RENWL

Centerblue.org

The blogosphere is on fire because of the recent brief submitted by Obama’s DOJ in response to a lawsuit, Smelt v. United States, seeking to overturn the federal Defense of Marriage Act that states marriage to be only between a man and a woman. The fires are being stoked by Americablog, which in my opinion twists what’s going on in the brief out of context for people who are not well-versed in the legal arguments being made. I’m not happy that Obama is defending DoMA, but let’s have a rational discussion about what’s really going on.

1) The President and Executive Branch have a duty to execute and defend the laws passed by Congress.

(A Republican) Congress passed DoMA in 1996, and Bill Clinton signed it lest he imperil his re-election. As such, it became the federal law of the land. The President and DoJ are required to uphold and defend those laws. It’s true that Americablog cites a couple of situations where the Executive Branch has declined to defend a law in the books. I have not had time to look up those cases to see what happened, so I will cede the point that it’s not 100% mandatory for the Executive Branch to defend every law in court. Nevertheless, it happens 99.9% of the time, including in situations that the Executive would prefer not to defend but does so because of its duty to execute the laws or because of some other policy reason.

2) Obama had two choices: do what’s done 99.9% of the time, or create a firestorm he’d rather push to Congress in repealing DoMA.

Obama had to make a choice: was this the time, the place and the manner in which to push for the repeal of DoMA? Had he done so, would it have been effective? Obama has indicated that he wants Congress to take the lead on issues like Don’t Ask Don’t Tell (and perhaps by extension DoMA). We may not like it, but it’s simply politically smart to have the legislature that passed the law, un-make it. Neither he nor I have forgotten how badly Bill Clinton got burned when he tried to end the ban on gays in the military without having the assent of Congress. It bombed terribly. Obama the politican does not want a similar bomb to explode in his face.

Don’t like that Obama is a politician and acts out of self-interest? Who do you think he is..Jesus Christ? By insisting that such measures come out of Congress he covers his ass, and also ensures that he doesn’t end up weak and ineffectual like Clinton became when he was forced to sign the Don’t Ask Don’t Tell “compromise.” That’s politics, folks. Can he push Congress to repeal DODT or DoMA? Absolutely, and he should, and we should pressure him to do so. But this lawsuit was not that time.

So, assuming he had reason not to put a stake in the ground, he had no other choice but to defend the law in the books. And when you go to court to defend your position, you are required to do so vigorously regardless of what you privately think of the argument. You don’t go in there half-assed, with a little wink and a nod and hoping everyone understands.

3) The brief did NOT liken gay marriage to incest or pederasty.

Here’s the passage that has Aravosis and other people so outraged:

The courts have followed this principle, moreover, in relation to the validity of marriages performed in other States. Both the First and Second Restatements of Conflict of Laws recognize that State courts may refuse to give effect to a marriage, or to certain incidents of a marriage, that contravene the forum State’s policy. See Restatement (First) of Conflict of Laws § 134; Restatement (Second) of Conflict of Laws § 284.5 And the courts have widely held that certain marriages performed elsewhere need not be given effect, because they conflicted with the public policy of the forum. See, e.g., Catalano v. Catalano, 170 A.2d 726, 728-29 (Conn. 1961) (marriage of uncle to niece, “though valid in Italy under its laws, was not valid in Connecticut because it contravened the public policy of th[at] state”); Wilkins v. Zelichowski, 140 A.2d 65, 67-68 (N.J. 1958) (marriage of 16-year-old female held invalid in New Jersey, regardless of validity in Indiana where performed, in light of N.J. policy reflected in statute permitting adult female to secure annulment of her underage marriage); In re Mortenson’s Estate, 316 P.2d 1106 (Ariz. 1957) (marriage of first cousins held invalid in Arizona, though lawfully performed in New Mexico, given Arizona policy reflected in statute declaring such marriages “prohibited and void”).

OK, so let me explain something that Aravosis doesn’t. When you argue a case in court, you’re looking to make a point. When you try to make that point, you cast about for other cases that also make that point. Often times, you won’t find a case that is exactly (or even anywhere near) the same in terms of the facts, so you have to look for cases with dissimilar facts but which argue for the same conclusion. You do this in hopes of persuading the judge that the conclusion that happened in the other cases should be applied to your case too, even if the facts aren’t similar. This is totally standard procedure, and so is doing a quick summation of the different facts in the other cases for the benefit of the court.

This paragraph in the brief is re-stating a well known and rock solid tenet of “conflict of laws” (an area of law that dictates, roughly speaking, what happens when laws between states conflict.) The well known maxim is that a state is usually required to accept the rulings and laws of a sister state, EXCEPT when the sister state’s laws run counter to the current state’s public policy. So just to give a theoretical example, if one state allowed polygamy and a polygamous couple went to another state and tried to have their marriage recognized there, that state would not have to uphold the marriage if it provided evidence that polygamy runs counter to the public policy there.

The point being made in the paragraph is just as in the hypothetical: one state need not recognize another state’s marriage if it believes the marriage to violate public policy, with the underlying assumption that there are states out there that do in fact believe same sex marriage violates their public policy (strong evidence of which would be the various state level anti-marriage amendments and laws that have been passed).

In trying to back up the point, the brief cites other marriage-related cases. They probably couldn’t find other examples of same sex marriages in the books to cite as evidence since they’re a new thing. So they cast about for what they could find–and they came up with an incest case and a pederasty case with totally different facts but which argued the same conclusion: that State A can refuse recognition of State B’s marriages.

Arguing by analogy is not the same thing as arguing from belief or from current facts. The DOJ brief is NOT saying same sex marriages are like incest or pederasty. They’re just other cases that argue, by analogy, for the same conclusion being sought by the brief.

4) Much of the rest of the brief points cited by Americablog re-state existing law.

Americablog takes great exception that the brief argues that gay marriage should not be treated the same as race for equal protection arguments. But for decades the law has been clear that there are three standards of increasingly strict review–and that only race, national origin and religious affiliation receive the highest protection standard under the Equal Protection Clause (which is to say most laws regarding these classes will simply be struck down). Even sex discrimination isn’t treated as strictly as race, and gets an “intermediate” level of scrutiny/protection. Everything else has always been on the lowest tier, requiring merely that a law have some “rational basis” to avoid being struck.

That the brief argued that this lowest basis should be used for DoMA is standard practice when arguing Equal Protection cases. Arguing that homosexuality should join race at the top of the Equal Protection pyramid is a losing argument that probably wouldn’t fly even in front of a liberal court, and this brief was certainly not the right time to make that argument.

Yes, it’s disappointing that the brief would argue that same sex marriage shouldn’t be considered a fundamental right (a better argument for marriage equality advocates than equal protection). Yes it’s sad that the brief would regurgitate old arguments about equal protection and public policy. But if DoJ was going to have to defend the law, it could really do so only on those three grounds.

5) The brief does not re-state key anti-gay arguments made in such cases by the Bush Administration.

The Washington Post pointed out that the brief upheld the validity of same sex marriages performed in states that permit them, unlike Bush’s arguments that same sex marriage is never valid. The brief also did not use the incendiary argument that kids raised in heterosexual married households are better off than those in gay households.

It’s a relatively small point, but key in my opinion to my belief that the brief is dryly stating legalese instead of trying to damage the gay marriage cause.

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Conclusion

I know everything above is wordy and dense, so here’s the summary:

We have a right to be angry and disappointed that Obama’s administration would put its name anywhere near supporting DoMA. Obama has not done enough on behalf of gay issues, for repealing DADT and DoMA and he should be taken to task for that. He has been a disappointment on civil rights issues generally.

But let’s not fan the flames of anger and turn them into hatred by finding malice where there is none.

a) Obama and the Executive Branch are doing what’s done 99.9% of the time in defending a law passed by Congress and signed by another President.

b) Obama had a choice, to be that 0.1% of the time and take a stand in what was likely to be a losing cause by refusing to weigh in on DoMA, or to support the law. Whether we agree with it or not, Obama decided that this was not the time or the place, nor did he have the means or the will or the political capital or what have you, to dictate an end to DoMA on his own. Call him a coward or a political pragmatist, but he is on the record as wanting Congress to take the lead on these issues.

c) OBAMA DID NOT EQUATE GAY MARRIAGE WITH INCEST OR PEDERASTY. The brief made an argument by analogy with other cases, to prove a point using cases that had dissimilar facts but came to the same conclusion wanted by the writer. This happens ALL THE TIME in legal arguments, it is standard practice and says nothing about the writer’s personal beliefs about the case.

d) If you decide to argue a case, you can’t do it half assed. You have to do so zealously. In so doing, the brief employed the standard equal protection, fundamental rights, and public policy arguments that always come up in these marriage cases. We may not like the other side of these arguments, but they are what they are.

What do we do?

I’m not trying to completely exonerate Obama here. We need to apply the nails to his nuts and start pushing hard for him to start coming through on DoMA and DoDT. He’s had a lot on his plate with the economy, but his silence on these issues is increasingly unacceptable–and the brief only inflames the splinter in the gay community’s mind about it all. He’s on the record as wanting repeal of these laws. Fine. Let’s ride his ass to get on the phone with Congress and GET IT DONE NOW. I’m confident that if DoMA is repealed and someone somehow sues on that basis, that his administration will take the other side of this argument and defend the repeal.

But let’s not mistake this brief for a President who would actively seek to write us out of the Constitution like the last one attempted. Wanting “cover” for his political ass may be cowardly or the sign of a man who prefers consensus, but it’s an entirely different animal from someone who actively hates us and wants to bow to the Radical Right.

Let’s be angry because he has not done enough to keep his promises yet and has forced himself into an embarrassing corner by having to argue this case. Let’s not pillory him for something he hasn’t done.

He’s not out to destroy us. He (and Congress) just need a good hard push.

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