The Obama Administration’s Defense of DOMA

Late last week, the Obama administration filed its brief in response to a federal court challenge of DOMA.  (AmericaBlog first reported this on Friday.)  The consensus seems to be that the DOJ went much further than it needed to go.  Instead of challenging the claimants on jurisdictional grounds, the DOJ’s brief supported DOMA on constitutional grounds, and made some highly offensive arguments as well.

From Dale Carpenter (read his whole post — it’s very interesting from a lawyer’s point of view):

Continuity continues. The Obama Justice Department yesterday filed a brief urging a California district court to dismiss a little-known constitutional challenge to DOMA filed in late 2008 by a married gay couple. (No, it’s not the Olson/Boies challenge to Prop 8.) The brief makes some unexceptional jurisdictional arguments about standing and immunity. For lots of reasons, gay-marriage advocacy groups would like to see this case go away, but go away without damage to the substantive constitutional case against DOMA. A dismissal on jurisdictional grounds would nicely suit that purpose, and that seems to me the most likely outcome.

But the DOJ brief goes further than it needs to go at this point in the case by addressing the merits of the constitutional issues in the case, which attacks both DOMA Section 2 (interstate recognition) and DOMA Section 3 (federal recognition). There’s a hodge-podge of claims in the case. Everything from the Full Faith & Credit Clause to freedom of speech is hurled at DOMA by the claimants.

Of most interest is what the DOJ has to say about the due process and equal protection claims, rejecting just about every single variation of an argument that gay-rights scholars and litigants have made over the past 30 years.

In running rough-shod over settled law, the DOJ really goes after gays and lesbians, comparing gay and lesbian relationships to incest and pederasty, as well as saying that allowing gays and lesbians to marry amounts to subsidizing them by increasing Social Security costs.  Read the whole brief.  It is as eye-opening about the Obama administration as it is offensive.  And this, from the Obama administration.  It could just as easily have been written by George W. Bush’s DOJ.

This brief has even caused HRC (HRC!)  to respond, politely saying how offensive it is.  What’s missing from Solomonese’s letter, though, is what happens next from gay groups, assuming Obama does nothing.  It’s really a very good letter, but there is absolutely no incentive for Obama to do anything.  There is no reminder that gays and lesbians worked very hard to get him elected, thinking that somehow Obama was different when it comes to gay rights.

As Pam’s House Blend says:

Now with the carrot, comes the stick. There is no call for the administration to use its bully pulpit to move our legislation. Sending it passively up to the Hill’s jellyfish leadership is akin to not sending it at all.

Also, what happens next if the President thumbs his nose at this letter? The gauntlet has been thrown down with an appeal to decency. Is the Obama administration going to toss this in the ashcan (hello, Rahm)? This is the dilemma that HRC faces as our advocacy group on the Hill. Now the WH knows HRC is angry, will it call a bluff of some kind, as in “you have nowhere else to go”?

Seriously, I’m glad this letter is finally heading to the President, but considering the callous way our issues have been treated — by Obama’s silence and the evasive contempt of Robert Gibbs, it’s highly likely that the response will be silence or, humorously (NOT), telling us that they “feel for us” and again toss out “we had to do it” and try to take our eye off of the DOMA ball with the acceleration of hate crimes legislation.  There needs to be a plan to follow up any response to the WH that doesn’t look like a retreat or a whimper.

As AmericaBlog says:

I would quibble with HRC about one small point. At the end of the letter they call on Obama to send legislation to Congress that would repeal DOMA. That’s great. But it’s not enough. At this point, I think the community is far beyond the point of Obama “sending” legislation, and then doing nothing to get it passed. We want action. Action on DOMA, DADT and ENDA. We expect the president to stop filing briefs on behalf of DOMA, to actually lift a finger, or even two, to get DOMA passed, and to stop discharging gay soldiers, immediately. (ENDA is its own nightmare – I don’t think it’s going anywhere.) Submitting legislation will simply not cut. I sincerely hope the administration doesn’t think it will.

Read the linked “But it’s not enough” post.  Aravosis really lays it out.  We want:

1. A repeal of DOMA
2. A repeal of DADT
3. An ENDA bill that doesn’t leave out a group of people — transgendered people are left out of the current ENDA bill working its way through Congress.

It’s really simple.  During the campaign, Obama said that he would be a fierce advocate for gays and lesbians and our rights.  We worked very hard to get Obama elected, and we’re becoming disillusioned.  When does the nation’s first African-American president get involved in the biggest civil rights battle of our generation?  When does the fierce urgency part start?