Yet again, the Department of Justice filed a brief (pdf) in a federal trial court that defends a law in place since the 1990s that imposes a restriction on lesbian, gay and bisexual people but has previously been upheld by federal courts. On Monday, it was a brief in defense of the “Don’t Ask, Don’t Tell” policy; this past year, it was a brief defending the Defense of Marriage Act. That this was done by the Obama administration is seen by some in the LGBT community as an abhorrent act.
Now, regardless of views on this court filing, the Obama administration could – and should – blunt the impact of the filing by announcing that it plans to insert DADT repeal language in the Defense Department budget request that it will be submitting to Congress in the coming weeks.
The administration likewise should stop, as Rep. Barney Frank told me last week, “ducking” on the issue of whether it remains committed to the repeal of DADT this year. Talking about a civil-rights issue on which the majority of people in the country agree with you is not a bad idea, either morally or politically.
Finally, the administration should take action immediately to fix the disaster that is its public relations with the LGBT community. Whether this is a problem caused by a few staffers or a larger problem of administration skittishness on LGBT issues, the lack of an open dialogue – whether on court filings or legislative action or otherwise – related to those issues has led to a leadership vacuum that LGBT people were expecting to be filled by this president.
Those supporting LGBT equality, however, do the cause no favor by overstating what has happened here or by overstating the options available to Obama in this situation.
The Justice Department’s defense of laws is not the same thing as the Obama administration’s policy preferences for future legislative enactments. The brief filed on Monday restates those preferences, noting that “the President of the United States has called for the repeal of DADT, the Secretary of Defense initiated a working group to study how to implement any such Congressional repeal, and Congress is now holding hearings to consider the policy question of whether to retain the current law.”
That policy preference notwithstanding, the law remains. And the role of the Justice Department is to defend the laws of the United States. The fact is that there are very few times when DOJ chooses not to defend laws. This is because, in our system of government, the decision of whether or not something becomes a law is made by congressional passage and presidential signature or veto. The decision of whether something that has been passed into law is constitutional is left to the courts.
Supporters of equality should want this system of laws. Changes in the executive should not result in changes as to which laws are going to be enforced. As has been seen recently in Virginia, changes in the executive branch can result in the new executive wanting to roll back equality protections. If the Employment Non-Discrimination Act becomes law during Obama’s presidency, would LGBT groups want a system in which the next president – pressured by religious extremists – refused to enforce the law and, in fact, opposed its constitutionality in court?
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There’s a reason why, generally speaking, we expect the Justice Department to defend challenges to laws, and it makes sense that the exceptions to that are few and far between. Marty Lederman, a Harvard Law School graduate who worked in the Office of Legal Counsel in the Clinton White House and is back there now, has described (in terms of the Justice Department under the first President Bush) those three rare situations when the Department has chosen not to defend the law.
My review of these exceptions – detailed here — leads me to the conclusion that neither DOMA nor DADT fit any of these exceptions to the Department of Justice’s usual obligation to defend existing laws, both having been in effect for more than a decade and challenged in court previously.
Regardless of whether you agree after reading my views, however, the important point to be gathered from all this is not even that the Justice Department must defend both “Don’t Ask, Don’t Tell” and the Defense of Marriage Act in court, but that the arguments to be made for the DOJ choosing not to do so are complex, debatable and certainly no slam dunk.
Once the Justice Department made the determination that it would be defending the “Don’t Ask, Don’t Tell” policy in court, the overwhelming majority of the brief filed on Monday is completely unsurprising. The brief – which I discuss in more detail here – extensively recited the existing law in the Ninth Circuit Court of Appeals, where the case was brought; it quoted from the law itself; and it examined statements made to and conclusions reached by Congress in its consideration of the policy in 1993. That, for the most part, was the entirety of the brief.
That, though, brings me to my final point, which is that – despite all the legal garble that has preceded this – there are lawyers on the other side of the case who are arguing everything that advocates of repeal wish to see argued. That is the basis of our adversarial system of law: Both sides of an argument will be presented to a judge, who will then make his or her judgment on the law.
Additionally, if others believe that the lawyers for LCR are missing something or are doing an insufficient job, they can file an amicus curiae – “friend of the court” – brief urging the court to take into account their viewpoint before issuing that judgment.
Even then, of course, that decision can be appealed.
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We are burdened, right now, with two laws – the Defense of Marriage Act and the “Don’t Ask, Don’t Tell” policy – that should be either repealed by Congress or overturned by the courts. On that point, most LGBT equality advocates agree.
Where the agreement has been lost – first with the DOMA brief this past year and now with the DADT brief filed on Monday – is on the proper role of the Justice Department in that process. I joined most people in criticizing some of the language and arguments raised by the Justice Department in its DOMA filing. Where I parted with many was on whether the Justice Department was right to defend the law at all.
This is a nuanced debate about the proper role of the Justice Department, and my opinions represent the best and most honest legal analysis I can give. It is an attempt to remain consistent in my view of the proper role of the Justice Department – regardless of whether subject to a Republican or Democratic administration and regardless of whether liberal or conservative views are in vogue.
That, also, I think, is the best path to take as LGBT equality advocates, this administration and our country move forward.
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