Yes, WE Can (But YOU Can’t)

I believed in you, Barack Obama.

Yes, I knew you were only a human being, not the savior of our nation, no matter how many giddy songs we sang and tears we shed when you were inaugurated in January. But still, I believed you were a nobler and wiser person than the average politician; more than that, a symbol that social change was possible, that justice for all would not be delayed forever.

I also know that you have more on your mind than whether Heather’s two mommies can file a joint tax return. Iraq, Afghanistan, the economy…I get it. You don’t want to be another Bill Clinton, distracted by the gays-in-the-military issue during your first months in office.

But you didn’t have to file a brief in support of the “Defense of Marriage Act”. I put the name of this wrong-headed federal law in quotes because it doesn’t actually protect anyone’s marriage. It only withholds over 1,000 federal rights and benefits from same-sex couples, even if their marriage is recognized by their own state’s laws. And what’s more, President Obama, you didn’t have to file this brief, which substantively and in detail defends the constitutionality of discrimination against gays and lesbians, arguing that they are not a “suspect class” for equal protection purposes.

There are a lot of folks in this country who still don’t see a parallel between gay rights and the civil rights struggles that ended “separate but equal” schooling and the interracial marriage ban–even though the Justice Department’s pro-DOMA brief relies on the same legal arguments that once would have prevented the president’s parents from getting married. But, President Obama, you led our community to believe that you saw that connection. Were you just promising marriage in order to get us into bed?

Former Clinton top aide Richard Socarides has written on the liberal political website AMERICABlog News about why the DOMA brief was unnecessary and harmful:

Like many other gay people who support the president, and as someone who had hoped he would be a presidential-sized champion of gay civil rights from the start, I was disturbed by his administration’s brief defending the so-called Defense of Marriage Act (DOMA), filed late last week, in opposition to our full equality.

It had such a buckshot approach to it, a veritable kitchen sink of anti-gay legal theories, that it seemed expressly designed to inflict maximal damage to our rights. Instead of making nuanced arguments which took into account the president’s oft-stated support for repealing DOMA – a law he has called “abhorrent” – the brief seemed to embrace DOMA and all its horrific consequences.

I was equally troubled by the administration’s explanation that they had no choice but to defend the law. As an attorney and as someone who was directly involved in giving advice on such matters to another president (as a Special Assistant for civil rights to President Bill Clinton), I know that this is untrue.

No matter what the president’s personal opinion, administration officials now tell us that the US Department of Justice (DOJ) must defend the laws on the books, and must advance all plausible arguments in doing so. Thus, the theory goes, the DOJ was just following the normal rules in vigorously defending the anti-gay law.

I know and accept the fact that one of the Department of Justice’s roles is to (generally) defend the law against constitutional attack. But not in all cases, certainly not in this case – and not in this way. To defend this brief is to defend the indefensible.

From my experience, in a case where, as here, there are important political and social issues at stake, the president’s relationship with the Justice Department should work like this: The president makes a policy decision first and then the very talented DOJ lawyers figure out how to apply it to actual cases. If the lawyers cannot figure out how to defend a statute and stay consistent with the president’s policy decision, the policy decision should always win out.

Thus, the general rule that the DOJ must defend laws against attack is relative – like everything in Washington. And even when the DOJ does defend a law against constitutional attack, it does not have to advance every conceivable argument in doing so (such as the brief’s invocation, in a footnote, of incest and the marriage of children). In fact, many legal experts believe that in this particular case none of the issues going to the merits of whether or not DOMA is constitutional needed to be addressed to get the case thrown out. The administration’s lawyers could have simply argued, for example, that the plaintiff’s had no standing. There was no need to invoke legal theories that were not only offensive on their face, but which could put at risk future legal efforts on behalf of our civil rights.

An earlier post on AMERICABlog News, by John Aravosis, is also worth reading for its point-by-point analysis of the DOJ brief and its potential negative impact on other gay-rights cases.