DOMA defense worse than we think

While it can be argued that the DoJ has to defend DOMA, which (like it or not) is the law of the land right now, much of the fuss and bother over the DoJ's brief is in its savage depiction of gays and lesbians. It's every awful right-wing talking point. Just imagine what it will cost us in the political struggle to have THESE words thrown back at us as "Obama's DoJ says..."

John Culhane writes it's even worst than we think.

.... 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.....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.

Another lawyer at Lawdork:

Even if one argues, as I often have, that a government lawyer — from the Department of Justice to state attorneys general — must defend even those laws with which one disagrees*, such a lawyer needn’t overstate his or her case. The government lawyer defending a statute with which she disagrees needn’t add gratuitous demeaning statements into the legal brief she files.

Lawdork notes with some sarcasm in a related post,

It’s good to know that as Obama Department of Justice was putting the finishing touches on its pro-DOMA Motion to Dismiss in Smelt v. United States, it sent its highest-ranked openly gay Administration official to praise the President at an LGBT event at the DOJ....Although he didn’t realize, Berry’s question is best posed to the president or Holder themselves: “Where do you stand? Honoring love as precious and true wherever you find it, or with those who would demean or deny it?” In its DOMA filing, the Justice Department both demeaned LGBT people and denied our love.

Others are also gobsmacked. From The Independent Gay Forum:

It is gratuitously insulting to lesbians and gay men, referring (unnecessarily) to same-sex marriage as a “form” of marriage, approving of congressional comparisons between same-sex marriages and loving relationships between siblings, or grandparents and grandchildren, and arguing (with a straight face, I can only assume) that discrimination against same-sex couples is rational because it saves the federal government money. There are some respectable arguments in this motion, and this kind of disrespect is offensive.

Andrew Sullivan:

The deployment of arguments that refer to our relationships as equivalent to incest, that demand that we simply marry someone of the opposite sex if we want our civil rights, that implies federal recognition of our civil marriages would mean taxing some Americans to pay for something they abhor: this is simply salt in the wound, and it will be deployed and used by every far right gay-hater in the future, and cited as endorsed by the Obama administration.

The mainstream gay groups say (including ACLU, GLAD, Lambda Legal, NCLR, HRC and NGLTF)

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.

The Justice department scrambled to defend themselves.

As it generally does with existing statute, the Justice Department is defending the law on the books,” said Justice Department spokesperson Tracy Schmaler. “As you know, the president has said he wants to see a legislative repeal of DOMA, but until Congress passes legislation repealing the law, the administration will continue to defend the statute when it’s challenged.

The president, that "fierce advocate"? Sullivan again:

I also understand the need to defend existing law. But the zealous defense of DOMA - including repeating countless spurious and unnecessary slurs against gay people - need not be a lawyer's duty. It is a choice by his political superiors. It is not the fact of this brief, it is its contents and rhetoric that sting. They did not have to go this far.....The more I learn the clearer it is that this was a conscious decision by Obama's DOJ to use evey conceivable argument to kill any constitutional attack on DOMA. At the same time, they are clearly committed to doing nothing in the foreseeable future to enact any redress for those couples currently denied their civil rights. On top of this, they obviously did nothing to prepare gay couples or any gay leaders for this swipe at them. Why? Are relations that broken? Some judicious explanation ahead of time would surely have been in everyone's interest. But again, one gets the impression that for the Obama administration, gay people are a burden, a distraction and a bore.

This brief goes beyond narrow definitions and legal parsing. It's brutalizing. And for an administration that is supposed to be so on the ball, so talented, so on-message, it's hard to believe that no one reviewed this. Knowing how the GLBT community has been feeling, it's absolutely remarkable that a brief straight out of the Bush era got though with these kinds of arguments. So, I see several possibilities. (1) Sullivan is right, and the White House doesn't care. (2) it has made a calculating decision to make the GLBT community the whipping boy, to show the right-wingers in this quest for bi-partisanship that they can all agree on the icky gays, or (3) it is hoping this thing gets refute forcefully in court. But wouldn't possibility (3) be against legal ethics? Lawyers don't write briefs intending to lose. So sadly, regretfully, I can't see much likelihood in (3).

And this vicious hurtful brief was ironically released on June 12, the 42nd anniversary of Loving v. Virginia.

Update From Joe Sudbay

Yesterday, a Democratic President of the United States of America, in the year 2009, and an African-American child of inter-racial parents no less, gave his lawyers the go ahead to compare our marriages to incest on the same day that 42 years ago the Supreme Court ruled in his parents' favor in Loving v. Virginia. And these people, along with our President, are suggesting that the appropriate response is to shrug our shoulders and go home, since, after all, the law is the law?

Update from gay activist David Mixner:

You fully need to understand the ramifications of this brief: it undercuts every conceivable argument that the LGBT community would use to fight for the repeal of DOMA. Right-wing nut cases can now just simply quote horrible stuff from this hateful brief and proclaim loudly it was filed by the Obama Justice Department. The President and his team have not only undercut this community but have damaged his own ability to repeal this hideous law given to us by President Clinton. With Democratic friends like these, God helps us.