Marty Lederman points to a DOJ brief opposing the constitutionality of DOMA § 3 recently filed in the Northern District of California. The DOJ argues for heightened scrutiny while conceding that “binding authority of this circuit [i.e., the Ninth Circuit] holds that rational basis review applies to sexual orientation classifications.” (p. vi) Moreover, the DOJ brief states that, if rational basis is the appropriate standard, “as the government has previously stated, a reasonable argument for the constitutionality of DOMA Section 3 can be made under that permissive standard.”
The brief is more political than legal. A district court simply has no authority to ignore binding circuit precedent. Honest-broker lawyering would have resulted in a different brief — acquiescing in dismissal while explaining that the federal executive would seek to change binding circuit precedent. Such an approach would parallel the executive’s own approach to enforcement. Apparently, the executive believes that its role constrains it to continue enforcing a law that it believes to be unconstitutional. Yet the executive invites an inferior court in a co-equal branch of the federal government to ignore its own role.