I was travelling last weekend so I missed the news about the DOJ filing a brief to dismiss the Smelt case against DOMA. I can understand why people are upset, and do agree that some of the arguments were gratuitous (more on that after the jump), but first I have to ask: what planet are some of us living on?
I've posted several times about why I think the Boies and Olson case to overturn Prop 8 in federal court is a bad idea put together by a mostly-straight group of Hollywood folks, but I usually saw responses along the lines of this both here and elsewhere:
Go on with your bad selves, Olson and Boies! It's equality plain and simple. Enough pussy-footing. Lamdba can suck it.
That's legal advice we can count on.
What I fear will happen in that case is that various briefs along the lines of the one the DOJ filed to defend DOMA will be written up to defend Prop 8. And then a trial judge, either because she doesn't want to rock the boat or because she legitimately agrees, will uphold Prop 8. If it makes it to the Supreme Court, those same arguments in that brief will be made in front of those justices, and a majority of them will agree with them to some extent. And Scalia or someone else who thinks like him will write up a majority opinion with those arguments in them, and state supreme courts that may have ruled in our favor in the future will have another big reason not to.
I will say, first and foremost, that I consider it a good thing that his DOJ chose to defend the law as it stands. They're not legislators in the DOJ, and they can't just decide which laws they want to uphold based on either their personal beliefs or Obama's campaign promises. Yes, there have been instances where an administration has decided not to defend a law from a constitutional challenge, but that's when it comes to laws so blatantly unconstitutional, either in their defiance of the Constitution or their attempt to revamp settled case law. DOMA isn't that obviously unconstitutional, no matter what we believe the 14th Amendment says.
And if the administration just decided not to defend any law it didn't like, or not to execute any that it didn't like, it would take all of about two seconds for the next Republican administration to start using it against us. Suppose an ENDA does get passed, and President Palin in 2013 is charged with defending it from a constitutional challenge that holds that it violates "freedom of religion." Do we really want her to have the power to just say, "Also too, I campaigned against those sorts of laws, so I'm just not going to let DOJ defend that law... you betcha!"? Sure, the DOJ not defending a law doesn't spell an end to it, but it doesn't speak much for our country's democracy if the DOJ can act like it has veto power over any law, past or present.
One of the chief complaints the left had of the Bush administration was that they picked and chose which laws they wanted to follow, on important issues like domestic spying and torture. They even had the DOJ write up briefs about how what they did was legal... when they remembered. Otherwise, they just had Congress pass a law later to give immunity to everyone involved. While I do think it would behoove the Obama administration to send a message that even the President and the White House aren't above the law with prosecutions of Bush Administration officials, I'm still glad that he isn't expanding such lawlessness by just picking and choosing which laws he wants to uphold. (It's something.)
Part of the problem is that movement conservatism has so politicized the law, with their calls to stop "activist judges," their referendums that put people's rights (and not just LGBT people's) on the ballot, and Bush's political firings in the Justice Department, that I think it's been contagious to everyone else. Now we just expect for laws we don't like not to be enforced or defended or upheld on the basis of our not liking them or our personal opinions on their constitutionality. But if we do seriously oppose "mob rule" in favor of the rule of law, this is kind of what it'll end up looking like: people will be forced to defend positions they don't necessarily agree with or aren't politically smart for them to defend.
People have been talking about a few cases in recent administrations where the law wasn't defended, but the ones I've seen mentioned all referred to cases in which Congress pretty flagrantly disregarded settled constitutional law, and in my layperson's opinion, DOMA doesn't. There is no Supreme Court case that has ruled that discrimination against gays is illegal. There's no federal ruling that says that we're a suspect class. And there is no case that says that marriage is a fundamental right that must be granted to everyone (before you bring up Loving, remember that the Court specifically mentioned the fact that there was a higher level of scrutiny for discrimination against interracial marriages because of the 14th Amendment's historical relationship with racial discrimination. There's no such relationship established for sexual orientation discrimination).
The only case I've read about these past couple of days where the DOJ didn't defend a law, and not because it violated existing Court rulings, was the famous Metro Broadcasting case then-acting-AG John Roberts refused to defend. The case claimed that a racial diversity program was unconstitutional, basically, because it discriminated against white people, and John Roberts agreed and decided to file a brief against the law. Personally, I find that offensive and scary that a law designed to help a minority group could be put at risk of being overturned just because one single unelected official decides he doesn't like it (George HW Bush actually signed it into law and appointed FCC commissioners who supported the program), and I hope that future Republican administrations don't make decisions like that.
That said, the language and arguments the brief used was indefensible in many parts. John Aravosis said, "It reads as if it were written by one of George Bush's top political appointees." That's probably because, as Adam B pointed out, it's a cut and paste job from briefs filed to defend DOMA in Bush era cases. That's sad and lazy - there are other ways to defend the law that don't descend to pretending like two dudes or two ladies marrying is something so horrific it'll destroy the country. (A lot of people have mentioned sticking to arguments related to standing, and I assume that actual lawyers working in a team could have come up with other creative solutions.)
Or maybe not. Maybe the only way to defend something like DOMA is through blatant homophobia. And since blatant homophobia isn't unconstitutional, the Obama administration can expect more hate like this until it does something to take these constitutional challenges off the table, like pass legislation to repeal DOMA.
One more thing, just as a sidenote when it comes to these cases people file that are strategically bad ideas: briefs like these are the result of ill-advised cases, and ruling opinions that sound like these briefs are the ultimate impact. The Smelt case was a bad idea from the beginning that the gay activist community opposed, but the plaintiffs and their lawyer went ahead with it anyway. If you think that this brief actually hurts the fight for LGBT rights instead of just illuminating what's going on in the administration, then I hope that you'll agree that sometimes these cases are a bad idea and that we do need to think strategically instead of shouting "JUST DO SOMETHING FOR MY FULL EQUALITY NOW" whenever a strategy/tactics discussion comes up.