Dispatches from the Culture Wars

He actually argued that the courts shouldn't consider Loving v. Virginia, the miscegenation case in which the Supreme Court ruled that it is unconstitutional to ban interracial marriages, when looking at gay civil rights cases. He told the court, in essence, that blacks deserve more civil rights than gays, that our civil rights are not on the same level.

And before Obama claims he didn't have a choice, he had a choice. Bush, Reagan and Clinton all filed briefs in court opposing current federal law as being unconstitutional (we'll be posting more about that later). Obama could have done the same. But instead he chose to defend DOMA, denigrate our civil rights, go back on his promises, and contradict his own statements that DOMA was "abhorrent." Folks, Obama's lawyers are even trying to diminish the impact of Roemer and Lawrence, our only two big Supreme Court victories. Obama is quite literally destroying our civil rights gains with this brief. He's taking us down for his own benefit.

Others disagree. Lawrence Tribe, who is a staunch opponent of DOMA and wants it overturned, told The Advocate that this is actually a good thing, that this is a bad case that will lead to the wrong result and that it would be much better for all concerned if the case is dismissed so another, more compelling challenge can go forward:

As someone who wants to see DOMA dismantled and invalidated, I would love it if this ninth circuit case would evaporate into the ether.

Even though I personally believe that DOMA is unconstitutional, I think that this particular lawsuit is very vulnerable; it's not anywhere near as strong as the one that was brought in the federal district court in Massachusetts [a suit filed by Gay and Lesbian Advocates and Defenders].

In an environment where the Supreme Court is still quite conservative, what makes a suit a strong one is that it finds a point of entry in which it's possible to invalidate a law in a number of its applications by using more of a scalpel that might appeal to five justices rather than a bludgeon that will almost certainly ask more of the court than it is willing to do.

What's strong about the Massachusetts case is that these are concrete situations of people who are legally married under the laws of states like Massachusetts or Vermont, and who are being discriminated against by the federal government with respect to federal benefits simply because they are same-sex couples. There's no other difference between them and other couples in that state, and the court could agree with that without accepting any of the broader theories advanced in the [Smelt] lawsuit in the central district of California, which is basically a bet-the-farm lawsuit that almost dares a conservative Supreme Court to slap it down.

A strategic Justice Department interested in a litigation strategy that has some realistic chance of success certainly would not have taken [the Smelt] case as the one in which the constitutional vulnerabilities of DOMA should be explored.

He also argues that the DOJ is required, by tradition if not by actual legal obligation, to defend federal laws that are challenged in court unless those laws are clearly unconstitutional:

Under the traditions of the solicitor general's office, the government does have an obligation to provide a defense in any lawsuit where there is a plausible argument to be made, even if the president does not agree with the law.

There certainly are cases where the government declines to defend the law, but those are few and far between. If congress were to pass a law that flew directly in the face of a binding Supreme Court precedent -- a law outlawing early-term abortion or a law providing for "separate but equal" schools -- the obligation of the Justice Department to the Constitution would trump its obligation to defend the laws of congress.

But DOMA is in a gray area where there are experts like me, who think it's unconstitutional, and you can find experts who hold the opposite view, and it's certainly not a slam-dunk.

There are ways for the president to get rid of DOMA. He can advocate for its repeal, he can eventually urge the solicitor general to join in a more surgical attack, but he certainly isn't obliged to go along with every plaintiff who brings a lawsuit.

The important point here is that the solicitor general traditionally seeks to dismiss lawsuits against federal laws whenever there is a plausible basis to do it. A lot of the outcry about the administration's position doesn't take that institutional reality into account.

I'm not sure I buy this. I do agree with him that many of the legal arguments made in the brief are entirely valid. DOMA certainly is constitutional under current precedent; there is, after all, a reason why every federal court to consider the question over the last 15 years has upheld the law. It is pretty clearly within the authority of Congress to have passed such a law under the Full Faith and Credit Clause and the brief points to multiple precedents that clearly support that conclusion.

But I don't really buy the argument that the DOJ has an obligation to defend it. Aravosis is correct when he says that other administrations have refused to defend laws they believed were wrong. Tribe is correct that this is traditional for the DOJ, but frankly I don't put all that much stock in that tradition. It's a tradition that has also historically been set aside when an administration strongly opposes a law. The fact that this administration chose not to oppose this one suggests that they don't really oppose it all that much.

Lars Thorwald, a federal government attorney who supports Obama and is opposed to DOMA, nevertheless defends Obama for filing this brief and says that he is, in fact, fulfilling his promise to uphold the rule of law:

Rather, here's the promise he is keeping: He is keeping his promise that he will serve and act as President as if America is a nation of laws, which it is. He is keeping his promise to uphold the law.

Let me start by saying I understand the frustration about Obama's promises regarding gay equality, particularly in the area of DADT. You are right to scream from the rafters that you think he is not keeping his word. You are right to scream that he is not keeping his word on any host of issues. That relates to policy promises, and I don't have a comment on that in this diary. Whether he is keeping his policy promises is a different issue.

I want to address the brief filed in support of the Defense of Marriage Act. That Act preceded Obama. He inherited that law. It was on the books when he came into office, and because it has been challenged, he and his DOJ have an obligation to defend the law if there is a legal basis to defend it.

That's exactly what I want my President to do.

Consider this hypothetical:

A Democratic Congress passes a gay marriage act, permitting gay marriage. It is signed into law by a Democratic President. A few years later a Republican President is elected. The gay marriage act is challenged in federal court. What should the President, or, more precisely, what should the DOJ do in that situation?

(a) Consider whether there is merit to the lawsuit, and whether the Act is legally defensible. If it is defensible under the law then the DOJ should defend the law, even if they disagree with it. Remember: this means a Republican DOJ must defend a law establishing gay marriage because there is a reason to defend against the lawsuit attacking the law; or

(b) The DOJ should determine whether the law is good policy, and, if it is not good policy in the eyes of the Republican President or his Administration, they should not defend it. Even if it is defensible. Remember: This means the law dies in a courtroom, despite it being a legally defensible law, all because the Republican President promised to fight gay marriage. Sorry, Congress, better luck next time.

Answer b is what we did for 8 years. Oh, maybe we didn't do it by not defending lawsuits against arguably valid laws. Maybe we did it more frequently with signing statements that said, "Well, forget the law, I'll interpret it my way." Or simply by ignoring the law; or refusing to apply it.

I think I know how this community felt about that.

Because what happened the last 8 years was this: We were a nation of men, or, more precisely, a handful of men. If Cheney, Yoo, Addington, Feith, Bush, and the rest didn't like a law on policy grounds...well, we can just ignore it.

I don't care if it is DOMA, or FISA, or whatever. The law is the law, and the executive must apply it and defend challenges to it, if it is legally defensible. (The Americablog assertion that Presidents routinely and frequently simply decline to defend enacted laws in Court is wrong for reasons far too numerous to entertain here, and on the occasions it has happened without good justification, I submit those Presidents were wrong, too).

The point is: The man I voted for told me he would return us to a nation of laws, not of men. That means we follow (and apply, and defend--or else it means nothing) the law. Regardless of the whims or policy desires of the man in the chair. Because he is bound by the law, too.

Have you all forgotten this so soon?

So rail about breaks of promises where policy is concerned; you should and you must petition your government for a redress of those grievances. We all must. We must use our voices to make Obama change the policy, make him change the law, make Congress change the law. Everywhere we think it needs changing. Hold his feet to the fire on those campaign policy promises, and beat him up when he doesn't.

But for God's sake, don't beat him up when he (and his DOJ) does his Constitutional duty--a duty ignored for 8 years--and defends and upholds the law.

Andrew Sullivan has been hopping mad about this too, but he points out that the brief was actually written by W. Scott Simpson, a Bush administration holdover. And he says:

So who signed off on this brief? Who is responsible for this mess? Or are gays that low a priority for DOJ?

And Aravosis makes a big deal out of the fact that Simpson is apparently Mormon.

But this last information is really a silly distraction. Simpson is actually in a career position at the DOJ and was not a political appointee of the Bush administration, so calling him a "Bush holdover" as if this means he supports Bush politically is a misnomer. As a career appointee, his job is to provide the best legal argument for whatever position he is assigned to write (just like 90% of the attorneys in the world). And while there are some weak arguments in this brief, there are a lot of strong ones too.

It's also off base because Simpson is only one of many attorneys listed on the brief. He didn't write it himself, such briefs are the result of the work of many people and go through lots and lots of drafts and revisions at all levels.

Chris Geidner, meanwhile, says that while the DOJ does have an obligation to defend the law, they didn't have to go as far as they did. They could have offered up a pro forma defense without making many of the arguments they did in the brief.

So where does the truth lie in all of this? Has Obama betrayed the cause of equality for gays and lesbians with this brief? Is it all the work of a "Bush holdover"? Or were they just doing what they are required to do regardless of their actual position on DOMA? Hell, I don't know. It's probably too early to tell.

I've been extremely angry at Obama for betraying the cause of civil liberties in numerous ongoing cases, but those are cases where they are defending executive branch actions that violate the law, not defending the validity of a federal law. That's not the same situation at all.

I've also been disappointed by their lack of action on gay rights, but I also recognize that changing those laws, like DADT and DOMA, are difficult and require political compromise because Obama can't just do away with them with a wave of his pen, as he can with the government's positions on executive authority referred to above. So again, these are different situations.

Here's what I suspect is true: I think Obama really does believe that gays and lesbians should have equal rights, including the right to marry. If there were no political considerations in the equation, he would gladly wave a magic wand and make such equality a reality. But he's also a politician, and a very pragmatic one at that. And he knows that some of these issues will require a lot of political capital and have a potential downside if they're not handled carefully (and even if they are, in some cases). So he's treading very, very carefully.

A less rosy outlook: It's also possible that Obama doesn't really care about gay rights much at all and it is well down on his priority list. He may well look at gay rights the way Bush did at the issue of abortion - yeah, he agrees with the group he needs to appease, but it's not really a priority. Bush was against abortion, but it wasn't a priority for him. What he offered the pro-lifers were mostly symbolic victories that carried little political risk, like the Mexico City Policy and the ban on federal money for stem cell research, in the hope that these things would appease them.

It's quite possible that Obama has the same approach to gay rights issues. Yeah, he's for gay rights and he'd just as soon have equality, but it's not a priority for him. He's not willing to put up a hard fight on those issues because there are other things that are more important to him that require ammo and he wants to keep his powder dry for those issues. So he'll give the gay rights advocates small, symbolic victories, like equal benefits for civil servants, issues that don't carry much risk of backfire. But on the big stuff, he's going to move very slowly and very carefully in order to preserve his flexibility.

Like Bush with the anti-abortion crowd, Obama knows that gay rights advocates don't really have much of an option. Just like the pro-lifers won't be welcomed in the Democratic party, neither will advocates of gay rights find an open door among Republicans. Both could take that key constituency for granted to some extent.