted defendant-intervenor status. Still, remember that there are mechanisms out there to prevent the government from just throwing away laws it doesn't like without having them go through either the legislative or judicial process to remove them.
The sky is not falling. We are not doomed. Do not panic about these (or similar) appeals. That's how the US legal system works. It's long and slow sometimes, but taking shortcuts isn't how to win the day.