DOMA Fury

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Civil Rights, Obama Administration

[UPDATE BELOW.]

I have to echo PZ Myers: Obama screws up, very, very badly.

The basic facts, as I understand them: The Justice Department moved to dismiss the first gay marriage case filed in federal court. The case was brought by a couple married in California, Arthur Smelt and Christopher Hammer. Smelt and Hammer brought a constitutional challenge to the Defense of Marriage Act, which says that the federal government and states without same-sex marriage don’t have to recognize the marital status of same-sex couples lawfully married in a state that provides for same-sex marriage. Smelt and Hammer argue that DOMA is in violation of the Constitution on several grounds, such as the Full Faith and Credit part.

The Justice Department argued (as I understand it; I admit this doesn’t make sense to me) that Smelt and Hammer had no legal standing to sue because the status of their marriage in California is not in question and punted the constitutional question. If anyone can explain this, please feel free to do so. I’m baffled.

Most of the Left Blogosphere is outraged, and the GLBT community feels betrayed. I’ll let Pam Spalding explain this POV.

There are a few defending the Obama Administration on the grounds that, while we may wish the law to be otherwise, the law is the law; see Sully. However, even Sully admits there is language in the DoJ’s brief that is outrageous and homophobic and inexcusable.

My understanding is that the DoJ is still largely infested with Bush appointees. While this is not an excuse, it might be an explanation. President Obama’s Attorney General should answer for this.

Update: Andy Sullivan writes that the DOMA brief was written by a Bush Administration holdover, which confirms my suspicion. “The harsh rhetoric, the gratuitous attacks on our relationships … they were written by someone who was given an award by Alberto Gonzales for his defense of the Partial Birth Abortion Act.” As I thought, but that doesn’t excuse the Justice Department for signing off on it.

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19 Comments

19 Comments

  1. Dolorous Stroke  •  Jun 13, 2009 @2:13 pm

    I believe the DOJ said that Smelt and Hammer don’t have legal standing because they live in California, where their marriage is recognized. If they were to move to another state that didn’t recognize their marriage, I think they would then have the standing to sue.

    It would be one thing if the DOJ had only argued this narrow technical point, but it unfortunately appears that they went much further.

  2. Mike Goldman  •  Jun 13, 2009 @2:58 pm

    On the narrow point of standing the DOJ is probably correct, and this suit is premature.

  3. joanr16  •  Jun 13, 2009 @4:05 pm

    I think the administration’s going to learn the hard way, when it comes to same-sex marriage. As Dolorous Stroke points out, if the DoJ had only (perhaps correctly) argued a technical point on legal standing, that’s one thing. But the administration messed up, quite seriously, and will lose old friends over this. I doubt they will gain any new friends… certainly none worth having.

  4. c u n d gulag  •  Jun 13, 2009 @4:13 pm

    DOMA as law – either it is, or either it ain’t. It seems like they were parsing to me.
    I’ll try to read it later tonight or tomorrow morning. (Does anyone know of any good summary?).

  5. Dave S  •  Jun 13, 2009 @5:47 pm

    c u n d gulag – Search Wikipedia for Defense of Marriage Act. They have a good, up to date summary. I tried posting the link, but I seem to be running afoul of the twit filter. God help me, I know I’m a twit, but …

  6. c u n d gulag  •  Jun 13, 2009 @6:27 pm

    Dave S,
    I’m a major twit, too… My comments are always being ‘moderated.’ I guess maha knows me well…
    And thanks, but what I was looking for was the ‘reader’s digest’ version of what happened yesterday.

  7. canCanMan  •  Jun 13, 2009 @7:09 pm

    Maybe I’m missing something, but why is every article behind those links calling this Obama’s decision? Wasn’t it the Justice Department? It’s one thing for the Department to come out with a ruling like this, but it would be another thing entirely if Obama wrote this himself and signed it.

    I mean, I totally disagree with it, but liberals are usually more precise in their language than to say “the DOJ = Obama”.

    Am I missing something?

  8. canCanMan  •  Jun 13, 2009 @7:10 pm

    Maha seems to be saying it, too, and I’m wondering why that is.

  9. joanr16  •  Jun 13, 2009 @8:39 pm

    canCanMan: the DoJ is part of the executive branch of the federal government. It’s headed by the Attorney General of the United States, who is a presidential appointee. The AGOTUS’s boss is the president.

    So, DoJ = Obama administration. That’s why that is.

    Obama has a poor history on the issue, too. During the campaign, he explicitly said he opposes legalizing same-sex marriage. Rather, he said he supports same-sex “civil unions.” In other words, he supports “separate but equal” (yeah, right) laws for homosexuals. If I were to have 5 minutes alone with President Obama and his security detail in an elevator, this is the one thing I would want him to explain to me. (“When the hell we getting out of Iraq, sir?” only comes in second.)

  10. joanr16  •  Jun 13, 2009 @8:57 pm
  11. joanr16  •  Jun 13, 2009 @8:59 pm

    Gulag, I got “moderated” trying to post a couple links for you. Try looking up “Department of Justice” on Yahoo! News Search. The Advocate has some interesting links, also Canada’s news service.

  12. joanr16  •  Jun 13, 2009 @9:10 pm

    This is from the Advocate (link currently awaiting moderation). Laurence Tribe of Harvard Law explains:

    Under the traditions of the solicitor general’s office, the government does have an obligation to provide a defense in any lawsuit where there is a plausible argument to be made, even if the president does not agree with the law….

    There are ways for the president to get rid of DOMA. He can advocate for its repeal, he can eventually urge the solicitor general to join in a more surgical attack, but he certainly isn’t obliged to go along with every plaintiff who brings a lawsuit.

    The important point here is that the solicitor general traditionally seeks to dismiss lawsuits against federal laws whenever there is a plausible basis to do it. A lot of the outcry about the administration’s position doesn’t take that institutional reality into account.

    It doesn’t surprise me very much because I understand the frustration of some of the groups. They have lived under the burden of DOMA, of “don’t ask, don’t tell,” for a long time, and they understandably hoped that this would be an administration that would side with them on these issues.

    And I think the frustration of having to wait so long for a progressive and intelligent president who, nonetheless, occasionally does some things that people find disappointing on matters that cut deeply into where they live — it’s understandable that would lead to some strong reactions in this case.

    Tribe feels Smelt is a very weak case that would lead to a decision reinforcing DOMA, which he believes is unconstitutional.

  13. c u n d gulag  •  Jun 14, 2009 @7:24 am

    joan,
    Thanks! :-)

  14. Bill H  •  Jun 14, 2009 @11:51 am

    The AGOTUS’s boss is the president.

    Actually, that is incorrect. Once appointed, the Attorney General functions independently. Yes, he “serves at the pleasure of the President,” but he and the Department of Justice function without instruction from the President. The President can fire the AG, but he cannot tell him what to do. The White House Counsel is the legal advisor to the President.

  15. joanr16  •  Jun 14, 2009 @2:10 pm

    Bill, I never said the AG advises the president on legal matters. The AG is a member of the president’s cabinet, and the DoJ is part of the executive branch. It is not independent of administration policy, not that I’ve observed in the past 35 years.

  16. Brien Jackson  •  Jun 14, 2009 @8:22 pm

    My guess would be that the brief wasn’t read by any political appointees prior to being filed, on the assumption that there wasn’t really any use in reading a brief arguing (pretty banally) that the plaintiffs lacked standing.

  17. Crawdad  •  Jun 15, 2009 @4:14 am

    I haven’t heard any repudiation of the brief from AG Holder or his boss.

  18. maha  •  Jun 15, 2009 @7:56 am

    Drawdad — “I haven’t heard any repudiation of the brief from AG Holder or his boss.”

    I haven’t either, and I think the administration will be making a huge mistake if they don’t at least repudiate the homophobic language in the brief.

  19. Bill H  •  Jun 16, 2009 @12:48 pm

    It is not independent of administration policy, not that I’ve observed in the past 35 years.

    Well, it is certainly supposed to be. What was all the flap about the firings of the 9 AG’s, one of them here in San Diego, for what appeared to be political reasons? At the time, there was much prating about how the DOJ was supposed to “function independently” from the president and shock and horror that AG’s were being fired for not doing the president’s bidding.

    The DOJ has one function and only one; to uphold the law. It does not carry out presidential policy, or make law, or interpret law. It enforces the law independently of the influence of policy or politics. Under Bush it was corrupted and failed to be independent. It did not enforce the law as the law was written, it carried out Bush policy under the color of law.

    Just because we like Obama policies does not mean that it is okay for the DOJ to carry out Obama policies under the color of law. It still is not the function of the DOJ to do that.



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