Alex Blaze

Thoughts on the DOJ DOMA brief

Filed By Alex Blaze | June 16, 2009 4:00 PM | comments

Filed in: Marriage Equality, The Movement
Tags: Barack Obama, brief, Department of Justice, DOMA, ENDA, Eric Holder, john roberts, law, president palin, rule of law, smelt, supreme court

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.

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So, I guess in this you are absolving HRC for supporting a not quite fully inclusive ENDA.

I don't get the connection, other than "some people were pissed off about one, and some people are pissed off about the other."

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.

OK, but that was a different part of the post. I wasn't saying that the DOJ should have defended DOMA because of strategy at all.

The ENDA split, while framed as a strategic decision, was about dividing the movement so that some could get ahead. There are strategic decisions that we'll have to make, and saying that some lawsuits challenging DOMA are better than other lawsuits that challenge DOMA isn't at all the same thing as saying that transgender people should be left behind on the ENDA.

But I really don't see the connection, because this case has been called a bad idea by just about everyone working on marriage through the judiciary and the result was this brief. We do need to think before we act or else we won't get anything useful done.

Maybe the problem is the assumption that it is one movement. There are plenty of T folks who oppose "gay" rights. And there are many GL folks who don't give a hoot about T issues.

I suspect that the brief is DOJ's work alone. The official government stance (as voiced by the DOJ) would naturally be to argue in favor of existing law, no matter how repugnant. They are, after all, the government's lawyers, not President Obama's. If the DOJ's position from the beginning has been to argue for DOMA, their job is to continue to do so until the case is resolved. My guess is that the administration wants to just let it play itself out, see where it goes and then play their hand. That could actually be Obama's pretext for taking some action to reverse the government's position after a ruling unfriendly to us or, if a miracle should occur, he can simply accept the Court's rejection of DOMA. Waiting until the parties have presented their respective arguments and the Court rules is actually the prudent course of action. Politically, it sets the stage very nicely for the President.

Some commenters (disgruntled republicans?) seem awfully eager to embarrass Obama directly by putting the words of DOJ lawyers into the President's mouth; as if Obama wrote the brief himself. That's disingenuous and not how jurisprudence works. Once a case is initiated and arguments presented, it is very difficult to switch course. Sometimes the legal process, executive action, legislative action and political action must be allowed to operate seperately.

Let's criticize the President when HE has done something against us.

Scott Kaiser Scott Kaiser | June 16, 2009 11:42 PM

Excellent analysis Alex.

Blaze on, Alex Blaze! I know this view isn't always popular, but a bit of politically-savvy pragmatism is how you achieve results. Thanks for saying it in such a compelling way. Lawyer's have a maxim: "Bad facts make bad law." And so do poorly-timed and poorly-executed legal arguments.

I am more persuaded by AmericaBlog, since a couple of them are evidently, you know, lawyers, and a guest blogger was a member of the previous administration. The concept of credibility comes to mind...

Or you can check out Adam B who's, you know, a good lawyer, linked above. And Laurence Tribe, who's studied LGBT law more than most, who says the same things, pretty much, as I did:

honestly I find Aravosis's pronouncements on the law, and not just here, to generally be reckless and biased. He has his own motivations.

The article is too long, but is right. And the issue of "suspect class" was one Don Slater, co-founder of ONE/HIC pointed out years ago, and he was smarter than most lawyers.

It is great to hear this discussion brought on by legal issues of DOMA an DADT, and it is about time, as we discussed these issues, and correctly in ONE and Tangents and newsletters in the 60s.

Mario Democrat | June 17, 2009 1:23 PM

"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."

This seems like a complete contradiction to me. By not investigating the Bush administration, this administration IS picking and choosing which laws it wants to uphold. DOMA- we need to follow the rule of law. War crimes- let's look forward, not backward. Where's the logic in that?

It's all politics, and the focus on legalese is just a means by which to let the Obama administration off the hook. Pragmatists would not argue with the first half of this article; the problem is not with the current defense of DOMA, it's the way in which it was done; the language of the brief is indefensible, and it's not the first trangression of this administration. Lack of action is one thing, but from the Bigotry Tour of South Carolina in 2007 to putting forward Rick Warren's bigoted agenda as a valid voice and worthy of a seat at the table, this administration, this person and his team, have slighted, denigrated and disparaged us enough that we can conclude this will be their policy on civil rights for gays. Enough apologizing. It's time to call it as we see it.

Absolutely. It's like the fiscal conservatives: budget deficits are a problem when the government is helping poor people, but the war? psh.

I'd absolutely like for the white house to follow the law and prosecute bush era folks for their war crimes.

I think what's bothering me about the Obama administration is that there's no sign whatsoever of any kind of plan for queer issues. None. Nothing on DOMA or DADT, and now a brief that makes not only claims on constitutional grounds, but the kinds of claims that insult queer people. I'm with you about filing ill-advised DOMA lawsuits, especially with a conservative Supreme Court, but the blameworthiness of the filers shouldn't let Obama or the DOJ off the hook.