DOMA, Once Again

And, I suspect, not for the last time.

Joe Sudbay has a good, strong post on the "defenses" of the Bush -- um, I mean Obama administration's brief in support of DOMA:

Lawyers get very sanctimonious about the law, and the need to obey the law and legal precedent, above all else. But, the law can be very fluid -- and lawyers are taught in law school to find new ways to interpret words. Lawyers who craft new legal strategies and theories that sway courts are venerated in history as civil rights heroes (we even name buildings and airports after them). So, the notion that the Obama administration had only one recourse yesterday -- to file a brief in support of DOMA -- is very narrow legal thinking. Sure, the brief was a legal document, but it was also very much a political document. It had the backing of the President of the United States. And anyone who says that Republican and Democratic presidents alike don't let their politics influence their arguments before the courts is either a liar or terribly naive.

It seems to me that Sudbay shouldn't have to point this out. Any legal document comes from policy, and policy is always a political phenomenon. Laws don't exist in a hermetically sealed environment, and to maintain that they do is, to put the best face on it, naive indeed. To maintain that the administration has no choice but to defend a law that the president has vowed repeatedly to repeal is disingenuous. To maintain that Obama, in filing this brief, is upholding his promise to return us to the rule of law, as Lars Thorwald did in that ludicrous DKos post that I noted yesterday, is somewhat worse than disingenuous.

Pam Spaulding noted Sudbay's post and commented on it herself. She included this (sadly, no link):

Journalist Karen Ocamb asked Jon Davidson, Legal Director at Lambda Legal to comment on the brief and the choices the Obama DOJ had -- and decided to follow through with on this civil rights issue.

Whether or not the administration felt a need to defend, there are many ways one can defend. The administration could have rested on the first two arguments raised in their papers (jurisdiction and standing) that these plaintiffs were not entitled to sue without arguing at this point that DOMA is constitutional. Doing that would not have waived those arguments. What they need to be asked is why they gratuitously went out of their way to make the outrageous arguments they unnecessarily included such as that DOMA does not discriminate based on sexual orientation or that the right at issue is not marriage but an unestablished right to "same-sex marriage" or that DOMA is somehow justified in order to protect taxpayers who don't want their tax dollars used to support lesbian and gay couples (while it's apparently fine to make lesbians and gay men pay the same taxes but be denied the benefits provided heterosexual couples). Their public statements about the filing try to sidestep these points. They absolutely knew they did not need to make these additional arguments, especially at this time and consciously decided to do so. I am seething mad.

When will our progressive "friends" address this? We're waiting.

I think we're going to be waiting for answers on this one for a long time.

David Link has a good analysis of why the DOJ brief is such a disaster. It almost answers the questions, but I have a couple more:

The vast majority of employees at the DOJ, as with most government entities in the U.S., are civil servants protected from the political winds that blow through the top of their organizations. In that sense, every civil servant at DOJ is a Bush (and perhaps Clinton, and perhaps Bush I) holdover.

But we know that Bush was placing many of his political appointees in civil service slots in the final weeks of his residency (I can't honestly call it a "presidency" at this point). So no, they're not "insulated" from the political winds except insofar as it's much harder to get rid of them now. They're still right-wing ideologues.

But how could this derision not have been noticed by the President’s men? First, and most obviously, I can only imagine that no lesbian or gay men ever set eyes on this brief. Perhaps I am wrong, but I honestly can’t see how any self-respecting homosexual in 2009 could possibly think this brief was acceptable.

That was my next question: you mean to tell me no one in the Justice Department is gay? No one? I wish I could be as comfortable with the idea that no gay person would pass something like this, but Link obviously has not read some of the "gay conservative" sites I have. Yeah, they could do it, and likely would.

A little compare and contrast: see Jim Burroway's post on California AG Jerry Brown's response to the complaint filed in Perry vs. Schwarzenegger, the case being pursued by Olson and Boies.

Digby, as usual, nails it:

Needless to say, after so many slights, snubs and various betrayals it's pretty hard to deny that the LGBT community is being used as a pawn in the president's "outreach" to social conservatives. It's a cruel dismissal of a strong and loyal constituency on an issue of fundamental civil rights.

Once again, boys and girls: Obama is a politician, first and always.