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.


June 18th, 2009

um, get over it.

no court has ever bought the “but they can marry someone of the different sex” argument.

every argument that a court has ever bought to support same-sex marriage — to do with procreation and children — has been explicitly disavowed in this brief.

this is a common Obama tactic: give lip service to a defense to make it politically palatable, but strip the defense of any real chance of actually succeeding.

if we weren’t so short-sighted, we’d see that.


June 18th, 2009

Barney Frank is just trying to keep his comfortable position by saying a lot of blah blah blah nothing. As usual.


June 18th, 2009

Are you sure you were reading the same (in)Justice Dept. brief that the rest of us have, or were you just taking someone else’s word for it? Because you clearly didn’t read the rhetorical gay bashing that I read. It’s always nice on how we can count on Uncle Barney to sell us out when it suits his needs.


June 18th, 2009

Barney Frank is, and always was, a mean, nasty, self-absorbed SOB (like most politicians), and I have that on good authority from friends who have worked with him. The fact that he is gay should be an embarassment to the entire gay community.


June 18th, 2009

Comparing marriage equality to incest and pedophilia is unacceptable. Obama and his Justice Department don’t get off the hook for that one until Obama signs the repeal of DoMA. This holds regardless of whatever deal Rep. Frank made with Obama. I am neither party to the Obama/Frank agreement and am not bound by it.

Obama’s Justice Department has to submit a brief on June 29 in the Massachussetts case. God help him, if the pedophilia and incest references are still there.


June 18th, 2009

I think this post really needs to be read by everyone on this site before coming to the conclusion that John Aravosis–and apparently Box Turtle–did before passing on further misinformation about what was or was not in this brief.

I don’t excuse Frank for anything, I just don’t think that bad info needs to continually be bandied about by this blog.


June 18th, 2009

@Rossi: It was Barney Frank who supposedly didn’t read the brief before making his initial statement…many others besides Aravosis and BTB folks have read it and come to their own conclusions. But as he’s a lawyer, I find it very hard to believe his story. It’s far more likely Obama promised him some goodies last evening, which may or may not have anything to do with us.


June 18th, 2009

In my last comment, I meant to say “as *he’s* a lawyer.

Timothy Kincaid

June 18th, 2009

Barney Frank has always placed Democratic Party interests far far FAR higher than the interests of the gay community.

In 1990 John Silber ran for governor of Massachusetts against William Weld.

Silber was a homophobe who, as president of Boston College, had refused to let the college’s non-discrimination clause include sexual orientation – comparing homosexuality to bestiality and pedophilia. He ordered that a B.U.-affiliated high school academy disband its gay-straight alliance. In 1992, he told Newsday “Decent parents don’t even discuss [with their children] the possibility that there are homosexuals.”

While much of this occured after 1990, his reputation as an anti-gay activist was well established at that point. The MA gay community was horrified when Silber got the Democratic Party nomination.

In contrast, William Weld was very liberal in his approach to gay citizens. He appointed dozens of gay people to his administration and fought for a gay-inclusive Republican Party. After marriage equality came to MA, he officiated at the marriage of his former Chief of Staff.

Again, many specifics occured after the election, but there was no confusion about which was the pro-gay candidate and which was the raging homophobe.

Barney Frank endorsed John Silber, the Democrat. Party affiliation was FAR more important to Frank than gay rights. I have never trusted him since.

I see this as nothing more than a continuation of Frank’s priorities.

Timothy Kincaid

June 18th, 2009

I just don’t think that bad info needs to continually be bandied about by this blog.


That’s a very stong accusation. We do not ‘ continually bandy about’ bad information at this site.

If you think that our opinion or reasoning is faulty, you are welcome to present your opposing viewpoint. However, if you think that our information or facts are incorrect, please be prepared to provide evidence to the contrary.

Jim Burroway

June 18th, 2009


To be clear, I specifically disavowed any notion that the DOJ brief compared homosexuality to incest or sex with children, as other bloggers were reporting when the DOJ came out. I made that very clear in the very first post that I wrote on this subject. I got a bit of flack for it from one powerful blogger but I did not back down. I stand by that assertion. On that one single point, I guess you could say that Barney Frank and I agree.

But legal experts are divided over whether the Obama administration was compelled to defend DOMA. And those who say the DOJ was required to defend DOM are divided further over to what extent that defense should take.

Timothy Kincaid

June 18th, 2009

Those who are convinced that the Feds were required to defend the law as it stood may wish to consider California’s defense of the constitutionality of Proposition 8. Rather than the State defending the law, it appeals to the Court to tell it whether or not the law is Constitutional.

LA Times

In declining to take sides in the suit, Schwarzenegger said the case “presents important constitutional questions that require and warrant judicial determination.”

“In a constitutional democracy, it is the role of the courts to determine and resolve such questions. . . . ,” the governor said late Tuesday in his legal reply to the suit. “The Administration encourages the Court to resolve the merits of this action expeditiously.”

Thomas Kraemer

June 18th, 2009

I just read the original page by U.S. Congressman Barney Frank, “PRESS RELEASE: Congressman Frank Corrects Media Reports on his Response to DOMA Brief,” U.S. Jun. 17, 2009 and I was shocked to read that Congressman Barney Frank thinks the DOMA case is one that is being rightfully decided on a “rational basis.” It shows that Barney Frank doesn’t understand the U.S. Supreme Court’s legal decisions on minority rights over the last 50 years.

Gays should be treated legally as a “suspect class” deserving of a “higher scrutiny” by the court just like they do in cases involving the rights of black people or religious people. Anything less suggests that being gay is a choice like deciding to get a fishing license.


June 18th, 2009

First of all, I have followed GLAD for a couple of years. They are as good as it gets. They don’t file lawsuits unless they are very sure they can win and the courts can’t dismiss them without great public embarrassment. I’d put money on the Gill lawsuit succeeding.

The defense brief in the Smelt lawsuit is all the currently even slightly viable anti-marriage assertions packed into one document. Admittedly, there’s a chance the courts will endorse all or most of those assertions in an opinion to uphold DOMA. But there’s also a good chance the succession of judges will shred most of them, perhaps all of them, along the way. That will do what all the many different state court verdicts haven’t really, which is winnow down the arguments the antimarriage side can offer for the record. It could kill off the stupid procreation and childraising canards as arguments in the public arena.

Barney Frank represents a nearby House district and is the most visible member of our House delegation. (My Rep, Ed Markey, is busy setting himself up for the Senate seat held by Ted Kennedy.) I think Barney just doesn’t care about things at that level, i.e implicit insult. He cares about outcomes and in your face kinds of insult.


June 20th, 2009

kinda greasy, huh?

Scott P.

June 20th, 2009

I used to really like Barney Frank. His wit, his willingness to give as good as he got, most of the time even better, but now… now it’s time for him to go, he’s let the office go to his head.

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