A very qualified walk-back

I am grateful to Elizabeth for her level-headed semi-defense of the Obama administration. I've done a bit of follow-up reading, via the Salon article to which she linked and beyond. And I'm willing to simmer down, but only just a very little bit.

The objections I have to the Obama administration's record on gay rights issues is threefold:

1) No progress on Don't Ask Don't Tell (DADT), the Defense of Marriage Act (DOMA) and similar discriminatory federal policies. The President promised the LGBT community that he would be a "fierce advocate" for us on these issues. Nevertheless, gay soldiers who have served honorably in important capacities continue to be discharged, simply for being openly gay. I believe that DADT is a flagrantly disciminatory policy, and (pace friend and commenter charo) I think the country shares that opinion at this point. I don't really think inaction on this point can be attributed to anything other than a lack of will.

DOMA will take more work, as will a legislative repeal of DADT. (As opposed to a stop-loss executive order, such as has been used to extend the tours of duty during the Iraq War.) If it were merely a question of prioritizing other legislation (eg. health care reform), I might (might) be willing to give the Obama administration a pass, or at least a bit more time.

Sadly, it is not merely a case of inaction. What has made me, along with many, many gay people very, very angry, is a brief filed by the Department of Justice in federal court defending DOMA. Which bring us to:

2) The Obama administration didn't have to submit the brief. Now, this opinion is based largely on points made by John Aravosis at AmericaBlog, and by an opinion offered there by John Socarides, who used to work in the Clinton administration. To quote briefly:

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.

However, the brilliant Laurence Tribe has defended the administration's filing in an interview he did with The Advocate:

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.

I may be many things, but dumb enough to think I know the law better than Laurence Tribe is not one of them. Based on what he said, I will give the Obama administration the benefit of the doubt and assume that the filing itself was appropriate. That does not, however, temper my anger at:

3) The content of the brief (pdf) is appalling.

Now, assuming that the DOJ really had to defend DOMA in the Smelt case, it could have done so simply by arguing that the plaintiffs lacked standing. While the brief does make that point, it doesn't stop there, and proceeds to defend DOMA on its merits. It argues, in essence, that DOMA is not discriminatory in its intent or effect. For example, there is this:

Moreover, because DOMA protected "the ability of elected officials to decide matters related to homosexuality," including their right to recognize same-sex marriage, it plainly was not born solely as a result of animosity towards homosexuals.

This is plainly absurd on its face. While DOMA may allow for states to recognize same-sex marriage, its intent was clearly to permit other states to do the opposite. This statement is both obviously wrong and deeply insulting.

Also:

DOMA simply provides, in effect, that as a result of their same-sex marriage they will not become eligible for the set of benefits that Congress has reserved exclusively to those who are related by the bonds of heterosexual marriage.

If someone can explain to me how this is not a flagrant defense of discrimination against same-sex couples, I'm all ears.

The brief is rife with legal points defending DOMA. It is utterly inconsistent with what we would expect from an administration that has pledged to support us. As GLAD's Mary Bonauto (a woman I was honored to work with briefly in support of Maine's marriage equality law) puts it:

[W]e had a very particular interest in reading how the Obama Department of Justice would tackle the Smelt DOMA challenge in California, even though it does not deal with concrete harms imposed by DOMA. All we knew in advance is that it would be different from the Bush administration's response, and it was. At the same time, some things in this new brief were startling; while others were silly, wrong or offensive or all of the above.

I was very curious to see what Ms. Bonauto (who will not be attending the DNC fundraiser next week) had to say, because she is someone whose opinions I trust, and I consider my objections to the brief to have been validated.

So, while my anger is dimmed ever so slightly, I remain furious about the content of the Smelt brief, which provides opponents to same-sex marriage with a handy primer of arguments against it. And it will take more than a handful of benefits for gay and lesbian federal employees to make up for it.