The DOJ’s buddies – Part I

Timothy Kincaid

January 27th, 2011

There is an old saying that you are known by the company you keep. So the Obama Administration’s Department of Justice must be mortified by who has filed amicus briefs in support of their defense of the federal Defense of Marriage Act.

In July, 2010, First Circuit Federal Court Judge Joseph Tauro ruled that the federal Defense of Marriage Act violated the constitutional rights of states to define marriage and of the rights of same-sex couples to have their legal marriages recognized. This ruling did not touch on rights outside of Massachusetts.

The Department of Justice appealed that decision and are arguing for the constitutionality of Congress to deny rights based on sexual orientation. They are joined by a Who’s Who of anti-gay activists such as National Organization for Marriage, NARTH and the Eagle Forum.

Considering that the administration officially wishes to repeal DOMA – or at least that portion found unconstitutional – the decision to defend DOMA is one of legal principle (though I’m not convinced of its necessity) that then of ideology. So, sensing that no one from the DOJ is likely to stand on the table and scream, “they’re filthy sinners full of perversion and disease who are defying God and should be punished,” they have plenty of friends to make that point for them.

GLAD, who is arguing the Gill case on the side of equality, had collected these amicus briefs on their website for your perusal and delight. But, on the off chance that you may not find defense of discrimination and heterosexual superiority to be delightful – or that you may not wish to lose your lunch – I’ll give you a synopsis and save you the effort.

The National Organization for Marriage was the first out of the gate. In an argument that surely would have impressed George Orwell, they declare that allowing the states to define marriage – as they have always done – would be a violation of the Tenth Amendment.

Whatever the origin of the misunderstanding of the scope of the Tenth Amendment, the court below turned the Tenth Amendment on its head. Rather than protecting against federal usurpation of powers reserved to the states, the ruling below would allow each state to impose its own definition of marriage on the federal government in a sort of reverse Supremacy Clause.

Well, I’ll say that at least it is a novel argument.

They ramble a bit about censuses and other matters under federal definition, but basically they call for a newspeak approach to federalism whereby it is best achieved by centralized federal control. Listing all of the ways in which the federal government violates the rights of same-sex couples, they present this as evidence of the government’s right to do so. They rant about bigamy and Think of the Children. This was not their best effort.

The certified hate group, Family Research Council, was up next. Nothing new or interesting here, just the same ol’ “no strict scrutiny required” and “them homos in’t got no rights”. But I’ll give Tony and crew props for perhaps the single most meaningless sentence ever entered into public record:

And no court has ever held that marriage, traditionally understood, extends to same-sex couples. [emphasis in original]

George I. Goverman, “a citizen and resident of Massachusetts and a member of the bar of the Commonwealth since 1970”, chimed in to bring up Baker v. Nelson. Perhaps he intended to file his amicus with Perry, but got confused.

He also has a unique presentation style; his argument is in Times New Roman but for case references he appears to have selected an Arial italics font. They are also different font size and don’t quite line up, leaving a rather jarring effect.

But having read countless “procreative activity” amici during Perry, this peculiar presentation was not quite enough to keep me interested. I was, however, amused that he appealed to George Orwell at his conclusion. I guess he didn’t read NOM’s paper.

Judge Roy Moore (of Ten Commandments fame) was here with his Foundation for Moral Law to “defend the unalienable right to acknowledge God as the moral foundation of our laws.”

After he informed the court that “the views of the American people as a whole from the beginning of American history through the present, have held that homosexual conduct has always been and continues to be immoral and should not be protected or sanctioned by law,” I assume that the judge will just toss this one on the pile marked “raging loons.” It seems that Moore hasn’t read a poll or opened a newspaper in the past decade or so.

But I hope the court does read Moore’s rantings. For this paragraph, if for no other:

From Biblical law and other ancient law, through English and American common law and organic law, to recent times, homosexual conduct has been abhorred and opposed; the idea of a “marriage” based on such conduct never even entered the legal mind until very recent times. Congress’s passage of the federal definition of marriage in DOMA had the force of that history behind it and several present-day interests that were asserted when DOMA was enacted in 1996, such as an interest in defending marriage and an interest in defending traditional notions of morality.

The Supreme Court has found that defending “traditional notions of morality” is not an adequate reason for enacting law. In fact, to do so would be to invite judicial rejection.

So it is definitely to our advantage to remind the court that the sole purpose of anti-gay laws – including anti-marriage laws – is based in a desire on the part of one segment of society to impose their religious beliefs upon others. It also helps that Moore quotes the Bible about abominations and such and makes a bestiality comparison. I’m surprised he didn’t channel Jonathan Edwards.

Thank you, thank you, thank you, Judge Moore for writing in and making it perfectly clear that opposition to same-sex marriage is based in religious doctrine, antipathy to gay people, and – at least in your case – baldfaced bigotry.

Bernie

January 27th, 2011

I started to read the brief from NARTH, and I swear my stomach started to churn.

Which reminds me, I have to send them another letter and ask them how George is doing?

Ryan

January 28th, 2011

Why are you calling these groups “friends” of the administration? That’s clearly not the case. Why are you implying that the DOJ solicited their involvement, so that they could say the things the administration could not? Again, an absurd notion. This is an incredibly dishonest post.

Timothy Kincaid

January 28th, 2011

Ryan,

Did you read the commentary before you began objecting?

Hint: read it again and this time don’t skim over “mortified”. Also consider the possibility of sarcasem and the fact that “amicus” is a “friend of the court”.

Also, most readers know that every single amicus who filed vehemntly HATES the president (and I’m sure the feeling is mutual). Hence the irony. And where are you getting that I implied that the DOJ invited their contibution? I’m sure they would prefer that there were no amici who filed; who wants to be linked to these loons?

But I’m not above a little jab at the DOJ. “Yeah, yeah, you say you have to defend this crap… but look who is on your side!”

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