This was the straw that broke the camelâ€™s back. After a campaign filled with agreeable rhetoric in support of gay equality, we have seen nothing but indifference, back tracking, and even outright slaps in the face from Barack Obama. The selection of Rick Warren to conduct the invocation at the Inaugural kicked off what can only be described as a deliberate right of center policy on gay rights.
Gay soldiers continue to be discharged despite the fact that Obama could use a stop loss order to retain the services of Arabic translators and other hard working military personnel. The repeal of Donâ€™t Ask Donâ€™t Tell has been shelved indefinitely. A commission of some sort to review the policy has been talked about, but not launched. Senate Majority Leader Harry Reid now says the initiative must come from the administration, while the administration notes that only Congress can repeal the 1993 law. And recently, Obamaâ€™s Justice Department wrote a brief asking the U.S. Supreme Court to decline review of a First Circuit panel that upheld Donâ€™t Ask as constitutional. The High Court complied.
Obama has been silent as the states of Iowa, Vermont, Maine and New Hampshire have moved to legalize same-sex marriage. He had no reaction to the California Supreme Courtâ€™s decision in favor of Prop 8, even though he opposed the proposition during his campaign. Although candidate Obama favored civil unions over marriage, he also called for the full repeal of the Defense of Marriage Act and repeatedly spoke up for equal rights and responsibilities, a position supported by a solid majority of Americans. Now, even that mixed message is muted.
Last week, Obamaâ€™s administration filed a 55-page brief in federal court in California, arguing that the 1996 Defense of Marriage Act is sound law, reflecting a cautious, but eminently justifiable â€śneutralityâ€ť on the evolving subject of same-sex marriage, and leaving the states in charge of their own policies.
DOMA does not discriminate on the basis of sexual orientation, wrote the sophistic Justice Department lawyers. Nor does it conflict with any fundamental rights. Although the right to marry is fundamental, they said, thereâ€™s no â€śfundamental right to federal benefits.â€ť Further, allowing gay couples to access those benefits would (somehow) drain the treasury of â€śscant resources.â€ť
The brief went on, reminding the court that other loving twosomes are denied marriage in this country, including uncles and nieces, and other incestuous family pairs. It relied heavily on the 1972 case of Baker v Nelson, a favored citation of conservative analysts who use it to illustrate the moot point that the U.S. Supreme Court disfavored gay marriage back in the day. And speaking of reaching back in time, Obamaâ€™s lawyers cited two 19th century cases for the notion that the Full Faith and Credit Clause may not even require sister states to enforce each otherâ€™s court judgments, a gratuitous claim and complete rubbish in the eyes of modern lawyers.
The reaction from our community was fast and furious, provoking a legal spokesperson to remind everyone that the Justice Department is obliged to defend the laws of the United States. Thatâ€™s another piece of baloney. While the Justice Department does weigh in on behalf of U.S. law most of the time, it is not required to do so. And it is certainly not required to defend a law that candidate Obama pledged to dismantle. Much as California Attorney General Jerry Brown has just filed a brief against Californiaâ€™s anti-gay marriage amendment in the Prop 8 case now developing in San Francisco federal court, Obama was free to authorize his own attack on DOMA. Alternatively, he could have done nothing. And lastly, he could have condemned the lawsuit for its many technical flaws.
This lawsuit is not to be confused with the usual high profile cases we have come to expect from the NCLR, Lambda, or the ACLU. Itâ€™s an ill-conceived publicity hunt by a Southern California ambulance chaser with no background in civil rights law and limited grasp on federal procedure. His previous DOMA challenge on behalf of two gay men, Arthur Smelt and Christopher Hammer, was thrown out of court for lack of standing. The men were not married, nor had they attempted to access a federal benefit. Ergo, they were not in a position to launch a court case based on hypothetical harm.
This time around, Smelt and Hammer are married. But they still lack standing to challenge the Defense of Marriage Act since they have never tried to enforce their marriage in another state, nor have they been blocked from federal benefits by DOMA. All they would have had to do would be to attempt to file a joint tax return, or request any other kind of federal marriage recognition for the record, but they did not.
In addition, their attorneys have arguably bungled a procedural step by filing their case in state court, which lacked jurisdiction. Although the case was moved to federal court, jurisdiction cannot be retrieved after the fact in this manner.
In other words, this case is going nowhere regardless of what the Obama administration has to say about it. No one would have questioned an administration brief that pointed out these threshold problems with the litigation. Indeed, it would have been the logical response. With two other critical federal marriage cases in the pipeline, observers would have assumed that the Justice Department was keeping its cards close to its chest in anticipation of a real contest.
This larger context makes Obamaâ€™s trip to the dark side even more incredible. Although the blogosphere insists the civil servant who wrote the brief was a rogue Bush appointee, I canâ€™t confirm that. Plus, the blame must lie with Tony West, a San Francisco Friend Of Barack â€“ and brother-in-law of San Francisco District Attorney Kamala Harris - who runs the department and who filed the document.
Itâ€™s still tempting to think that the brief was a mistake that slipped through the cracks, an oversight rather than a deliberate assault. But this explanation brings problems of its own.
It means that Tony West and others in the Justice Department have not even glimpsed the issue of same-sex marriage on the horizon, where itâ€™s been since March 3, when the Gay and Lesbian Advocates and Defenders challenged DOMA in Boston federal court. It means that the department ignored the headline news last month, when conservative Ted Olson teamed up with liberal David Boies to announce a federal challenge to Prop 8. Yes, West and company may be excused for not keeping a close eye on the absurd Smelt case. But once the case deadlines were calendared, shouldnâ€™t the subject matter have rung a bell?
Thus we are left to speculate on what the Obama team may do when these other two marriage cases hit their desks. Although Obama technically opposes same-sex marriage, recall again that he has pledged support for repeal of the Defense of Marriage Act and has told us of his â€śfierceâ€ť commitment to national equal rights for same-sex couples. Was this a heartfelt sentiment? Or was it crass political pandering? Weâ€™re about to find out for sure.
In GLADâ€™s lawsuit, the New England attorneys are challenging Section Three of the Defense of Marriage Act on behalf of several married Massachusetts couples. Section Three decrees that marriage will be defined as a union of one man and one woman for federal purposes, and indeed, this section is where DOMA does its main damage. How, GLAD asks, can such a statute conform to the Equal Protection Clause, when you compare the rights of a heterosexual couple married in the Bay State against those of the gay couple next door? The lawsuit is clean and powerful, unlike the kitchen sink of complaints contained in the Smelt case. (Smelt argued among other things that the Defense of Marriage Act was a violation of First Amendment free speech rights.)
Nor would the GLAD case legalize same-sex marriage in any other state. It would simply direct the federal government to respect those lawful marriages that gay men and lesbians have contracted in Massachusetts, Iowa, or wherever. That said, a victory in that suit would encourage gay couples in non-marriage states to travel to wed, creating a class of couples who would then enjoy federal rights, but lack state recognition.
As we go to press, GLADâ€™s lawsuit has already produced one victory. One of the plaintiffs has been allowed to use his married name on his passport, a prime example of the innumerable small but debilitating consequences of DOMA that are not included in the famous 1,278 (or whatever that number is) federal benefits of marriage.
As for the Prop 8 suit, it comprises a federal challenge to a state amendment, much like the Romer case took aim at Coloradoâ€™s Amendment 3. The case doesnâ€™t focus directly on DOMA, but a federal appellate or Supreme Court ruling against Prop 8 on constitutional grounds would effectively topple the whole edifice of marriage inequality.
The notion of Obama arguing that, say, gay couples donâ€™t deserve equal protection, or married gay couples are somehow different from married straight couples for constitutional purposes is breathtaking. Is this what we are about to witness?
The silver lining in the bad brief business has been the intense reaction from the gay community. Within a day or two of the initial outcry, Obamaâ€™s highest ranking gay official, John Berry of the Office of Personnel Management, sat down for an interview with the Advocate, presumably in an effort to mollify the increasingly disgruntled LGBT cohort.
From what I gather, Berry trotted out the usual blather on hate crime laws and ENDA, adding that repeal of the military ban and DOMA were also among the Presidentâ€™s commitments and would be achieved â€śbefore the sun setsâ€ť on the Obama presidency. Berry said a vote on hate crimes in the Senate was around the corner, implying that a stepped up schedule on this tepid piece of legislation will be the preferred bone to quiet us whining dogs.
Then on Tuesday, the administration announced plans to introduce a handful of employment perks for the partners of federal employees. According to a White House press release, these will include family housing allowances, the ability to use sick leave to take care of a partner, and other items that do not include health care. Why not provide the same package that straight employees receive? The long arm of the Defense of Marriage Act forbids it; thatâ€™s why. So thanks for nothing. Obama is the chagrined husband who thinks a bunch of flowers will excuse an infidelity. And to make it worse, instead of roses from the florist, he picks up wilted daisies from the drugstore.
Meanwhile, in case no one has noticed, the streets of Iran continue to roil, the economyâ€™s still a mess, and our two wars continue apace. No doubt we will soon be urged to fall in line with national priorities and stop demanding immediate action on our narrow special interest agenda. But you know what? If Obamaâ€™s government has no time to retain gay soldiers, if they are too busy to lend a hand to bi-national couples and too distracted to speak out for same-sex couples, how come they have all the time in the world to compose lengthy court briefs articulating the case against gay civil rights?
I can see that this topic has overwhelmed the rest of the news this week, and so be it. The New York senate remains paralyzed. Internecine debate proceeds on the pros and cons of an October march on Washington. Angry gay donors are defecting from a big Democratic fundraiser scheduled for next week, and life goes on.
Did any of you happen to see the presidentâ€™s extended display of fly swatting the other day?
Donâ€™t you feel like the fly?