There's a lot of outrage being expressed in the gay press, on gay blogs and on Facebook over the Department of Justice's brief defending DOMA in
Smelt v. United States. The organization I work for has even
issued a statement, along with other LGBT groups, criticizing the DOJ's arguments.
The problem is, the most outrage coming from
John Aravosis,
Queerty and others is over the fact that the DOJ is defending DOMA in the first place. That's just crazy talk. When someone sues the United States, it is the DOJ's job to defend the government against the lawsuit. For them not to would be like if you were being sued and your lawyer said "well, I'm not going to defend you because I kind of agree with the other side." Moreover, it would set a horrible precident that could be used against us under a conservative administration.
New York Law School Professor Arthur S. Link has a
great explanation on his site:
Some have criticized the government for defending DOMA and DADT in the courts. Actually, this is the Justice Department's job, especially in the case of statutes that have been upheld by the courts many times. DADT has been under continual attack in the courts since the mid 1990s, and suits challenging DOMA date back almost as far, and neither have succeeded yet. In a stand-off between the legislative branch and the executive branch about the constitutionality of a law, I'm not sure I would feel good about the executive branch being free to decide which validly enacted laws it is going to enforce. That sounds too much to me like George W. Bush's position that as commander in chief he could ignore any law that gets in his way in carrying out his strategy for preserving national security. Demanding that the President or the Attorney General refuse to enforce a law with which they disagree as a matter of policy because they believe it may be unconstitutional or because they advocate its repeal is a dangerous demand to make, and arguing that they should refuse to defend an existing federal statute in court comes dangerously close to that.
Aravosis tries to argue that the Obama administration could have refused to defend DOMA in the
Smelt case by disingenuously citing previous situations where the DOJ declined to defend the government in a lawsuit. But in all four examples, the law in question was obviously unconstitutional based on previous SCOTUS decisions. There has never been a SCOTUS decision on same-sex marriage (save
Baker v. Nelson, which was really just a punt), so to suggest that this question has been settled and the DOJ would be justified in NOT defending DOMA is just absurd. (Even more frustrating is that major news outlets, including
CBS, have quoted Aravosis's contention that the DOJ could have refused to defend the government as fact - without ever doing any actual research to find out if it is true.)
Now don't get me wrong: there is much to criticize President Obama for in his handling of LGBT rights, both in this case and elsewhere.
Smelt has some serious issues - including big jurisdictional problems and the fact that the plaintiffs haven't alleged any particular injury - which could have been used to get the case dismissed without ever having to defend DOMA on its merits. The strange new argument that DOMA keeps the federal government neutral on the question is just patently absurd.
Elsewhere, Obama has still not issued an executive order banning transgender discrimination in federal employment and requiring government contractors not to discriminate on the basis of sexual orientation or gender identity - something he could have done on his very first day in office. And his public positions on passing ENDA and repealing DOMA and DADT have not been as robust as one would expect from a man who claimed he'd be a "fierce advocate" for the LGBT community.
So yes, we need to call out the administration and apply pressure on Obama to live up to his campaign promises. But to go apoplectic because the DOJ did its job by defending the government against a lawsuit just makes our side look naive and reactionary.
Labels: Barack Obama, Smelt v. United States, the gays