On June 12, even as the election in Iran was happening and sweeping everything else out of the news cycle (a subject on which much digital ink has been spilled, to which I have nothing to add except that it’s nice to see a population care enough about democracy to take to the streets over it; that Obama has been responding to the situation with admirable discretion; and that the conservatives criticizing him are idiots who understand nothing about public diplomacy and would probably still attack him if he released a statement celebrating motherhood and apple pie)… the Obama administration did something unfortunate that produced an incensed reaction from observers in the civil liberties and GLBT communities.

Namely, the Department of Justice submitted a legal motion [pdf] putting this administration on the record defending the 1996 Defense of Marriage Act, and arguing to dismiss Smelt v. United States, the first same-sex-marriage related case to reach the federal courts.

This isn’t about the merits of equal marriage per se (which Obama has long been on the record as opposing, unfortunately). It’s a challenge to the validity of DOMA, under which the federal government (and other states) are not obliged to recognize same-sex marriages that are legally constituted in states that allow them (as is the case with these plaintiffs)—never mind that pesky “full faith and credit” clause, among other Constitutional provisions. It is, in short, a law that formally enshrines discrimination.

It was a bad law when Bill Clinton signed it, and it’s a worse one today now that the situation it contemplates is not merely hypothetical. And it’s a law that candidate Obama loudly opposed.

When he was running for the Senate in 2004, Obama said

It should be repealed and I will vote for its repeal on the Senate floor. I will also oppose any proposal to amend the U.S. Constitution to ban gays and lesbians from marrying. This is an effort to demonize people for political advantage, and should be resisted.

When he was running for president in 2007, Obama said,

If elected, I would call on Congress to enact legislation that would repeal DOMA and ensure that the over 1,100 federal legal rights and benefits currently provided on the basis of marital status are extended to same-sex couples in civil unions and other legally recognized unions.

He was quite right to say these things, although he was lambasted for it by the right. (The same site where I found the first quote above indignantly defended DOMA as “an attempt to prevent the spreading of groundswell squeaky wheel partisan special interest group whackos from arm twisting the courts into allowing for gay marriage.”)

Now he’s being lambasted from the left, and particularly the GLBT community. Some commentators are explicitly putting the blame for this legal filing directly on Obama himself.

The most charitable spin that could possibly be put on this move is that it’s the executive branch’s job to enforce the laws on the books, not to pick and choose among them—something for which people justifiably criticized the Bush administration. Obama may want to see the law changed, but until Congress or the courts actually do so, it’s not in his job description to ignore it. As DOJ spokewoman Tracy Schmaler put it

“The president has said he wants to see a legislative repeal of the Defense of Marriage Act because it prevents LGBT (lesbian, gay, bisexual, transgender) 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.”

However, that doesn’t account for (much less justify) the substance of the brief that was actually filed. While arguing that the court should dismiss the case for lack of standing and subject-matter jurisdiction rather than reach the legal and moral merits, it nevertheless addresses all of those merits. The plaintiffs, to quote the DOJ motion, 

make a number of claims against DOMA.  Specifically, they allege that Section 2 violates the Full Faith and Credit Clause and their “right to travel,” that both sections of DOMA violate the Due Process Clause of the Fifth Amendment (including its equal protection component) and their “right to privacy,” and that Section 3 violates their “right of free speech” and their “rights” under the Ninth Amendment.

In response, the motion  doesn’t merely defend DOMA on technical grounds. It asserts that the law represents “federal neutrality” (not straightforward discrimination as it appears); defends the reasonableness of preserving “traditional” marriage; analogizes same-sex marriage (via legal precedents) to incest and cousin marriage; and advances novel arguments for why DOMA doesn’t violate equal protection or due process, because the law itself doesn’t directly block anyone’s right to marry and thus allegedly implicates no fundamental rights or suspect classes, but merely “preserves for each State the authority to follow its own law and policy”—noticeably akin to logic that didn’t pass muster in 1967’s Loving v. Virginia when argued in regard to interracial marriage (which this brief rejects as an analogy). It sums things up with the twisted proposition that 

…gay and lesbian individuals who unite in matrimony are denied no federal benefits to which they were entitled prior to their marriage; they remain eligible for every benefit they enjoyed beforehand. DOMA simply provides, in effect, that as a result of their same-sex marriage they will not become eligible for the set of benefits that Congress has reserved exclusively to those who are related by the bonds of heterosexual marriage. In short, then, the failure in this manner to recognize a certain subset of marriages that are recognized by a certain subset of States cannot be taken as an infringement on plaintiffs’ rights.

Some of the best ongoing coverage of this story comes courtesy of Andrew Sullivan’s blog at The Atlantic. He tracks the emerging controversy (framing the brief not inaccurately as “a gratuitous insult to gay couples”); identifies the author of the brief as W. Scott Simpson, a Bush administration appointee known for reactionary politics;  acknowledges counterarguments; and comes to the conclusion that at best, the Obama administration is “clearly committed to doing nothing in the foreseeable future to enact any redress for those couples currently denied their civil rights.”

There are, in fact, counterarguments, and not just from right-wingers. Harvard law professor Laurence Tribe, famously progressive and a dedicated civil libertarian who was by most accounts a strong influence on Obama’s thinking about the Constitution, points out that Smelt is by no means the strongest case around in terms of its challenge to DOMA, and in strategic terms it would be better if this case went away rather than reaching today’s notably conservative Supreme Court and possibly resulting in a damaging long-term precedent. He points to the virtues of a case filed by GLAAD in Massachusetts, which approaches the issue “with more of a scalpel… than a bludgeon.” He also reiterates that the executive does have an obligation to defend the law, and “that the solicitor general traditionally seeks to dismiss lawsuits against federal laws whenever there is a plausible basis to do it.”  

On the other hand, former Clinton aide Richard Socarides argues from personal experience that the obligation to defend the law doesn’t necessarily trump other considerations “in all cases”… and that no matter what, the specifics of this brief remains indefensible, “a veritable kitchen sink of anti-gay legal theories.” The correct approach, he maintains, should be as follows: “The president makes a policy decision first and then the very talented DOJ lawyers figure out how to apply it to actual cases.”

Just this past Sunday, Connecticut Senator Chris Dodd has publicly changed his mind about equal marriage, declaring that

I was raised to believe that marriage is between a man and a woman. …But the fact that I was raised a certain way just isn’t a good enough reason to stand in the way of fairness anymore. The Connecticut Supreme Court, of course, has ruled that such a distinction holds no merit under the law. And the Court is right.

Between this and the consistently principled stand he took during last year’s primaries on the issue of FISA reform and warrantless wiretapping, Dodd is emerging as quite a defender of civil liberties late in his career. We would all be better served if the president, who defeated him in those primaries, would be as forthright and outspoken on these issues.

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