Legal Commentary

(first in a series of some ruminations, not wholly random, on the twin subjects of litigation -- California's Proposition 8 and DOMA -- presently winding their way through the courts).

With regard to the remarkable February letter from Attorney General Holder on behalf of the Obama administration, two pieces of intriguing fine print:

In footnote 2 of the letter, AG Holder says, in juxtaposing racial and sexual orientation discrimination, that "some of the (sexual orientation) discrimination has been based on the incorrect belief that sexual orientation is a behavioral characteristic that can be changed . . ."  This is the second shoe to drop (the other being one of Judge Walker's factual finding in the trial court decisin in Perry) with regard to the "immutability" argument.  When and if the administration is in the position in the future to argue about the constitutionality of either direct discrimination (as in Prop 8) or disparate impact, is this assertion -- a sort of "executive/legislative fact" if you will -- a component part of the government's argument?  And, more immediately, is this something that the Boehner Congress, soon expected to take up the task of defending DOMA, will expressly disavow?

Tantalizing fine print #2:  Holder asserts near the end that "in the event [the district courts in the Second Circuit] determine that the applicable standard is rational basis, the Department will state that, consistent with the position it has taken in prior cases, a reasonable argument for Section 3's constitutionality may be proffered under that permissive standard."  Does it follow that a "reasonable argument" can be mustered for Proposition 8 under the rational basis standard urged by Judge Walker in Perry?  Is this a carefully crafted way out for the administration in the instance -- not at all implausible of course -- that either the appellate court or SCOTUS says "no heightened scrutiny" in Perry situation?  Or is just a throwaway?

There is, indeed, both more and less than meets the eye in this seminal document!