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DOMA Defense? It’s Worse Than You Think

I returned from a pleasant afternoon away from work to find an unfolding horror story, detailed on my favorite blogs and news sources — the Obama Administration’s DOJ has just filed a motion to dismiss a legal challenge to the Defense of Marriage Act (“DOMA”).

Whether or not the administration was legally required to do so (a debated point, but let’s assume Lars Thorwald is right, and that a legally defensible law should be defended), opposition to the suit (Smelt v. United States) might make sense as a tactic; if the case ever did reach the Supreme Court, the prospects for success are doubtful. But once that strategy matter is decided, there are all sorts of briefs one might write. The simplest, and least harmful, would have been to challenge the case on standing (since the plaintiffs hadn’t “applied” for federal benefits); to the extent a more substantive argument were thought advisable, a standard-issue argument about judicial deference would have sufficed. At the other  end of the spectrum is the brief that was actually written.

Dan Savage was merciless. Andrew Sullivan was more measured, but deeply concerned. (See this summary of his view, from a few minutes ago.) Reading his and others’ take on some of the legal arguments, I thought: Wait! I’m a lawyer, so I’m going to read the brief so I can assuage my worst fears. And then go have a beer.

Well, this Friday night (and likely many more) are ruined. The brief is a jaw-dropping assault on gays and lesbians. Instead of the kind of measured and careful response I was expecting (despite the jeremiads I was reading), I got a brief that seems to have been intended to set the course of judicial progress on gay rights back many years. I wish I were exaggerating.

If I have the time and stomach, I’ll offer a more comprehensive dissection of the brief’s many transgressions soon. (In the meantime, check out this post at Independent Gay Forum, and this angry compilation of “worst of” quotes and aptly sarcastic headings by John Aravosis at AMERICABlog. For a first pass at the problems, check out the always-reliable Dale Carpenter.) Here, consider just two examples that I believe make a solid case that the Obama Administration has engaged in an unspeakable act of betrayal.

First, the argument that DOMA saves the federal treasury money. So would denying federal benefits to marriages celebrated on Tuesdays. This argument is so clearly inane that one barely ever sees it even in state law cases opposing marriage equality, especially after the Massachusetts Supreme Court in Goodridge gave it an unceremonious burial. Of course the feds save money by hoarding the goodies for straight couples. The issue is  whether the discrimination is justified. If it isn’t, then the available benefits should be distributed (even if slightly less) to all. This doesn’t pass what lawyers call the “red face” test (can you make the argument without blushing), and it’s distressing to see it here. It suggests that there’s no underlying act of discrimination to worry about.

The next example is far more harmful, though. Consider this paragraph from the government’s brief:

Because DOMA does not restrict any rights that have been recognized as fundamental or rely on any suspect classifications, it need not be reviewed with heightened scrutiny. Properly understood, the right at issue in this case is not a right to marry. After all, the federal government does not, either through DOMA or any other federal statute, issue marriage licenses or determine the standards for who may or may not get married. Indeed, as noted above — and as evidenced by the fact that plaintiffs have married in California — DOMA in no way prohibits same-sex couples from marrying. Instead, the only right at issue in this case is a right to receive certain benefits on the basis of a same-sex marriage. No court has ever found such a right to federal benefits on that basis to be fundamental — in fact, all of the courts that have considered the question have rejected such a claim. (And even if the right at issue in this case were the right to same-sex marriage, current Supreme Court precedent that binds this Court does not recognize such a right under the Constitution.) Likewise, DOMA does not discriminate, or permit the States to discriminate, on the basis of a suspect classification; indeed, the Ninth Circuit has held that sexual orientation is not a suspect classification.

Most of this doesn’t bother me too much, at least if I can bear to keep my lawyer’s hat on. A narrow, defensible argument is that DOMA doesn’t exclude anyone from marriage, but from benefits — and courts are deferential to the withholding of benefits (not where that withholding is based on clearly impermissible discrimination, but never mind).

But then comes the shocker, tossed off in the parenthetical sentence: Even if this case were about same-sex marriage, there is no fundamental right to that, either. But this is the $64,000 question: Is the right to marry the right to “traditional marriage” only, or to marry the person of one’s choice? In cases like Goodridge and In Re Marriage Cases (California), the courts have made a compelling, even moving, argument that it’s the latter. The Obama Administration seems to be conceding the issue, assuming that the Supreme Court cases that don’t address the issue directly can’t (or shouldn’t) be read to support the kind of expansive reading that led the Massachusetts and California courts to marriage equality.

Oh, and then there’s the last sentence, giving up the “suspect classification” argument that’s been successful in California, Iowa, and Connecticut. Discrimination against gays and lesbians is to be treated no differently than laws targeting minors: Is it rational (under any conceivable argument, even one not made)? If so, end of discussion.

I’m not even out of the introduction yet. The specifics behind these broad-brush arguments are, if anything, worse. (It appears I’ll have no choice but to dive back into this. Sigh.)

While writing this, I was surprised and heartened to learn that all of the heavy-hitting LGBT advocacy groups have issued this joint statement, condemning the brief. After a brief synopsis of the most pernicious legal arguments, the groups drove home their point with this angry closing:

“When President Obama was courting lesbian, gay, bisexual and transgender voters, he said that he believed that DOMA should be repealed.  We ask him to live up to his emphatic campaign promises, to stop making false and damaging legal arguments, and immediately to introduce a bill to repeal DOMA and ensure that every married couple in America has the same access to federal protections.”

I’m congenitally more restrained than I fantasize myself to be. These groups are similarly  cautious, for reasons of institutional checks and access. But you’d have to be staggeringly  naive to expect anything good from the Obama Administration on LGBT issues after this.

Good night.

Update (Tuesday, 6/16 early am): This post has received a great deal of attention (for which I’m grateful). I thought  that those reading it might be interested in this new post, where I create a speech that I’d wish Pres. Obama would give (much more eloquently than I, of course). I think that only swift action on a number of “gay action items” or something like this speech, modeled after his “race speech” from early 2008, can repair the breach that’s been created with the LGBT community.

  1. Jay
    June 13th, 2009 at 12:10 | #1

    I’ve read many DOJ briefs and they’ve been my opponents many times. They always make every legal argument possible. Even ones that have already been found lacking elsewhere. Nothing new here.

    Fundamentally, the argument against gay marriage is an attack on gay people. That’s the weakness of the argument.

    The brief itself seems to be standard DOJ fare and not shocking in the least.

  2. RalfW
    June 13th, 2009 at 15:10 | #2

    If your assertion is true that this was standard DoJ “kitchen sink” fare, it still leaves the indelible impression that there is either

    1) no one tracking LGBT policy at the White House


    2) an incompetent or hostile person doing it.

    I say this given that there has been no PR work whatsoever that might ameliorate the LGBT community – who were made specific (but not time-specific) promises by Obama.

    We got a great, if little noticed, speech from OPR chief John Berry that asks questions (per Chirs Good @ the Atlantic) that would be very hard for anyone in the Obama administration to answer honestly at the moment.

    There is no message coordination, and frankly, little message. Obama’s stammering, look-at-his-shoes response to Brian Williams’ interview question on gay marriage speaks volumes about the fierce urgency of Obama’s desire to avoid any difficult areas of policy for us.

    One can even get the sense that Clinton forced Obama’s hand on the Pride proclamation – her’s for State went out a day (or so) before his.

  3. Rune H
    June 14th, 2009 at 10:15 | #3

    In regards to the WH not keeping track of LGBT policy

    Unless i am wrong the DoJ is supposed to be autonomous from the WH for the most part and briefs and such for cases are NOT sent to the white house for approval et al.

    And one of the thing so many democrats and people on the left railed against Bush on was his politicization of the DoJ, yet so many now want him to start interfering in the cases(i guess many are of the view that if they did it, we can as well) which i see as wrong.

    Unless i’m wrong the DoJ is required to take the cases when people sue the US Gov, and are equally duty bound to do their best(since anything less is dereliction of duty)

  4. Ducky
    June 14th, 2009 at 13:37 | #4

    The DOJ is not completely independent. The head of the department and most of the other major leadership positions are choose by the President for political reasons. There were reasons that Congress set up a special prosecutor’s law. The DOJ under the President is not meant to be an impartial party. They represent the policies of the President. You also wrong about what hte law says about cases. This is quite frustrating. Look up the law and history.

  5. June 14th, 2009 at 20:55 | #5

    I fear the take home lesson here is this:
    “… you’d have to be staggeringly naive to expect anything good from the Obama Administration on LGBT issues after this.”

    Obama is lucky that the Iranian election has blown up else this would have been all over the press.

  1. April 1st, 2010 at 12:36 | #1
  2. April 2nd, 2010 at 05:24 | #2