June 15, 2009
Defending Obama's indefensible defense...
Posted by: Chris
... of the Defense of Marriage Act. OK not really. But at the risk of being labeled (once again) as an Obama apologist, I want to add a bit more context to the excellent analysis done by Andoni and others of the DOJ's brief defending DOMA.
Like most of you, I was profoundly disappointed by the filing, and my heart sank even further when I read some of the arguments used by the Obama Justice Department in favor of DOMA's constitutionality. The analogy to incest, in particular, was completely beyond the pale. Although (once again) it's not fair to say the brief directly compared same-sex relationships to incestuous relationships, it is ludicrous and insulting to suggest there is no meaningful legal distinction between laws that don't exclude gays from marrying and laws that permit an uncle to wed his niece.
It was also patently irrational to argue that DOMA doesn't discriminate against gay Americans because we, too, can enter into "traditional marriages." Its unfathomable that lawyers for a president who is the product of an interracial marriage would use an argument that was rejected some four decades ago in Loving v. Virginia. In that case, the Supreme Court rejected the state's argument that anti-miscegenation laws weren't racist because both whites and blacks were equally restricted to marrying within their own race.
Even so, once my blood pressure came under control, I cannot join those who see the DOMA brief as a "betrayal" by President Obama or even as a sign that his administration will be "throwing us under the bus" like the last Democrat occupant of the White House did. Here's why:
First and foremost, candidate Obama did not make any commitment that I'm aware of to refuse to defend the constitutionality of the Defense of Marriage Act. That would have been an extraordinary promise for any presidential candidate to make about any piece of duly adopted legislation, and yet I don't know of a single time the question was even put to Obama or his competitors, or where he was even asked the more general question of whether DOMA is unconstitutional.
There's obviously a big difference between believing a law is wrongheaded or unfair or even discriminatory, on the one hand, and believing it is unconstitutional, on the other. Since Hillary Clinton defended her husband's decision to sign DOMA into law, and only favored half-repeal, it's fair to conclude she agrees with the Obama DOJ that DOMA's deficiency is a matter of policy, not constitutionality. Ditto the Human Rights Campaign, since "the nation's largest gay rights group" chose only to score the candidates on whether they support DOMA's half-repeal -- thereby equating Clinton's views with Obama's.
If this question of DOMA's constitutionality is so crucial and fundamental, then why did everyone -- all of us -- fail to raise it during the eons-long presidential campaign? We thought about DOMA enough to make a big deal -- or not -- about half-repeal vs. full repeal, and others questioned Obama about the positions the DOJ might take in defending Don't Ask, Don't Tell in court. So why didn't we ask for a commitment about refusing to defend DOMA as well? And if we didn't, maybe we should take a deep breath before accusing Obama of treason for how his lawyers ultimately answered our unasked question -- in a lawsuit that most gay legal experts wish had never been brought and hopefully will get dismissed.
A spokesperson has explained the DOJ brief saying that, "As it generally does with existing statutes, the Justice Department is defending the law on the books in court." John Aravosis makes a good point by digging up examples of the DOJ under previous presidents declining to defend the constitutionality of certain statutes in court, but rather than proving the Obama administration is "lying," he accomplished the opposite. Four examples out of thousands hardly disproves the claim that "generally" the DOJ defends laws passed by Congress and signed by the president.
Let's also pause long enough to consider whether we want to advocate the politicization of the Justice Department. Let us recall from the debate over the Bush administration's "enhanced interrogation techniques" that the DOJ has an independent obligation to weigh questions of legality and constitutionality. Those decisions ought to be made on the basis of the law, not politics. It's not fair for us to switch sides on that argument when it suits our cause, however worthy.
Please, please don't take away from these observations any hesitation on my part about the constitutionality of DOMA. As someone whose entire life has been torn apart for years now because of this single federal law, I know its destructive force, and for years counted myself among those who see DOMA as a gross affront to the Constitution. Nonetheless, I think it's a bit too easy to condemn President Obama for failing to anticipate a complicated legal question that our own advocates either also failed to anticipate or decided was unworthy of raising during the presidential campaign.
Speaking of our own advocates, I will say it was refreshing to see Joe Solmonese at HRC actually speak out on the issue, even if he ultimately cops out by attempting to evade any institutional or personal responsibility for the mess we find ourselves in. Solmonese's impassioned letter to Obama calls on the president to "put your principles into action and send legislation repealing DOMA to Congress."
Is that the way Washington works, Joe? Are we really to believe that this consumate lobbyist -- who couldn't resist bragging about his own White House access in the same self-serving letter -- completely missed that "Schoolhouse Rock" episode on how a bill becomes a law?
Solmonese and his Beltway minions know damn well the president doesn't "send" legislation to Congress. Even on top administration priorities like the stimulus package and health care reform, the bills are drafted by legislators -- hence the name -- with public and private input from the White House throughout the process, including what importance the president puts on passage.
If pressure is to be brought to bear, and indeed it should, then it ought to focus first on the other end of Pennsylvania Avenue. So when the mayors of San Francisco and Los Angeles raised a public ruckus with the president over DOMA this weekend, HRC should passionately remind them that not one of the Democrats in Congress from these two gay meccas, including a certain Speaker of the House, has introduced, much less given priority to, a bill to repeal DOMA.
Why is it, then, that in the 13 years since passage of the so-called Defense of Marriage Act that HRC and its friends in Congress have failed to "put principles into action" and draft repeal legislation, identify House and Senate sponsors and co-sponsors, pressure for hearings or otherwise shepherd the bill through the legislative process?
I will answer my own question. Because anyone with even a passing familiarity with gay politics in our nation's capital knows that HRC long ago agreed with its cronies in the DNC and on the Hill not to even begin pressing for DOMA repeal until a whole laundry list of other (far less important and less controversial) legislation is adopted.
With all of this context in mind, I would humbly suggest that we take each of Andoni's five examples of direct action and aim them also (not instead) at your member of Congress, the Democratic leaders in both the House and the Senate, and our dear friends at the Human Rights Campaign. Has either Nancy Pelosi or Harry Reid even committed publicly to repealing DOMA, or half-repealing it?
Let's demand that HRC publicly release draft language for repealing DOMA and point us to members of Congress we should lobby to take on leadership roles in sponsorship. (And how about federal civil unions legislation while they're at it!) With those pieces in place, pressure on the White House can be much more concrete, and all this righteous anger might move the ball forward toward relationship equality.
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