[T]he Republicans who run Congress may now be tempted to follow the administration's subtle suggestion in its Wednesday announcement that Congress should act to defend DOMA in court itself if it disagrees with this move.
That would be a mistake....
The defenders of California’s Proposition 8, who rushed in when that state's governor and attorney general refused the job, learned this lesson in a federal case last year, when their arguments and witnesses were utterly dismantled by the all-star legal team of David Boies and Ted Olson....
True, political discourse in America, particularly when it comes to the rights of gays and lesbians, has not always been characterized by the application of perfect logic to empirical data from qualified experts. If House Speaker John Boehner and his fellow Republicans elect to wage a fight for DOMA, they will undoubtedly phrase their announcement in the culture war language that plays so well with their party base.
But then, the Republicans and their lawyers will have to step into federal court and prove -- subject to cross-examination -- how the republic would be damaged if same sex spouses can get, say, federal railroad retirement benefits. As Boies said after dismantling that disqualified expert in the Proposition 8 trial, "the witness stand is a very lonely place."
Moreover, the gay marriage opponents during that Proposition 8 trial didn’t just look dumb -- they looked mean. Homophobic campaign ads looked very different when they were played in a building devoted to equal justice than they did when they appeared on niche cable channels. The congressional record from the original DOMA debate in 1996 is filled with assertions about immorality and sinfulness that were acceptable in polite company back then (perhaps), but that will sound very different today.
As Republican House members contemplate stepping in to defend the Defense of Marriage Act, they might want to consider all of these negatives. Oh, and that poll showing how many Republicans oppose gay marriage? In the 2010 election, the issue polled at dead last among voters' concerns.
Friday, February 25, 2011
A trap for REpublicans?