Alex Blaze

The Justice Department's Anemic Defense of DOMA

Filed By Alex Blaze | January 14, 2011 8:30 AM | comments

Filed in: Marriage Equality, Politics
Tags: DOJ, gay marriage, lesbian, LGBT, marriage equality, queer, smae-sex marriage

The Justice Department has filed for an appeal of the Tauro decisions in Gill vs. OPM and Massachusetts vs. US that struck down provisions of DOMA last year. Chris Geidner sums up Justice's arguments:

doma-protest.jpg1. Congress Could Have Rationally Concluded That DOMA Promotes A Legitimate Interest in Preserving a National Status Quo at the Federal Level While States Engage in a Period of Evaluation of and Experience with Opening Marriage to Same-Sex Couples.

2. Congress Could Reasonably Conclude That DOMA Serves a Legitimate Federal Interest in Uniform Application of Federal Law Within and Across States During a Period When Important State Laws Differ.

3. Congress Could Reasonably Have Believed That by Maintaining the Status Quo, DOMA Serves the General Federal Interest of Respecting Policy Development among the States While Preserving the Authority of Each Sovereign to Choose its Own Course.

In other words, they aren't making a lot of the explicitly homophobic arguments in favor of DOMA that got the Justice Department in trouble with the public in 2009 with their motion to dismiss the Smelt case against DOMA (interesting historical note: the Smelt challenge was eventually dismissed on technical grounds without a peep from the community after the wailing and rending of garments over the brief, which I still consider to be one of the defining moments in the LGBT movement as it completely revealed the nature of our affected and easily-manipulated outrage).

It's nice, though, that the Justice Department seemed apologetic about the fact that they were defending the law in the motion:

"Indeed, the President supports repeal of DOMA and has taken the position that Congress should extend federal benefits to individuals in same-sex marriages," DOJ writes in the appeal. "But a consensus behind that approach has not yet developed, and Congress could properly take notice of the divergent views regarding same-sex marriage across the states."

"The Department of Justice has long followed the practice of defending federal statutes as long as reasonable arguments can be made in support of their constitutionality, even if the Administration disagrees with a particular statute as a policy matter, as it does here," government lawyers write. "This longstanding and bipartisan tradition accords the respect appropriately due to a coequal branch of government and helps ensure that the Executive Branch will faithfully defend laws with which an Administration may disagree on policy grounds."

Maybe this is because I'm not a lawyer, but I'm not sure why the Justice Department has to appeal. They defended the statute at trial, they lost, and the law was declared unconstitutional by a federal official and legal scholar who was appointed by the executive and approved by the legislative branch. They could just accept Judge Tauro's arguments about its unconstitutionality.

Moreover, "defending every law" doesn't equate to "exhausting every appeal." Do they have to make arguments, as they argue, "as long as reasonable arguments can be made in support of [DOMA's] constitutionality"? Or could they, like Jerry Brown did with the Prop 8 challenge, defend it at trial and then accept the trial judge's ruling?

Because the arguments don't even sound "reasonable" to me. The first argument, that there has to be "a Period of Evaluation of and Experience" with same-sex marriage, well, I suppose I can't think of a reason there has to be that period of evaluation and why the nearly seven years since Massachusetts started allowing same-sex marriages doesn't count.

The second argument just presented says that the goal is a "Uniform Application of Federal Law" when the entire point of the law is to discriminate against same-sex couples. The law doesn't protect the "Uniform Application of Federal Law" when it says some legal marriages get federal protection while other don't. The Gill decision in fact said just that, that DOMA violated equal protection by denying same-sex couples rights without due process protection.

The third argument is about state sovereignty, but the entire point of Massachusetts was that DOMA violates state sovereignty. It's hard to see how the federal government, in not respecting marriages the states grant, is protecting the states' sovereignty.

I guess the Justice Department isn't really saying that those arguments are "reasonable," but that it's "reasonable" to argue that "Congress Could Reasonably Conclude" those arguments are true, but, really? Is that the standard the Justice Department uses across the board when determining which federal challenges to appeal? I doubt it.

But it's better than the arguments that Justice made to defend Smelt:

Next, the brief indicates that denying gay people our equal rights saves money[...]

The government goes on to say that DOMA reasonably protects other taxpayers from having to subsidize families like ours.[...]

The government again ignores our experiences when it argues that DOMA ยง 2 does not impair same-sex couples' right to move freely about our country as other families can[...]

As a matter of constitutional law, some of this brief does not even make sense:

DOMA does not discriminate against homosexuals in the provision of federal benefits.... Section 3 of DOMA does not distinguish among persons of different sexual orientations, but rather it limits federal benefits to those who have entered into the traditional form of marriage.

In other words, DOMA does not discriminate against gay people, but rather only provides federal benefits to heterosexuals.

I cannot overstate the pain that we feel as human beings and as families when we read an argument, presented in federal court, implying that our own marriages have no more constitutional standing than incestuous ones:

And the courts have widely held that certain marriages, performed elsewhere need not be given effect, because they conflicted with the public policy of the forum. See e.g., Catalano v. Catalano, 170 A.2d 726, 728-29 (Conn. 1961) (marriage of uncle to niece, though valid in Italy under its laws, was not valid in Connecticut because it contravened public policy of th[at] state."

Which was an improvement over the Bush-era Justice Department arguments for DOMA:

Its court filing steered clear of the justification of the law it had offered under President George W. Bush: that it promotes a traditional form of marriage best suited for procreating and raising children.

Instead, the Obama administration argued that the law preserves long-standing state authority to define marriage while saving taxpayer dollars.

With societal attitudes in flux, the department said, the law adopted "a cautious policy of federal neutrality towards a new form of marriage," allowing states to expand the traditional definition of wedlock but declining "to obligate federal taxpayers in other states to subsidize a form of marriage their own states do not recognize."

It's progress of a sort that Justice's defense of DOMA has gotten so anemic.


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Alex, as I read your post, I was waiting for you to point out that the Obama administration might be just playing politics -- surely you know by now that Obama is a genius at pretense.

My take is that they don't want to be accused by the fundies, the Tea Partiers, and the right-wing nutjobs (Sarah Palin fits in there somewhere!) that the Obama administration didn't aggressively defend DOMA. Hint: There is a presidential election (re-election?) coming up in 2012.

So instead ... the Obama admin files their appeals brief ... but they delibertely do a piss-poor job at it. That way, at least you have to a be lawyer, or at least have an IQ above 100, to understand what is going on and criticize the Obama administration's "poor" work.

(This qualification, lawyers + people with IQ=>100, eliminates a real bunch of people -- enough to keep this criticism from becoming a major campaign issue. OTOH, right-wingers love to be sheep to troglodyte pundits such as Limbaugh and Beck, so maybe they will just mindlessly mouth whatever their gurus on Fox News tell them to get upset over. Time will tell, but Obama was smart to take this chance.)

Now, Alex, I kindly have a different take on this point. You quote and you say:

As a matter of constitutional law, some of this brief does not even make sense:
DOMA does not discriminate against homosexuals in the provision of federal benefits.... Section 3 of DOMA does not distinguish among persons of different sexual orientations, but rather it limits federal benefits to those who have entered into the traditional form of marriage.

In other words, DOMA does not discriminate against gay people, but rather only provides federal benefits to heterosexuals.

I have a different interpretation: I think they are saying that DOMA does not discriminate against gay men and lesbians, because it they want the federal benefits of marriage they should just be sure to marry someone of the opposite sex! It's a subtle, roundabout way to say, "If you want the federal goodies, then you have to follow the federal rules whether they fit you or not." Unfortunately, Liza Minelli can only marry one gay man at a time. The argument is clearly ridiculous.

But I have seen this argument before: About 1977 or so the town of Bloomington, Indiana gutted their first HRO that included sexual orientation by saying that a disco bar can expel two men who insist on dancing with each other -- it doesn't matter if the men are gay or straight, it is only a rule saying that men can't dance together! (Cynically referred to as the "Backstreet Five", four men and one lesbian brought an HRO challenge against the actions of the disco bar. One of the four men was Paul Phillips of the singing group Romanovsky and Phillips, and I was another. I mention my personal involvement only to assert that I know of which I speak.)

This DOMA appeal is one instance where I think the GLBT movement should go along with Obama's game-playing -- except for those of us who genuinely so upset with Obama that they don't want him re-elected to a second term. On that, I only say, To each his or her own.

For the rest of us who realize that Obama, warts and all, is likely to be the best president that GLBT America can realistically get in 2012, let's not generate any flak over the fact that Obama filed any appeal at all; instead, let's recognize this brief as the fiendishly cherry-flavored poison pill to DOMA that it really is.

What? You disagreed with Joe Solmonese? Don't you know he's king of the faggots? (Or is that David Mixner? Can I nominate myself? Maybe when they ask who the king is one day, we'll all stand up.)

Yeah, good point, although that sort of logic is just so divorced from the reality of sexuality that I think that HRC is justified in saying that Justice wasn't making sense. Sure, in an abstract ideas-based world they're right, but in the reality we live in it's just laughable.

About the politics, sure. They did it with DADT repeal as well. Unfortunately, Democrats are always worried about that sort of politics when Republicans never are. If they announced today that they weren't going to appeal (or right after the 2010 elections, when people were waiting for a response), how many people would have kept that in their minds to vote on two years from now? With a huge recession, attacks on social security, etc., two wars, possible terror attacks, and who knows what other problems we're going to face in the next two years? Honestly, I think they're, once again, playing too far on the cautious side and thinking that it's politically smart.

Sure, Alex, I get your point ... this strategy might be cagey, but it does also shows that someone's political gonads are undersized, if present at all.

As for who would remember two years from now if the DOMA challenge were not appealed? ... I remind you that donkeys can get over things pretty well ... but elephants never forget.

P.S. King of the Faggots? It would sound great in latin ... Josephus washingtonimus rex faggotium ... Father Tony, can you help us out a little here?

Aubrey Haltom | January 14, 2011 2:15 PM

@Alex,
I agree with much of the above - I'm not really sure why the Feds have to appeal.
The whole resonse is something of a question-mark to me.
Though I'm not convinced that an 'anemic' appeal is much better than a grossly prejudicial one.
But why the comment about the "affected and easily-manipulated outrage"?
I remember reading in various posts (prior to the 2009 brief) that the Smelt case was a very weak one. No one was really surprised (at least in what I read) that it was dismissed.
But the DOJ's language in that June 2009 brief was pretty, what?, incendiary? (Or is that an affected response as well?)
What would have been a better response, in your opinion, than this 'outrage'?

The outrage was not because of the language. The outrage was because the Justice Department was defending DOMA at all in that case. At least that's what most people were saying back then (I was one of the few that said that I was more troubled by the language than I was at the mere fact that the law was being defended in court because the Justice Department does, generally, defend federal laws except in certain circumstances that DOMA didn't fulfill, at least according to the majority of legal scholars I read from at the time):

http://www.bilerico.com/2009/06/thoughts_on_the_doj_doma_brief.php

I was definitely the minority then.

The "easily manipulated" part was the fact that no one then later got mad when Justice defended DOMA in cases that actually counted. The Smelt case was better for certain people in LGBT media, who needed an example of homophobia right then to fund-raise off of.

As for outrage itself, I think outrage is rarely a good idea (because if we're always outraged, then when really bad things happen we don't know how to show real outrage), and I think that pushing Americans to be outraged over politics in the post-Cable news climate is always a bad idea. People are moving from one outrage to the next, addicted to the feeling of outrage and the moral superiority that accompanies it, fully encouraged by certain figures in the media who profit off of outrage itself and not off actual solutions to real problems.

IMHO, the response should have been to get organized instead of outraged, to get people to work in ways that are constructive (like getting people concerned and calling/rallying/organizing around DADT repeal an ENDA which everyone and their brother knew were going to have to happen before DOMA was repealed).

But outrage is just too much fun, I guess. It wasn't even the type of outrage people could argue moved people to action, since it was outrage over a motion to dismiss a constitutional challenge that everyone knew was going nowhere. That went nowhere, but then no one cared about when it was actually dismissed.

Like, anger over the idea that Justice wanted it dismissed, ho-hum over the actual dismissal. What's up with that?

Regan DuCasse | January 14, 2011 5:10 PM

I love that woman's sign! It's the gospel truth!