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Posts for June, 2009

Barney Frank Was Against The DOMA Brief Before He Was For It

Jim Burroway

June 18th, 2009

There are three openly gay representatives in the U.S. Congress. As of Tuesday, we saw statements from two of the three — Rep. Tammy Baldwin (D-WI) and Rep. Jared Polis (D-CO) condemning the Justice Department’s brief defending the “Defense of Marriage Act,” and we wondered when Barney Frank (D-MA) was going to issue an official statement.

Yesterday, it appeared that Frank was going to add his voice in condemnation to the brief as well. He told the Boston Herald:

“I think the administration made a big mistake. The wording they used was inappropriate,” Frank (D-Newton) said of a brief filed by Obama’s Department of Justice that supported the Defense of Marriage Act. … “I’ve been in touch with the White House and I’m hoping the president will make clear these were not his views,” Frank said.

But by the time Frank got around to releasing an official statement, he had a change of heart:

“When I was called by a newspaper reporter for reaction to the administration’s brief defending the constitutionality of the Defense of Marriage Act, I made the mistake of relying on other people’s oral descriptions to me of what had been in the brief, rather than reading it first.  It is a lesson to me that I should not give in to press insistence that I comment before I have had a chance fully to inform myself on the subject at hand.”

“Now that I have read the brief, I believe that the administration made a conscientious and largely successful effort to avoid inappropriate rhetoric.  There are some cases where I wish they had been more explicit in disavowing their view that certain arguments were correct, and to make it clear that they were talking not about their own views of these issues, but rather what was appropriate in a constitutional case with a rational basis standard – which is the one that now prevails in the federal courts, although I think it should be upgraded.”

This, of course, is the same brief which suggests that DOMA doesn’t discriminate against gay people because gay people are free to marry anyone they want, as long as its someone of the opposite sex. And besides, the brief continues, if it did discriminate, that’s okay too. Maybe Congress just wanted to save a few bucks in Social Security benefits, and that’s a good enough reason right there — never mind that we pay the same taxes into the fund just like everyone else.

But then, Barny Frank also doesn’t want anyone to spoil the DNC fundraiser for next week. “There are a lot of people who aren’t boycotting. I think it’s a mistake to deny money to the DNC,” he told the Boston Herald.

But Frank does point to another lawsuit filed by Gay and Lesbian Advocates and Defenders in Boston’s Federal District Court behalf of eight married couples and three surviving spouses from Massachusetts who have been denied federal legal protections available to spouses. That GLAD lawsuit, Gill v. Office of Personnel Management challenges only Section Three of DOMA, the section which bars the federal government from recongizing same-sex marriages or providing benefits to same-sex couples

Gill v. OPM is considered a much stronger suit than Smelt v. United States, which the recent DOJ brief addresssed. The Justice Department is required to answer GLAD’s lawsuit by June 29. We’ll be watching that one very closely.

Meanwhile, Frank, along with three other Democrats and four Republicans will introduce a revised Employment Non-Discrimination Act next week in Congress. Unlike last year’s bill, this one includes transgender people in its coverage.

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