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.
UPDATE: DOJ spokesperson makes statement about Obama’s stance on DoMA:
As it generally does with existing statutes, the Justice Department is defending the law on the books in court. The president has said he wants to see a legislative repeal of the Defense of Marriage Act because it prevents LGBT couples from being granted equal rights and benefits. However, until Congress passes legislation repealing the law, the administration will continue to defend the statute when it is challenged in the justice system.
Spokesman also points to standard Executive Branch policy:
Executive Branch agencies will enforce federal statutes unless they are clearly unconstitutional and the Department of Justice will defend statutes against constitutional attack whenever reasonable arguments can be made in their defense.
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I find the majority of your arguments here unpersuasive at best and quisling at worst. This DOJ brief is a literal outrage.
Sorry its really beyond an outrage – its a sign of contempt.
This is just more of the same old stuff that the Dems have been telling the gay community for years – be patient and we will sooner or later throw you some crumbs. Obama took our money and then our support and efforts and is now pissing on us just like Bill Clinton did when he signed DOMA in the first place.
The LesBiGay Community needs to grow up and realize that Obama and the Democratic Party only uses us and could care less about our dignity or human rights.
Finally. Sanity.
I will also point you to the direction of House Report 104 664 which contains the “scarce government resources” argument for passing DOMA in the first place. The brief quoted the Report because like citing case law, that’s how law is argued.
If people want DOMA overturned, rip this report to shreds and educate people on the stupidity and hate that is in it.
http://thomas.loc.gov/cgi-bin/cpquery/z?cp104:hr664:
I do not want Obama to ram through legislation like Bush did. The law comes from Congress and is determined Constitutional by the Courts. That’s our government. We better get busy and get responsible for our part in it.
I thought your position was well argued. I agree that just because the DoJ is defending a law does not mean the administration agrees with it. I have been willing to be patient because I know that he has a lot on his plate right now, but Obama needs to take a stand soon. My patience is limited. DADT is particularly insulting.
This brief is simply appalling …..even if he was required to submit a brief…which some dispute…it could have been confined to a very narrow constitutional issue….this brief is filled with homophobia, undercuts us and by the way, The President, as we attempt to repeal DOMA in Congress, it reckless and damaging in its chosen words and enough is enough…on top of everything else it is appalling..there is NO WAY a good spin can be put on this brief.
For all the folks frothing at the mouth over this – what are we doing about other than posting “Obama is a bigot” to our Facebook profiles? As Joe points out – we need to get congress to move on DOMA. Expecting the Justice Department not to defend DOMA which, agree with it or not, is the law of the land is a powerfully naive view. Commenter mwfolsom is right – we do need to organize and grow up and start demanding things – rather than assuming a vote for any political party will get us the rights we so richly deserve as GLBT Americans. I don’t think it’s a Democrat nor Republican issue – there is just no political will in Washington to accomplish change this instant on this topic or DADT.
I don’t see the political will to make this happen, though. I’m also reminded as well of the quote frequently attributed to Franklin D. Roosevelt, who when pressed by labor and civil rights leaders to support their agenda, reportedly replied, “I agree with you, I want to do it, now make me do it.”
Who is making Obama do the right thing? Who is pressuring conservative Democrats, especially in the Senate, to support this agenda?
Posting to Facebook is not “being the change you want to see in the world” – it’s simply “whining about the change you are not seeing in the world.” its time to get involved and make your voice heard with people who can actually ACCOMPLISH the changes you want to see.
The administration has no duty to defend statutes in court, as you admit even while attempting to make the point that it does. By defending this statute, Obama has broken his campaign promises and made clear his contempt for gay citizens of the United States. No, I didn’t expect any better from him. Yes, I understand that he is a slimy politician and will always put his perceived self-interest above his purported principles. What I don’t understand is why gay writers defend the son of a bitch.
You’re right but unfortunately non-lawyers don’t get it and since Aravosis and Sudbay are lawyers people just believe what they say. But they’re just wrong.
Obama had a choice and it is false to say that he didn’t. Look no further than the torture photos where Obama backed out of a settlement entered into with the ACLU. Just as Obama made the willful decision to enter into the settlement, he made the willful decision to back out of it. Claiming the Obama Administration’s hands are tied doesn’t hold water. There is no law requiring the DoJ to defend every law.
I didn’t say his hands were tied. I said he could have made that choice, but the low likelihood of success on the issue without having Congress weigh in and frankly the risk to his and Dems’ political fortunes of going alone, made the decision a no-brainer.
Look what happened with DADT. Clinton unilaterally ordered a lifting of the ban without consulting Congress, he got crushed by the firestorm, he lost his political capital, he weakly signed DADT, and then Dems lost the Congress in ’94 (due in no small part to this issue, plus healthcare) for a dozen years to the Republicans. What makes you think Obama would want to sign up for the same punishment? Whether we like it or not, that’s political reality.
It’s not the DOMA brief any more. It’s The Obama Brief.
And if you don’t like that, I’ll be happy to tell you to calm down and explain how you should feel about it.
Bob Crispen, thank you so much for your rational feedback. You’ve greatly contributed to helping us see the issue so much more clearly.
I strongly disagree with your first point. The Executive has no duty to “defend” a law from Constitutional challenge. You could certainly make an argument that it has a duty to EXECUTE those laws, but the Department of Justice is under no obligation to present a counterargument when someone challenges them. Congress passed the law, let Congress defend it.
The brief could have focused on standing issues and other legal arguments that would have been sufficient to kill the case without the name calling in the brief. The attorney who wrote the brief was a Bush holdover who also wrote a brief against late term abortion which Alberto Gonzales gave him an award. This was just wrong and there is no way to sugar coat the brief.
PLEASE, have faith in this President! Trust me, Obama is a genuine leader in GLBT Equality. It’s really in our best interest to support this President… through him we will succeed. This administration is on our side. I see it everyday from with in, and I am confident that President Obama will come through.
Kevin R Cariato
Your logic is faulty. DOMA is unconstitutional, and any number of legal scholars would argue that point in our favor. DOJ has no obligation to seek to enforce an unconstitutional law. There is PLENTY of precedent for DOJ not to present a full-throated defense of a law the President opposes. The anger is accurate. This is a weak and namby-pamby defense of the indefensible. If you are unwilling to criticize this President and his polices, and will present a defense of anything he does, no matter how egregious, how are you different from the most blind-loyal Bush supporters?
I find it interesting that you quoted a substantial portion of the relevant parapraph in 3) above, but left out the last sentence: “The fact that states have long had the ability to decline to give effect to marriages performed in other States based on the forum State’s public policy strongly supports the constitutionality of Congress’s exercise of its authority in DOMAâ€
So, a comparison or “likening” is being made, contrary to your assertion.
they had to use this analogy because the others were even more absurd. They could have sited the progression from Kirby to Loving and written an opinion that DOMA is unconstitutional.
I used to work as a DOJ attorney, and I agree that in 99.9% of cases, DOJ defends federal laws. That is an obligation of the department, and it would have been very surprising and extremely controversial for him to abandon the defense of a federal statute. Just think if the Democratic and Republican presidents were free to abandon any federal statutes they do not like! DOJ’s job is to defend the laws passed by Congress except in very, very rare circumstances. This one isn’t even a close call.
But I disagree that the brief needed to make all of these arguments as part of a “zealous” defense. The most offensive just strike me as unnecessary: why make the third and fourth and fifth points when it means insulting gay people? This brief should have been shorter, narrower, and more respectful. People can understand defending the law, given the institutional obligation of the department. What pisses us off is the way the Obama Justice Department made the case.
I don’t know how you can say the brief does not compare gay marriages to incest and pedophilia. The argument is that the “public policy” exception allows states to refuse to recognize incestuous and underage marriages from other states, and, for the same reasons, states should be able to refuse to recognize gay marriages. Anti-gay policies deserve the same respect that anti-incest and anti-pedophilia policies receive under the Full Faith and Credit Clause, according to Team Obama. You’re right that argument by analogy is common in legal briefs, but the analogy is precisely what’s offensive. The DOJ is saying there’s a category of relationships (e.g. interracial marriage) that states must recognize as protected, and another category (e.g. incest, pedophilia, plenty more sickening examples) that they are free to reject. Obama says gay marriage falls in the latter category because it is more like incest and pedophilia than the protected kinds of relationships. Sure, the claim arises in a particular legal context, but it’s an undeniable comparison between incest, pedophilia and gay marriage.
Obama had dropped DOMA repeal from the White House website, and obviously from his policy priorities. The DOJ continued on the previous administration’s policies as a result. Guess who’s responsible? The buck stops on Obama’s desk. He screwed up.
Horse-pucky. The simple reality is the sheriff gets to decide where the resources go. Congress under the Commerce Clause can run roughshod over all state-based med marijuana laws but POTUS just recently said he would have DEA refrain from doing just that unlike his baboon predecessor.
As for the just-doing-his-duty crap, this is that same vestigial trope that used to come up over and over in the south vis-a-vis fighting for the Confederacy: at least they fought for what they believed in — or for that matter soldiers fighting any unjust war: just doing their duty. Bullshit. Doing one’s duty against one’s conscience or fighting for an unjust cause even if one believes in it is simply worthless worthless worthless. Wrong is wrong. He could have finessed this and he didn’t. It’s understandable he isn’t going to come out and take a stand and say “I WON’T ENFORCE THIS UNJUST LAW” though a better man would, but he could have subtly diminished this. He could have buried it. He could have had it revised. It’s obviously inflammatory with the incest bit and there’s tons of case law out there that didn’t require these comparisons. This was a egregious and unnecessary. And the sad truth is, I don’t have anybody else to vote for because this guy is the closest thing to reasonable we’ve had in years. I can’t believe he let this slip by. Really pathetic. Wow thanks Barry. Barney F. should know better too. Too much the Dem shill on this one.
That was an exercise just to make yourself feel better. The administration was NOT required to re-argue the same position. Prosecutors CAN move to dismiss cases which they have brought before the court. If it’s wrong, it’s wrong. Period, end of story. I guess I just didn’t learn the same “stuff” you did in law school.
This brief was an outrage. You acknowledge that the DOJ did not have to defend this law, but you let them off the hook for choosing to do so. They could have submitted a two page brief, but they submitted a homophobic piece of garbage. Now Barney Frank is defending the brief, thus becoming the President’s bitch.
For those who say the defense could have been less “full throated,” I have a question for you. The other side wanted to make the point that one state can refuse to recognize another state’s marriages if they violate the state’s public policy.
What kind of marriage case would qualify as “less full throated” to you than the ones cited in the brief? Isn’t by definition a marriage going to be “egregious” in some way if it’s going to be rejected by another state? Can someone cite me a marriage case where it was rejected for recognition in another state for purely routine reasons that won’t offend anyone?
Let me be clear, I fully support gay marriage (duh) and the repeal of DoMA. But if you’re going to make an argument about conflict of laws regarding marriage, I’m hard pressed to understand what marriage rejection cases to cite that would be considered less “full throated.” Please list some citations if you have them!
Obama clearly should have not filed a brief, so that DOMA could be struck down by activist judges against the will of the people, just like a good cartoon caricature liberal. /sarcasm
If DOMA is to be struck down, it needs to be done by the legislative branch. Only then will it be seen as legitimate. If it is struck down in the courts by some twisted reasoning (and it would have to be pretty twisted, since sexual orientation is not constitutionally protected there is no actual constitutional problem with DOMA), then it will (quite rightly) be seen by many as an overstep of the constitutional role of the courts.
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