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Even if one argues, as I often have, that a government lawyer — from the Department of Justice to state attorneys general — must defend even those laws with which one disagrees*, such a lawyer needn’t overstate his or her case. The government lawyer defending a statute with which she disagrees needn’t add gratuitous demeaning statements into the legal brief she files.
Unlike the Obama Administration’s brief filed in the Don’t Ask, Don’t Tell case turned away by the Supreme Court this week, last night’s filing in Smelt v. United States goes too far (pdf). It’s offensive, it’s dismissive, it’s demeaning and — most importantly — it’s unnecessary. Even if one accepts that DOJ should have filed a brief opposing this case (and the facts do suggest some legitimate questions about standing), the gratuitous language used throughout the filing goes much further than was necessary to make its case.
John Aravosis at AmericaBlog is all over this, but I just wanted to note one example of the overreaching nature of this filing:
Section 3 of DOMA merely clarifies that federal policy is to make certain benefits available only to those persons united in heterosexual marriage, as opposed to any other possible relationship defined by law, family, or affection. As a result, gay and lesbian individuals who unite in matrimony are denied no federal benefits to which they were entitled prior to their marriage; they remain eligible for every benefit they enjoyed beforehand. DOMA simply provides, in effect, that as a result of their same-sex marriage they will not become eligible for the set of benefits that Congress has reserved exclusively to those who are related by the bonds of heterosexual marriage.
Motion to Dismiss, at pp. 27-28.
Also, thanks to the genius who decided to spend almost two whole pages breathing new life into the brief 1972 opinion by the Court dismissing the Baker v. Nelson marriage case from Minnesota “for want of a substantial federal question.” 409 U.S. 810 (1972). Motion, at pp. 28-30.
Perhaps the simplest way to express my anger at this filing is to reprint what is easily the most disingenuous line of the brief, at p. 32:
DOMA does not discriminate against homosexuals in the provision of federal benefits.
There you go.
(Needless to say, I’m not wearing my Obama T-shirt today.)
Oh, yeah, before I forget, I’d like to note for those readers concerned about Obama’s position on choice issues that the Obama Justice Department cited approvingly on page 28 to two gems of cases: Rust v. Sullivan, 500 U.S. 173, 201, 111 S. Ct. 1759, 114 L.Ed.2d 233 (1991); Webster v. Reproductive Health Servs., 492 U.S. 490, 507, 109 S. Ct. 3040, 106 L.Ed.2d 410 (1989).
* * * * *
Other takes (updated as it happens!):
- GLAD, HRC, NGLTF, Lambda, ACLU, NCLR: LGBT Legal, Advocacy Groups Decry Obama Admin Defense of DOMA
- Pam’s House Blend: The Obama admin defends DOMA in a brief comparing marriage equality to incest
- Joe Mirabella @ Join the Impact: Obama defends DOMA, we defend our families
- The New Civil Rights Movement: DOJ: “What’s Past Is Prologue.” Indeed.
- Andrew Sullivan: Insult to Injury
- Dale Carpenter: Fierce advocacy
- Richard Socarides: The Choice to Defend DOMA, and Its Consequences
* = As John Aravosis has pointed out, there are situations in which the Justice Department has refused to defend laws that it believes are unconstitutional. Obviously, that is fact. The reality is that those situations are very rare, and only happen when Justice comes to a determination that there is no rational argument to be made in favor of the law’s constitutionality. Mere disagreement, even belief that a law could be determined to be unconstitutional, is not a legitimate basis for a government lawyer to refuse to defend a law. [Robert Raben, an openly gay former Clinton Justice Department lawyer, makes the same point here in The Washington Blade.]
[UPDATE: Tony West, the Assistant Attorney General for the Civil Division, is the senior person on the brief. He's from Oakland, California, and is a former prosecutor who then, while an attorney at Morrison & Foerster, defended John Walker Lindh, the "American Taliban." He also was the co-chairman of Obama's fundraising committee. This is an Obama person. And his name is on this brief.
Andrew Sullivan points out that one of the people on the brief, the man who signed it, is "W. Scott Simpson, a Bush administration holdover, and devout Mormon." He also notes that Simpson "was given an award by Alberto Gonzales for his defense of the Partial Birth Abortion Act."
The final DOJ name on the brief, James J. Gilligan, at least goes back to the Ashcroft DOJ, per this filing in 2003.]
[FURTHER UPDATE: Read my follow-up post about a speech that Obama's openly gay director of the Office of Personnel Management, John Berry, made on Thursday.]
[STILL FURTHER UPDATE: On Monday, I ask, "What now?" and answer that "We need a plan of action from the White House." Former DNC chair Howard Dean called the filing a "huge mistake," and The New York Times says that Obama needs to go in a "new direction" to advance LGBT equality.]
** = [John Aravosis is mad at me because I had the gall to disagree with him on something, so he deleted this linked post and edited out a reference to my post on another of his posts. -Ed.]
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Chris Geidner is the award-winning senior political editor at D.C.'s Metro Weekly and has written for The Atlantic Online, The American Prospect, Advocate.com, Salon and other publications, as well as at his blog, Law Dork. In 2011, he received the Excellence in News Writing Award from the National Lesbian and Gay Journalists Association for his coverage of "Don't Ask, Don't Tell" repeal. Prior to moving to D.C. in 2009, he served as an attorney on the senior staff at the Ohio Attorney General's Office and had earlier worked for a leading Columbus law firm. An extended biography can be found
“Needless to say, I’m not wearing my Obama T-shirt today.”
Hell – I’m about ready to cut my Obama t-shirts up and send them to the White House.
Every new day brings with it another reason to feel worthless.
Well, now I know what it feels like to be thrown under a bus.
What struck me most was that the defendant U.S. removed the case to federal court, then argued that the federal court didn’t have subject-matter jurisdiction. Is this a common move? Seems dodgy.
There’s an error in including Baker v. Vermont (1999) as a case “upholding the traditional definition of marriage,” since of course Baker required the legislature to provide marital benefits to same-sex couples.
Aravois’s freakout over the citations to first-cousin marriages being legal in one state but not another, or 16-year-olds’ marriages being legal in one state but not another, as being a comparison of SSM to “incest and child rape,” strikes me as an effort to be outraged. If there are states that OK cousin and 16-year-old marriages, then clearly such marriages aren’t universally abhorrent.
But hey, since SSM is clearly SUPERIOR to cousin-marriage (as opposed to, say, roughly equal to it?), let Aravois bash away — great way to build alliances on the issue of government over-restriction on marriage. Somehow I doubt that Aravois was so troubled by such a comparison when it was made in Baker v. Vermont in order to dismiss the argument that if one state allowed one type of marriage, it would have to affect all the other states (VT being one of those states allowing those heinous incestuous first-cousin marriages).
There’s something funny about this.
Obama’s a constitutional scholar, yet this filing brings up, essentially, all the bogus arguments that are ridiculous, or (in the case of tax benefits) just plain wrong.
Refuting these arguments correctly makes the case a slam dunk, IMO.
So Obama’s sacrificing any chance of getting LGBTQ & allied support in 2012 for a jujitsu chance of getting marriage equality?
That’s either really brave and self-sacrificing or really stupid.
Oh, and for those of you who want to use http://www.whitehouse.gov/contact/ to send a message telling the President how you really feel, you can totally riff off of this:
Dear Mr. President,
I was dismayed when I found out that the Department of Justice had filed a motion to dismiss Smelt and Hammer’s suit contesting the constitutionality of the Defense of Marriage Act. During your campaign, you pledged to work to overturn this Act. However, this dismay is overshadowed by the shocking and appalling content of the motion.
The motion in question compares same-sex marriage to incest and polygamy. It also claims that persons who are deeply in love with a person of their own sex should marry persons they do not love of the opposite sex merely to obtain the benefits of marriage.
Your presidency has been compared to that of John F. Kennedy. Like Kennedy, you have promised much to a historically disadvantaged group of American citizens. However, I hope that unlike Kennedy, you actually manage to effect real change during your administration.
I ask you to instruct the Justice Department to withdraw this insulting motion. Until then, Mr. President, you have lost my support.
I remain,
Your fellow citizen,
[name here]
Doesn’t the DoJ have an ethical responsibility to make as strong of arguments as they can to support the constitutionality of a law? Otherwise, they’re not properly representing the interests of their clients.
Thank you, however, for pointing out that the argument that “they could have refused to defend the law” isn’t really applicable here.
Maureen, not to be rude, but did you read the whole motion or just assume that John Aravois’s take must be wholly accurate?
“The motion in question compares same-sex marriage to incest and polygamy.”
Again, never uses the word incest, just refers to cases about FIRST COUSINS. Legal in Vermont, New York, California and many other states. Same comparison that was made in Baker v. Vermont as an argument IN FAVOR of civil unions, and the case that made Vermont the first state to grant explicitly marital rights to same-sex couples (Hawaii having gotten rapidly shot down on that). Not what comes to mind for most people when you say “incest.” Increases risk of birth defects by only 2%. I really don’t think it’s a good strategy to look at first-cousin marriage and say, “OMG, how disgusting, don’t you dare compare my same-sex marriage to THAT.”
Where was the comparison to polygamy? I don’t recall seeing that.
“It also claims that persons who are deeply in love with a person of their own sex should marry persons they do not love of the opposite sex merely to obtain the benefits of marriage.”
Again, where was this? There’s nothing in the brief that tells people what they *should* do. Indeed, the brief notes that Congress may well decide to extend benefits to same-sex married couples. (Which would then make it pretty dumb to have gotten an “opposite marriage” for the benefits.) The very first page of the actual brief says, “same-sex couples in these States have won what they understandably view as a vital personal right of surpassing importance to their happiness and well-being.”
Also, it’s kind of weird to be snotty about first-cousin marriage and then say that people shouldn’t have to marry people they don’t love in order to obtain marriage benefits.
I wish that the Obama Administration were not tasked with defending DOMA, but at this point, they are. I really hope he and the Democratic Congressional leadership get a freaking move on and repeal DOMA as he promised they would do. But I don’t see the good of finding offense where I not only doubt that any was intended, but wonder at the apparent willingness to offend potential allies.
I wonder if the main author of the brief was one of the Liberty University incompetents who were given dozens of civil service jobs in the DOJ during the Bush41 administration. I’m sure that those incompetent gits are still stinking up the place.
Unwonted Pseudonym, I think you miss my point. I am not criticizing the arguments so much as the tone. One can advocate vigorously without being dismissive and without demeaning others.
I’m not making John Aravosis’s argument, and I am not accusing the White House of “lying” in its statement about defending the law. I am stating, simply, that the Administration could have used more respectful words and could have more respectfully argued its case.
The Liberals are already making excuses for him. Saying he had no choice.
I’m glad that I–normally a liberal Democrat–had enough wisdom not to vote for this evil man.
See the posts on Baytzim.com about the Obama-DOMA issue.
It actually was written by a Bush holdover, and a Mormon one at that. I am not pleased with Obama’s record on gay issues so far, very displeased, in fact, but I actually doubt that he ever saw this brief or would have been on board with its tone or language. Eric Holder is another matter. He’s a jerk.
Well i never bought any so I am covered, but i will still send a box of post-wood chipper Obama paraphernalia to the white house, or maybe to the Czar of various Obama collectibles, they just announced him last week, he is the one behind the Obama presidential sneakers.
Reuven,
If you think Unwanted Pseudonym is a Democrat, you are laughably mistaken.
Lol!
I can’t believe people are surprised by this.
I called Obama a anti-queer/trans bigot early on, and was quite literally almost killed.
Have you people asleep since the primaries? You should have expected this at least since last December.
Ok. Obama said he is against gay marriage, and now his DOJ writes a brief supporting DOMA, constitutionally-speaking.
People are surprised, why?
I am against DOMA, but cannot see how it is not Constitutional. It would be perverse for the DOJ to not defend laws based merely on policy preference. That being said, one’s “mean spirited” is anothers’ dishpan in a kitchen sink style brief.
Lastly, can someone point to the citation that compares gay marriage to polygamy and incest? Neither word shows up in the text.
How are you surprised by this? If you paid any, ANY attention during the election you would have seen this guy was a spineless political toady who would say anything to anyone to get elected.
You would have also seen the ease with which he gleefully tossed supporters and allies under the bus when it suited him. Yet, in DROVES, you chanted his name and voted for him.
Maybe this is a wake up call.
I will admit that the string cite is not quite headline John’s making it, but it is one more example of the brief’s almost mocking tone.
John Aravosis’ effort to be outraged is almost always on display lately. This one does his cause no favors. It’s doesn’t even reach Sarah Palin level of sense. He needs to pull it in or come up with some ideas about how to respond logically to this filing.
It’s not just that it’s not quite the headline he’s making of it (and disseminating to others to make of it); it’s that unless you were offended by the citations to those cases in Baker v. Vermont, when “states are laboratories of experimentation” was an argument in favor of gay rights, there’s nothing “mocking” about it. That’s what’s annoying me about getting upset by references to the fact that we have long had disparities in state laws on marriage. It’s a neutral kind of fact. It can help gay rights when the VT Supreme Court wants to say that VT’s having a different law than any other state won’t cause a problem; it hurts gay rights when federalism is abandoned in favor of nationalization of policy. But it’s not inherently offensive to say, “There’s longstanding precedent that the states can have different marriage laws and do not have to regard as a marriage a relationship contracted in a state with different marriage laws.” What is mocking about that?
If you find it offensive, then you do; I’m not in your position and your feelings are your feelings, I can’t argue you out of them. But I think getting offended by an argument that you would have welcomed when it was made in another case might cause you to examine whether you were primed to be upset by anything said in this brief beyond that sentence on the first page: “same-sex couples in these States have won what they understandably view as a vital personal right of surpassing importance to their happiness and well-being.”
This is my only thought, the only thing keeping me from burning my Obama poster: is this a ploy? He couldn’t have ****ed us worse on this brief, and therefore there is no way he could have thought he could get it by us. He knew we would see this and freak out.
Can someone think of any good ploy, some poker move or chess strategm that is actually designed to be a help to us and not a betrayal like I read it to be? Sigh.
What’s wrong about the tax benefits argument?
I was with you until the end when you write: “I don’t see the good of finding offense where I not only doubt that any was intended, but wonder at the apparent willingness to offend potential allies.”
I think there are several portions of the brief that go too far in defending the law and raise issues that needn’t be raised. Other than John Aravosis’s obsession with the incest case cites, his stuff on this case has been excellent and has detailed those areas quite well.
The outrage is a bit strange. If one pulls back and looks at it dispassionately, this looks like the type of brief a good advocate would write if said advocate actually wanted to win their motion. It’s not offensive to cite precedent that–even if it gets under the political skin of one’s allies–is nevertheless helpful to the motion before the Court.
The outrage is even stranger when one considers the likely outcome of the case. Striking down DOMA on constitutional grounds is unlikely in any event: any brief submitted is likely to win. But suppose Obama wants to lose. He has two choices: write a lukewarm motion, ditch the case, and hand every right-wing commentator a talking point on how critical the federal marriage amendment is, because now not only the Court but the Administration is lawless. The decision seems illegitimate (to those outside your particular cheering section), because the game was rigged.
Or he can realize that the brief probably has little to do with it–a Court that wants to strike this down will do so–and go to the wall in support, writing a kitchen-sink brief that raises every reasonable argument, as a good advocate should. Then, if he loses (in which case, one supposes he wins), he can look at DOMA supporters and say, “Hey, you can’t blame me. I did everything I should have, as I was supposed to, in order to make the system work.” Which, come to think of it, is pretty much the job he’s supposed to be doing.
I grant you that a “respectful” brief would make life easier politically. But the result would be a weaker brief. And if the Court struck down DOMA, proponents would (rightfully) argue that the decision lacked legitimacy because the pro-DOMA side was not vigorously advocated.
The arguments aren’t “offensive.” You just disagree with them. Fair enough. But if I were writing the opposition brief, I would want that motion to dismiss to be the best possible one. And if I were running the DOJ, I would assign it to the true believer on my team, if such believer were talented. Because justice is best serve when all the best arguments are out there.
I just disagree with you that a “respectful” brief is necessarily a “weaker brief.” There are areas in the brief that are offensive, as well as dismissive and demeaning. The legal argument requires none of that, making those, as I stated, unnecessary.
Again, if this is true, you haven’t pointed them out.
Further–any more “respectful” brief would be seen as weaker, and less legitimate, by your opponents. This is what makes the gnashing of teeth among the liberal blogosphere incomprehensible. The brief sets up a number of arguments that the ruling Court can decline to adopt even if it upholds DOMA. And if the Court strikes down DOMA, it blunts arguments that the executive cheated by not putting its best foot forward. And if the brief succeeds, and the Court adopts its language, it’s a great advocacy piece for legislative change: imagine Congresswoman X standing on the floor saying, “The Court has said that the intent of Congress in passing DOMA was merely to [whatever]. Is that what we meant?”
Were I opposing it, this is the brief I’d want to oppose. The legal arguments aren’t bad, and it fairly raises arguments I would want to oppose. Tactically, it’s a good move for the government assuming it opposes DOMA. The hypersensitivity thus boggles the mind.
Too bad you failed to pay attention last year, you f*cking dolt. The worst part of your idiocy and that of those like you is that you lost powerful feminist supporters last year.
I believe in gay marriage and gay rights, but I will no longer lift a finger to help the gay community until I begin to see apologies for the misogyny coming from gay men last year, and some actual critical thinking that suggests you are paying attention to more than the bulge in the pants of the man you’re hot for. Sarah Palin would have protected you more than Obama ever will. That kind of delicious irony is not lost on me.
I doubt Obama saw it, but Tony West, Obama’s fund-raising co-chairman and now AAG for the Civil Division, is on the brief. So, at the least, someone close to Obama who is now in a prominent position at DOJ saw it.
“I believe in gay marriage and gay rights, but I will no longer lift a finger to help the gay community… Sarah Palin would have protected you more than Obama ever will.”
That’s clearly a commitment to beliefs there. No, really. To delusions, in fact.
“I believe in gay marriage and gay rights, but I will no longer lift a finger to help the gay community until I begin to see … some actual critical thinking that suggests you are paying attention to more than the bulge in the pants of the man you’re hot for.
Wow.
Let’s try that with appropriate substitutions:
1. “I believe in minority rights, but until I see that they’re able to pay attention to more than crack and chicken wings….”
2. “I believe in combatting anti-semitism, but until I see they’re able to pay attention to more than hoarding money….”
3. “I believe in women’s rights, but until I see that they’re able to pay attention to something more than their hemlines and hair color….”
…nope. I can’t find a way to analogize it that doesn’t make you look like a douche-bag.
I’m sorry you perceived misogyny among gay men “last year.” I guess that explains why you won’t “lift a finger to help” lesbians, either.
You don’t bother to explain what the context of the misogyny was. If you’re referring to the election, well, virtually every prominent gay guy, and every single gay guy I know, was a Hilary supporter. There was certainly tons of misogyny to go around then, but from what I could see, the worst of it came from conservative women. Maybe you should boycott feminist causes in response?