The anger and disillusionment continue unabated from the Department of Justice’s (”DOJ”) brief filed in the Smelt case. The case challenges (among other things) the Defense of Marriage Act (”DOMA”), and DOJ just moved for dismissal. As I wrote yesterday, the brief will stop you in your tracks, as it recites terrible homophobic cant. For example: DOMA doesn’t discriminate, as gays and lesbians can marry – just not members of the same sex.
The fact that this story has gotten any traction at all — it’s a legal brief, hardly the stuff of blogosphere excitement, and it’s competing with the minute-by-minute implosion in Iran — is a testament to two related facts:
(1) The contents of the brief (more than the decision to file such a motion) betray an astonishing tone-deafness to the LGBT community. With a few exceptions, most measured legal academics have taken pretty much the position I set forth last night: Defend DOMA if you have to, preferably on procedural grounds, but there’s no need to make arguments against gay equality that it will be tough to walk back from. Art Leonard, one of the founders of the legal gay rights academic movement, is a real voice of reason here. I recommend reading his entire post, which provides a clear analysis of the other (more defensible) grounds for the DOJ’s arguments. But on the substantive arguments:
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for dismissing the case, according to the Justice Department, is failure to state a valid legal claim. They argue that every legal ground presented by the plaintiffs for attacking DOMA is so lacking in any possibility of winning that the court should just dismiss the case. Here is where the trouble comes, and why all of the LGBT litigation groups have blasted the Justice Department (and the Obama Administration, for after all the buck stops with the President for every act of his administration, regardless whether he was specifically aware of it). Some of the arguments made are so specious and prejudicial that they sound atrocious coming from this administration.
“The one that bothers me the most is the argument that there is no anti-gay motivation behind DOMA, merely a desire by Congress to pursue a policy of “neutrality” with respect to the issue of same-sex marriage in a situation where some states might allow such marriages while others would oppose them. This is absurd.”
(2) On a more cosmic level, the brief seemed to have blown into the open a dormant suspicion that Obama isn’t really much of friend of the gay community, after all. He’s done little or nothing so far (face it, Kool-Aid drinkers1), and this latest action is likely to cripple the argument that he’s simply being smart and strategic. His (atypically) halting comments on marriage equality during the Brian Williams interview might now be seen as a kind of prelude to this filing.
And as much as it pains me to admit this, we ignored at our peril his decision to retract his early-stated support for marriage equality: In 1996, while running for Illinois State Senate, he’d filled out a questionnaire stating that he supported same-sex marriage. Then he backed away, further and further. Here’s a Windy City Times reporter on the issue:
“In a January 2004 interview I conducted with Obama at the Windy City Times’ office, Obama clearly stated that lack of support for full marriage equality was a matter of strategy rather than principle, but in even more recent comments, it appears he is backing off even further, saying it is more of a religious issue, and also a “state” issue, so he favors civil unions.”
Conveniently (for whom?) this story didn’t break until shortly before the Inauguration, but it should have concerned us more. Well, we’ve been here before (see Clinton, William J.) Husband political power by throwing us overboard. I don’t think it’s even necessary, as a political matter, to do this, but why take any risk at all? Apparently, there aren’t enough of us to matter.
http://wordinedgewise.org/blog/2009/06/13/a-few-further-thoughts-on-the-dojs-doma-brief/
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