A Defense of Obama, and a Roundup

Lars Thorwald defends the DOJ's brief in Smelt on the basis that Obama is keeping his promise to uphold the laws. Andrew Sullivan buys it. I don't.

I want to address the brief filed in support of the Defense of Marriage Act. That Act preceded Obama. He inherited that law. It was on the books when he came into office, and because it has been challenged, he and his DOJ have an obligation to defend the law if there is a legal basis to defend it.

Thorwald slides past the big question here: is DOMA actually legally defensible? There are serious questions about that, which he doesn't address. The arguments presented in that brief are, to be kind, tenuous -- DOMA doesn't violate our rights under the Constitution because we're free to marry, as long as it's to someone we can't love and don't want to marry? It's constitutional because it saves the government money? No precedent recognizing marriage as a fundamental right or recognizing the right of citizens to form intimate relationships without government interference has relevance? If these are legitimate legal defenses, we are in serious trouble in this country. (Dale Carpenter has some observations on the quality of the arguments advanced:

It's identical in form to the defense of Texas's Homosexual Conduct law in Lawrence v. Texas: a law banning only gay sex doesn't discriminate against gays because it equally forbids homosexuals and heterosexuals to have homosexual sex and because it equally allows homosexuals and heterosexuals to have heterosexual sex. This sort of formalism has incited howls of laughter over the years when made by religious conservatives. Now it's the official constitutional position of the Obama administration.

The interesting thing is that Carpenter says that much of the brief seems defensible to him, and then proceeds to what is, in my reading, a complete take-down.)

Thorwald also makes the flat assertion that John Aravosis is wrong is saying that the administration is not obligated to defend the law in court, but offers no real support for that. We all know that I don't buy argument by assertion here. Aravosis is a lawyer, too, and he's not an idiot. Volatile, but not an idiot.

And Thorwald ignores the tone and language of the brief, which is what is fueling most of the outrage.

It seems that DKos has become the official blog of the Obama administration. (This isn't the first time in recent days that the gay community has been told on the blog to cool it.)

Here's another defense, from one of Sullivan's readers, that I find more persuasive. However, Sullivan picks up on the same point I did above:

But the zealous defense of DOMA - including repeating countless spurious and unnecessary slurs against gay people - need not be a lawyer's duty. It is a choice by his political superiors. It is not the fact of this brief, it is its contents and rhetoric that sting. They did not have to go this far.

In trying to understand why the Obama administration would seek to go to such lengths to make arguments embraced by James Dobson I tried to give them the benefit of the doubt. I was probably wrong. The more I learn the clearer it is that this was a conscious decision by Obama's DOJ to use evey conceivable argument to kill any constitutional attack on DOMA. At the same time, they are clearly committed to doing nothing in the foreseeable future to enact any redress for those couples currently denied their civil rights. On top of this, they obviously did nothing to prepare gay couples or any gay leaders for this swipe at them. Why? Are relations that broken? Some judicious explanation ahead of time would surely have been in everyone's interest. But again, one gets the impression that for the Obama administration, gay people are a burden, a distraction and a bore. (Emphasis mine)

Jim Burroway has another roundup of reactions.