The Obama administration, which came to office promising to protect gay rights but so far has not done much, actually struck a blow for the other side last week. It submitted a disturbing brief in support of the Defense of Marriage Act, which is the law that protects the right of states to not recognize same-sex marriages and denies same-sex married couples federal benefits. The administration needs a new direction on gay rights.
Earl Ofari Hutchinson: Obama's Marriage Defense Shouldn't Surprise or Anger Anyone
"I will tell you that I don't believe in gay marriage."
"I believe in civil unions but it should not be called marriage."
Then Democratic presidential candidate Barack Obama said that during a campaign stop in Nelsonville, Ohio a day before the Super II Tuesday primary in March 2008. The great puzzle then is why so many are so hot at President Obama for backing the Defense of Marriage Act. He has not backed a step away from his Ohio campaign stump words.
His unshakeable personal, political and legal belief is that the only marriage that can be called marriage is between a man and a woman. This has absolutely nothing to do with his solid, and at times outspoken, tout of anti-discrimination, civility, and just plain human respect for gay rights. He has backed that in speeches and legislation 18 times before he grabbed the White House.
This still doesn't change his firm belief that marriage is marriage only when it's between a man and a woman. Gay groups, the mayors of Los Angeles and San Francisco, and some congresspersons, can scream at him to withdraw the Justice Department's brief filed seeking the dismissal of the legal challenge to the DOMA in a federal court in California. They can bash him as a flip flop and a betrayer of his campaign promises on gay rights. This still ignores the bitter truth that candidate Obama and now president Obama has been the paragon of consistency, even honesty, in opposing same sex marriage. This has nothing to do with politics, but his personal belief layered over with a tinge of religious interpretation, since he's cited conflicted passages from the Bible, to square his support of gay rights with his opposition to legalizing same sex marriage.....
Disappointed? Well, yes, of course. Surprised? Not so much at the defense -- though, really, when a candidate promises one thing, then does completely the opposite, why wouldn't you be entitled to be at least a little surprised? Anger? Well, of course. Not so much at the fact of the defense, which would have been bad enough, but at the method and the language. If you are not entitled to be angry when someone goes above and beyond what would be required, and deliberately and knowingly causes you difficulty and pain, when are you allowed to be angry?
And for the record, the administration's contention that it's required to defend all valid federal laws is a flat out lie. States and the federal government have declined to defend laws that they thought should be overturned in the past -- witness California declining to defend Proposition 8. It's infrequent, true, and it's quite likely that the administration wouldn't have gotten away with it if they'd tried to back away from defending the law; the federal courts frequently direct the government to make a defense in such situations. But let's take the administration at it's word; perhaps all of these lawyers, educated in the niceties of federal law and very well practiced in same, somehow forgot everything else they knew and somehow thought that they were in fact obliged to defend the law. If the administration truly felt that the law should fall, they could then have offered a very minimal defense. Instead, they dragged out many long discredited arguments and vile calumnies to make its case.
It is possible -- perhaps even probable -- that those arguments were dragged out, in the Ninth Circuit in particular, precisely because they were such dreadful arguments for the law. The Ninth being what it is, while the law is likely to be upheld in Orange County (it being what IT is), DOMA's likely to be struck down at the Court of Appeals level, and they will not be kind to those arguments. Unfortunately, the Ninth being what it is, and having a perfectly dismal record of having its decisions sustained at the Supreme Court level, The Court will almost certainly reverse the decision to strike and uphold the law -- it being what IT is. (Kennedy's Lawrence majority aside, it strikes me that it would be difficult to cobble together a 5-4 majority to strike DOMA from this or a near-future court; even if Sotomayor votes to strike the law, she only replaces Souter's vote in Lawrence. Given that he performed some logical conniptions to make Lawrence not apply to marriage laws, I don't think Kennedy himself would be in a majority to strike DOMA. [Though, given his alleged respect for stare decisis, it would theoretically be possible to get a fulminating and acid support from Scalia, which would be vastly entertaining. He might be just crotchety enough to force the others to live with the logical consequences of Lawrence. Kind of doubt it, though.] But I digress.) This administration is, if nothing else, extraordinarily tactical in its methods. (Sometimes I think it's nothing but tactics, without actual substance or plans for follow-through. But I digress.) If it can get the courts to do its dirty business for it, why not? If the courts strike DOMA down, then the administration will have to expend no political capital in getting Congress to repeal the law. (Getting Congress not to turn around and pass another version of the law almost immediately, however, will be another thing entirely. Between the Republicans and the Blue Dog Democrats, it would pass rather easily, and then Mr President would need to make the theoretically easy decision not to sign the new law. It would not, I suspect, pass with a veto-proof majority. The question is, if that all happens before the next election, would candidate Obama be willing to rouse up the conservatives on that issue by not signing? I suspect he would not, especially since, as Hutchinson notes, in somewhat different language, Obama does not really believe that gays and lesbians are humans entitled to the same rights and privileges that he himself entertains.)
In any event, it appears that the decision to defend DOMA is having an interesting effect. A DNC fundraiser may be running into some problems, with a few of its headliners already pulling out. It will be interesting to see how much the administration's tactics, if such they be, cost it and others in the party.
Posted by iain at June 16, 2009 10:23 AM
