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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.
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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