June 13th, 2009
The Obama administration’s brief defending DOMA in Smelt v. United States is incredibly tone deaf, particularly when contrasted against the California Attorney General’s brief filed in response to Perry v. Schwarzenegger. The DOJ brief which says gays can marry anyone they want as long as it’s someone of the opposite sex is not just an insult to gay people, but an insult to the legal system’s collective intelligence. And the argument about holding costs down on Social Security and preserving tax revenue would be laughable if this were a Sacha Baron Cohen movie. Unfortunately, these are the underpinnings of the legal arguments brought before the august Supreme Court on behalf of one of the smartest Presidents to hold the high office. How could this have happened? David Link offers one answer:
There is something deeper here, though. Obama is comfortable with the cliché political rhetoric of gay equality, but this brief shows his understanding doesn\’t go a centimeter deeper. Or (most generously) that his Attorney General knows only the words and not the tune. To someone who understands gay equality as little more than a set of slogans and bromides, this brief might not have looked particularly offensive.
That, at least, is the most generous understanding I am willing to indulge – that the brief was written and/or edited by civil servants with an anti-gay inclination, and reviewed by political staff who know no more about gay equality than what they read on the President\’s website.
More Reactions to Obama Administration’s Defense of DOMA
June 12th, 2009
People are justifiably furious over the Obama administration’s DOJ brief filed with the Supreme Court defending DOMA. Here’s Pam Spaulding:
This is a President who said he is a “fierce advocate” for our rights. This doesn’t look much like an advocate, it looks more like an enemy pulling the pin on the grenade and tossing it at us. While this may not be the perfect test case for DOMA, the Obama administration, in its defense of the Act, has filed a brief that is a roadmap for every fundnut anti-gay argument against the right of same-sex couples to marry.
There’s a completely decent reason to keep DOMA in place for the time being, especially in the federal courts right now – where bad precedents could wound us in the future. But to file an actual brief re-stating some of the worst and most denigrating arguments against gay civil equality is just bizarre. They could have argued for a narrow ruling or kept the “reasonable” arguments to a minimum. What they did – without any heads up to any of their gay supporters and allies – is unconscionable. Citing incest precedents? Calling gay couples free-loaders? Arguing that our civil rights are not impinged because we can marry someone of the opposite sex? Who on earth decided that that was a great idea?
…I’m baffled by this, I really am. The content of this brief is a massive political error from an administration that is making it impossible for its gay supporters to stay supportive. What’s next? A Clintonian political ad boasting of these arguments?
Today is the 42nd anniversary of Loving v. Virginia, the Supreme Court case overturning Virginia’s ban on inter-racial marriages. The Obama people, working for the product of an inter-racial marriage, sure have an eye for irony.
Chris Geidner at Law Dork:
Even if one argues, as I often have, that a government lawyer — from the Department of Justice to state attorneys general — must defend even those laws with which one disagrees*, such a lawyer needn\’t overstate his or her case. The government lawyer defending a statute with which she disagrees needn\’t add gratuitous demeaning statements into the legal brief she files.
Unlike the Obama Administration\’s brief filed in the Don\’t Ask, Don\’t Tell case turned away by the Supreme Court this week, last night\’s filing in Smelt v. United States goes too far. It\’s offensive, it\’s dismissive, it\’s demeaning and — most importantly — it\’s unnecessary. Even if one accepts that DOJ should have filed a brief opposing this case (and the facts do suggest some legitimate questions about standing), the gratuitous language used throughout the filing goes much further than was necessary to make its case.
…Perhaps the simplest way to express my anger at this filing is to reprint what is easily the most disingenuous line of the brief, at p. 32:
DOMA does not discriminate against homosexuals in the provision of federal benefits.
Another lawyer, Dale Carpenter at the Volokh Conspiracy:
More bluntly put, the Obama DOJ is saying that DOMA doesn’t discriminate against gays and lesbians because they are free to marry people of the opposite sex. No “homosexual” is denied marriage so homosexuals qua homosexuals suffer no hardship. Gay man? Marry a woman, says the DOJ. Lesbian? There’s a nice boy across the street. It’s identical in form to the defense of Texas’s Homosexual Conduct law in Lawrence v. Texas: a law banning only gay sex doesn’t discriminate against gays because it equally forbids homosexuals and heterosexuals to have homosexual sex and because it equally allows homosexuals and heterosexuals to have heterosexual sex. This sort of formalism has incited howls of laughter over the years when made by religious conservatives. Now it’s the official constitutional position of the Obama administration.
…My point here is not to claim that the DOJ’s arguments are anti-gay, homophobic, or even wrong. Much of the brief seems right to me, or at least entirely defensible, as a matter of constitutional law. My point is only to note how much continuity there is in this instance, as in others, between the Bush and Obama administrations. In short, there’s little in this brief that could not have been endorsed by the Bush DOJ. A couple of rhetorical flourishes here and there might have been different. Perhaps a turn of phrase. But, minus some references to procreation and slippery slopes, the substance is there.
Obama says he opposes DOMA as a policy matter and wants to repeal it. Nothing in the DOJ brief prevents him from acting on that belief. He is, he says, a “fierce advocate” for gay and lesbian Americans. When does that part start?
David Link at Independent Gay Forum:
It is gratuitously insulting to lesbians and gay men, referring (unnecessarily) to same-sex marriage as a “form” of marriage, approving of congressional comparisons between same-sex marriages and loving relationships between siblings, or grandparents and grandchildren, and arguing (with a straight face, I can only assume) that discrimination against same-sex couples is rational because it saves the federal government money. There are some respectable arguments in this motion, and this kind of disrespect is offensive.
The people in the Justice Department writing this brief made so many discredited and ridiculous arguments for DOMA, I hope these were really intended to help the court see the fallacy of DOMA to persuade the court to strike it down. Otherwise my only other conclusion is that the Obama White House has thrown us overboard.
Barack Obama’s record on gay rights so far: disturbing, unsound, false, discriminatory, damaging, nonsensical. Before today you could argue that the Obama administration was too busy with the economy and the war and health care to focus on making good on his campaign promises to gays and lesbians, that Obama simply didn’t have the time to take up our issues. But you can’t make that argument anymore. The Obama administration has the time to take up gay rights issues—but only, it seems, to do harm.
I can’t take my vote back. And I’m not sure I would if I could. But I sure as hell would like to have my money back.
And Andy Towle:
Happy Stonewall anniversary everybody!