On Wednesday, Feb. 23, I appeared in the lead segment on Capital Insider, the 8 p.m. show on TBD TV, Channel 8, in the District. I was far from perfect, but it was a great experience and host Morris Jones was gentle on me. If the video does not appear below, try here.

Judge Walker

Here’s the preview I wrote at Metro Weekly for today’s closing arguments:

More than five months ago, the trial questioning the constitutionality of California’s Proposition 8 – prohibiting same-sex marriages in the state – began in U.S. District Court. Tomorrow, June 16, the trial of Perry v. Schwarzenegger will come to an end. That end, however, could also be the beginning of the much larger case for equality in marriage across the country.

I’ll be live-blogging here with thoughts and interesting notes about the argument as it happens, but also be sure to follow my list on Twitter of people in the courtroom and tweeting the closing arguments live.

Interesting question and answer:

JUDGE WALKER: Are you focusing on the facts pertaining to the California initiative or facts pertinent generally and throughout the country with respect to marriage?
MR. OLSON: Both of those.

Punt.

More from Olson:

I think it’s really important to set forth the prism through which this case must be viewed by the judiciary. And that is the perspective on marriage, the same subject that we are talking about, by the United States Supreme Court.

The Supreme Court — the freedom to marry, the freedom to make the choice to marry — the Supreme Court has said in, I counted, 14 cases going back to 1888, 122 years. And these are the words of all of those Supreme Court decisions about what marriage is. And I have set forth this distinction between what the plaintiffs have called it and what the Supreme Court has called it.

Tough words. This logic would apply across the United States, regardless of the type of marriage ban, whether it be statute or constitutional amendment (or just a lack of marriage equality without any affirmative prohibition, like in New York).

The judge brings up Baker v. Nelson:

JUDGE WALKER: Well, now, the Supreme Court in the Baker versus Nelson case decided that the issue which we are [concerned] with here was not ripe for the Supreme Court to weigh in on. That was 1972. What’s happened in the 38 years since 1972?

Interesting softball. Olson, of course, responded that much had changed — noting, most specifically, Romer v. Evans and Lawrence v. Texas.

Walker notes that, unlike in Lawrence, we are not dealing with a criminal statute here. Olson’s response is excellent:

And then the court goes on to say, persons in home sexual relationship may seek autonomy for these purposes just as heterosexual persons do. The court was talking about the private intimate behavior. If the court had said instead you can go to jail for five days because we caught you doing those things, we will take away your right to drive on the highways, we will take away your right to marry because you do those things or you engage in that conduct, it seems to me that that is just as unconstitutional especially if the thing which is taken away is also a fundamental constitutional right.

Good stuff.

Hard talk from Ted Olson:

It’s a traditional definition of marriage, which is something that we have always done it that way is the same — is a corollary to the because I say so. It’s not a reason. You can’t have continued discrimination in public schools because you have always done it that way. You can’t have continued discrimination between races on the basis of marriage because you have always done it that way.

That line of reasoning would have prevented the Loving marriage. It would have justified racially segregated schools.

Wow. Olson goes on:

Well, we know that taking away the right to marry was indeed the very essence of slavery. Yet that very freedom, once denied to slaves and denied to interracial couples throughout this country is now being denied to the plaintiffs not because they are Chinese, not because of their race, but because of their sexual orientation. How can it be wrong in those areas and right in this area under the Equal Protection Clause? That does not square with any of the language that the Supreme Court has used in deciding equal protection cases. And that has been used, that same language has been used to strike down classes among citizens. That’s the language of Romer. That principle has been extended from race to nationality to ancestry to sex to legitimacy to the favoring of the husband in matters of marital property and in 1996 in the Romer case to sexual orientation.

That, my friends, is a closing.

Therese Stewart from San Francisco is up next, talking about the specific harm the city and county suffer because of Proposition 8. Why do people go to San Fran to marry?

MS. STEWART: Because it’s long been the City of love the city where people leave their hearts. It’s a fact of our culture.

JUDGE WALKER: The City of love.

Yup.

Charles Cooper is closing for the Prop 8 proponents:

It’s because this relationship is crucial to the public interest. It’s crucial to the public interest because, Your Honor, the procreative sexual relations . . . benefit to society and [the plaintiff's argument] represents a very real threat to society’s interests.

JUDGE WALKER: A threat?

MR. COOPER: Yes, Your Honor. A threat in the sense that, to whatever extent children are born into the world without this stable, enduring marital union, raised and responsibility taken for the offspring by both of the parents that brought them into the world, then a host of very important and very negative social implications arise and potential social consequences arise.

Interesting.

Cooper’s closing is weak.

JUDGE WALKER: Don’t we have to have evidence?

MR. COOPER: You don’t have to have evidence of this point, if one court after another has recognized — let me turn to the California cases on this. The first purpose of matrimony any by the laws of nature and society is procreation. The California Supreme Court said that . . . . A century later the California Supreme Court reemphasized that. ” The institution of marriage serves the public interest because it channels biological drives — channels biological drives that might otherwise become socially destructive and it ensures the care and education of children in a stable environment.” That’s the California Supreme Court, Your Honor. That’s the purpose of marriage in this state according to the California Supreme Court.

And? The judge concurred with my thoughts here:

JUDGE WALKER: Let me ask, if you have got 7 million Californians who took this position, 70 judges as you pointed out, and this long history that you have described, why in this case did you present but one witness on this subject, one witness? It seems you had a lot to choose from if you had that many people behind you. Why only one witness? And I think it fair to say that his testimony was equivocal in some respects.

Ouch. Then, Cooper responded:

You need only go back to your chambers, Your Honor, and pull down any dictionary, pull down any book that discusses marriage, and you will find this procreative purpose at its heart wherever you go unless, unless, Your Honor, that book was written by one of their experts or has been written over the course of the last 30 years.

The “30 years” point somewhat tore apart his case, as Cooper admitted that things have changed in the past 30 years.

JUDGE WALKER: If it is taking place throughout the country and throughout the world in this fashion, then doesn’t that indicate a changed perspective with respect to the role and function of marriage in society?

MR. COOPER: In the minds of many, yes, Your Honor. In the minds of many.

Yeah, I’m not sure how you jump out of that hole. To say that Walker’s questions of Cooper are more probing and less sympathetic is to understate them. This:

JUDGE WALKER: Let me ask you. You heard Mr. Olson this morning recount the experience of, and the background of the loving decision by the Supreme Court in 1964, I think, 67. And up to that time numerous states had laws on the books which prohibited interracial marriage. At some point there came exactly the same kind of social change that you have just described with respect to homosexuality. And at some point, 1967, that matured into a constitutional recognition of a constitutional right, that the limitation against interracial marriage violated a fundamental individual right under our communication. Why are we not at that same at this point . . . here with respect to same-sex marriage?

Well then.

After — in his discussion of the standard of review — positing that gays are not politically powerless and asserting that homosexuality is not immutable, Cooper did acknowledge that gays do have a history of discrimination.

JUDGE WALKER: This Proposition 8 and these other positions in other states that limit marriage to opposite-sex couples, the DOMA statute that has been mentioned, the exclusion of gays and lesbians from military service for a long period of time, aren’t all those simply indicia of a long history of discrimination?

MR. COOPER: No, we would — I want to are clear on this. We have never disputed and we have offered to stipulate that gays and lesbians have been the victims of a long and shameful history of discrimination. We have been bound to note that thankfully the situation today in 2010 is not what it was even yesterday let alone in 1990 when high tech gays was decided, thankfully.

Um, this is just a roundabout, sneaky way of claiming that gays aren’t politically powerless any longer.

Walker gets into what rational basis is even claimed:

JUDGE WALKER: A disability, a classification, has been put on marriage which disables people who wish to marry others of the same sex. In order to disable certain citizens do you not have to show a core relative benefit to others or to society? And the “I don’t know” or you don’t know where this is going to lead answer, is that enough to impose upon some citizens a restriction that others do not suffer from?

MR. COOPER: It is if there is a rational basis for that distinction, yes. I really think that really ends up being the bottom line on it. If there is no — if there is — if in looking at the, whatever society’s purposes are for marriage and interests are for regulating and caring about marriage, if there is no basis on which to draw a distinction between one group and another, then the distinction can’t stand. But if there is a distinguishing characteristic that is relevant to one of those purposes, then the distinction can stand.

Not so sure there.

Now, the plaintiffs will have a 30-minute rebuttal time. Olson crushes from the start:

[Y]ou can’t come in here and say I don’t know and I don’t have to prove anything and I don’t need any evidence except for some people writing in books who won’t come into court and subject themselves to the judicial process.

. . . .

Mr. Cooper says you have to accept the fact that first of all you have to accept my definition it has to be between a man and a woman. Then if you have oh marriage between a man and a man or a woman or a woman it will change the marriage. Well, of course it will, because you started by defining the term that you wanted to define.

Blunt. Echoing an earlier editorial about the Vermont marriage case in The New Republic that I’ve always loved, Olson said: “Proposition 8 isn’t changing the institution of marriage. It is correcting a restriction based upon sex and sexual orientation.”He then addressed the issue of why this is coming up now:

It’s no longer against the law to work for the federal government. It’s no longer against the law in most places to walk into a bar if you are a homosexual. The break down thank God of some of these barriers has changed people’s attitudes and I am sure that contributes to people saying, “Now, well, if that’s the case and psychiatrists have changed their view about homosexuality.” People no longer think it’s a disorder or anything like that. They have explained and people have come to understand the differences between various members of society and we have found out that all of those horrible taboos are not justified. In fact — and there are stories, some of which were in the ads that were supporting Proposition 8, are no longer true. So of course people are thinking well, if these are our fellow citizens and they don’t present a risk to us, they are not damaging they are just like us, why shouldn’t we start talking about marriage?

Nicely put. Olson ended:

[Y]ou have to have a reason [for Prop 8] and you have to have a reason that’s real not post hoc justification not speculation not built on stereotypes and not hypothetical.

That’s what the Supreme Court decisions tell us. We don’t have that here. We have a decision that takes — and there isn’t any question. A group of people who have been victims of discrimination, who are a discreet minority, who have identifiable characteristics, their sexual orientation. And we want to foreclose them from participating in the most fundamental relationship in life.

. . . .

The Romer case that says you can’t take away rights and make them unconstitutional impossible to recover except by amending your state constitution. And the Lawrence case that says that the sexual orientation of individuals and their private conduct is a protected right. You cannot then in the face of all those decisions by the United States Supreme
Court say to these individuals, “We are going to take away the constitutional right to liberty privacy association and sexual intimacy that we tell you that you have and then we will now use that as a basis for not allowing you the freedom to marry.” That is not acceptable. It’s not acceptable under our Constitution. And Mr. Blankenhorn is absolutely right the day that we end that we will be more American.”

With that, as Judge Walker concluded, “ The matter is submitted.”

Thank you, Mr. President. My question is about the “Don’t Ask, Don’t Tell” repeal compromise amendment that faces House and Senate votes as early as this afternoon. Adm. Mullen said yesterday of the conditions in the amendment, “That trigger is to certify whether we should move ahead with that change.”

Earlier, and repeatedly, however, Sec. Gates said of the study, “This is not a question of if, but how.”

Which is it, Mr. President, and is your understanding of the compromise that the certification is discretionary? And, if so, why is that discretion necessary if the study truly is only looking into how to implement repeal?

But, I did not get to ask my question, so, it remains unanswered.

Here is the background, from my two reports at Metro Weekly on Wednesday: “Discretion Required,” about the impact of the amendment, and “Digging Into the Details,” which looks at the Senate vote count and features my interviews with Reps. Murphy and Frank on the House side.

About 9:30 p.m. Monday night, two people stand looking at the White House from the sidewalk on Pennsylvania Avenue.

Yes, I have been a bad Law Dork.

But, I’ve been writing plenty, at Metro Weekly, where I had been freelancing, then was working part-time, and — finally — earlier this year started working full-time.

On Monday, for example, I began with “DADT Talks at White House and on Hill,” covering the meetings regarding a possible “Don’t Ask, Don’t Tell” policy repeal compromise. Then, I followed up with the brief “Pushing Forward on DADT Repeal Compromise,” addressing a letter sent to the White House from the leading trio of pro-repeal lawmakers. Finally, I ended the day with “White House Signals Support,” which covered the Administration’s endorsement of the repeal compromise and several LGBT groups’ reactions to that support.

Unfortunately, days like that have left me with little time to devote to Law Dork.

I do, however, ask that you continue to check out my work, which is published nearly daily (if not multiple times a day, sch as Monday) at MetroWeekly.com and, if you live in the D.C. area, each Thursday in print. Also, if you’re not following me on Twitter and you want to keep up with me, you should be following me. Finally, I will update here as I find reasons (and time!) to do so, which is primarily when non-LGBT topics or Ohio-centric issues come to the fore.

If you have any other ideas of how I can use this space — I’m thinking about a weekly photo journal update, perhaps — please leave the idea in the comments section.

Thanks to everyone who has been so truly supportive of me as I spent the past 15 months feeling my way out and about back in the blogosphere, then on Twitter and, eventually, to D.C. It’s been — and will doubtless continue to be — quite a ride, so please do keep up!

Truly, few emails have made me more happy than this one, letting me know that I have a seat in the U.S. Supreme Court’s press section “for the oral argument on Monday, April 19 at 10 a.m. and Wednesday, April 28 at 10 a.m.”

The building that houses the Supreme Court of the United States, located at One First Street, N.E., in Washington, D.C.

The cases are Christian Legal Society v. Martinez and Doe #1 v. Reed. This, to me, is about as exciting an opportunity as I could have imagined when moving back to D.C. nearly six months ago. In that time, I’ve had the opportunity to write for The Atlantic Politics Channel and Metro Weekly, which has led to a job at MW as the senior political writer. In that role, I’ve covered Congress, the White House, the Pentagon and, now, will be covering the Supreme Court.

The first argument has particular meaning for me, as this debate, about whether a student organization that refuses to abide by a school’s nondiscrimination policy — here, CLS — can be denied university funds, is one in which I was heavily engaged during my time as a law student at OSU. The question in the case comes down to whether personal religious views can be imposed on a public institution and trump generally applicable public funding decisions, a question the court has answered in the negative on repeated occasions.

The case raises a lot of interesting questions, depending on the angle from which you come at the case — CLS and its lawyers argue that this is a religious freedom and associational freedom case. I’m going to be reading the many amicus briefs submitted in the case over the coming days, so I’ll have more on the specifics of all that soon. What already is clear, though, is that it will be intriguing to watch how the justices address the case.

The second argument, I think, has a growing meaning in the evolving dialogue on LGBT equality — or at least the opposition to it. As with the CLS case, those opposed to LGBT equality are increasingly painting themselves as themselves being the group that is subject to animus. They, not the LGBT people, are the “victim” in this framing. The Washington case involves the disclosure of the names and identifying information of those people who signed the petition to overturn Washington state’s domestic partnership law that became Referendum 71.

The case asks whether the Court will hold that disclosure requirements — can the public see who signed a petition to put a referendum on the ballot? — should be curtailed because of fear that those who signed such a petition will be subject to retaliation or other intimidation. The broad issue — the intimidation question — already has arisen twice in recent months at the Court, when the Court rejected the attempt to allow a live-streaming of the Proposition 8 trial to other courtrooms and in Justice Thomas’s opinion in Citizens United.

Incidentally, that second argument will fall, to the day, six months after my first D.C. coverage, the signing of the hate crimes law a couples days after I moved back.

Of personal interest and excitement to me, these two arguments, looking at the intersection of LGBT equality and various First Amendment freedoms, fall into that same general area of the law as the first Supreme Court oral argument that I attended, Boy Scouts of America v. Dale, argued 10 years ago this month, on April 26, 2000.

Yes, this Law Dork is incredibly excited and proud to be covering the Supreme Court for Metro Weekly.

Johnsen

Today was a day for celebrating the service of Justice John Paul Stevens.

Today was a day for considering the impact of Stevens’ work on American law.

Today was a day for contemplating who could enter the Court in the fall and take his vote, if not his place.

Today was not a day for questioning whether the President would have the wherewithal to make his constitutional vision a part of America.

And yet, with the end-of-the-day announcement that Dawn Johnsen, the president’s nominee to head the Department of Justice’s Office of Legal Counsel, was withdrawing her name from consideration because of Senate inaction, that question — among legal thinkers on the left and the right — has been pushed into our focus as this week draws to a close.

Do not misinterpret my concern. I have argued — and still believe — that a convincing case could be made that a recess appointment is inappropriate for the head of the Office of Legal Counsel, particularly when, as Johnsen noted in her statement today, a goal that she brought with her to the nomination was the depoliticization of the OLC.

My specific concern is not only that she has withdrawn, although that fact upsets me greatly. The very serious concern I am discussing here is an admittedly more political one — that the White House allowed this to happen today.

Dawn Johnsen’s principled stand against executive overreaching was what led presidential power critics like Glenn Greenwald to be thrilled with her nomination.

There is no such thing as take-out-the-trash day for legal-political blogger-critics. The OLC job is out of the way enough that John Yoo is still teaching and Jay Bybee was able to leave the executive and enter the judiciary without incident, despite the questionable — if not actionable — activities in which they engaged while working there. Among those people for whom this position matters, though, there was no real benefit to be gained by making this move today.

There are, however, two important and related but distinct disadvantages.

For the administration, on this day, to allow for the Johnsen news to disempower liberal legal thinkers and advocates is an incalculably short-sighted political misstep. It is right at this very moment when the administration needs these people most. To allow for Johnsen’s nomination to come to an end today can only be offset with the news of a Supreme Court nominee likely to gain as much praise on the legal left as did Johnsen. (The only sure bets there would be Pam Karlan or Goodwin Liu, in my view.)

What’s more, this has empowered the very people on the legal right who the administration has the least interest in seeing empowered today. There is nothing to be gained by having the opponents of Dawn Johnsen’s nomination coming down off the ego and power of victory right as they are gearing up to come at Obama’s nominee — regardless of who it is — with all their might.

As everyone at this point is well aware, I have significantly more trust in the Obama administration’s legal strategies and political tactics thus far than have many others. I have criticisms, but I also believe that much of their work has been done with a keen eye both to the legal and political realities of the system in which they find themselves.

This afternoon’s announcement about Dawn Johnsen, however, gives me pause just as the administration is asking liberals — and the nation — to trust Obama’s judgment the most, as he selects his second lifetime-tenured nominee for the high court.

Associate Justice John Paul Stevens sits for a new group photograph, Tuesday, Sept. 29, 2009, at the Supreme Court in Washington. (Photo from AP/Charles Dharapak.)

One of the ten-ton elephants or bombshells or other colorful journalistic euphemisms awaiting us in the SCOTUS vacancy weeks ahead following the announcement today that Justice John Paul Stevens will retire is Citizens United v. Federal Election Commission.

Judging by his words today, the unpopular decision may be a key part of President Obama’s summer political strategy.

Earlier this spring, when Justice Stevens took significant time to read from his blistering dissent in Citizens United, speculation ensued about whether Stevens was reaching the end of his time on the high court. In part, he wrote:

The Court’s ruling threatens to undermine the integrity of elected institutions across the Nation. The path it has taken to reach its outcome will, I fear, do damage to this institution.

. . . .

In a democratic society, the longstanding consensus on the need to limit corporate campaign spending should outweigh the wooden application of judge-made rules. The majority’s rejection of this principle “elevate[s] corporations to a level of deference which has not been seen at least since the days when substantive due process was regularly used to invalidate regulatory legislation thought to unfairly impinge upon established economic interests.” Bellotti , 435 U. S., at 817, n. 13 (White, J., dissenting). At bottom, the Court’s opinion is thus a rejection of the common sense of the American people, who have recognized a need to prevent corporations from undermining self-government since the founding, and who have fought against the distinctive corrupting potential of corporate electioneering since the days of Theodore Roosevelt. It is a strange time to repudiate that common sense. While American democracy is imperfect, few outside the majority of this Court would have thought its flaws included a dearth of corporate money in politics.

Then, shortly thereafter, in President Obama’s State of the Union address, Obama registered his opposition to the decision — directly to several of the justices in attendance. As the NYT’s Linda Greenhouse wrote:

Mr. Obama’s words were sharp, echoing his earlier criticism of the court’s decision last week in the Citizens United case to strike down the limits that the McCain-Feingold campaign finance law placed on independent political expenditures by corporations and unions. The decision would “open the floodgates for special interests — including foreign companies — to spend without limit in our elections,” Mr. Obama said, adding that “I don’t think American elections should be bankrolled by America’s most powerful interests.” He urged Congress to “pass a bill that helps correct some of these problems.”

Then, there was Justice Alito’s response at the speech and Chief Justice Roberts’s response following the speech.

With Stevens due to retire, the President shot one more arrow directly at the Citizens United opinion, saying this afternoon of his pick to replace Stevens:

It will also be someone who, like Justice Stevens, knows that in a democracy, powerful interests must not be allowed to drown out the voices of ordinary citizens.

So, that’s a key qualification now.

ALSO:

• For my take on the contributions that Justice Stevens made to LGBT equality while on the Court, here’s my article at Metro Weekly.
• Ari Shapiro — in his first solo day covering the White House for NPR — takes on the vacancy and what it means for Obama.
• Lyle Denniston at SCOTUSblog gets in his first take.
• The Washington Post talks to Jonathan H. Adler, Erwin Chemerinsky and Walter Dellinger about how Obama should make his pick.

I disagree.

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?

* * *

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.

* * *

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.

As Marty Lederman has written, “The first category [of laws that the Justice Department has declined to defend] is cases in which intervening Supreme Court decisions have rendered the defense of the statute untenable.” That is plainly not the case here, where even the most successful Supreme Court decision since the law’s passage – Lawrence v. Texas – did nothing to change the standard of review of the military ban.

Lederman then notes, “The second category involves statutes that in DOJ’s view infringe the constitutional powers of the President himself.” These cases have traditional involved congressional passage of laws that directly conflict with presidential authority. The most noted of these cases is INS v. Chadha, where the executive branch refused to defend a portion of the Immigration and Nationality Act that authorized either chamber of Congress, effectively, to veto the decision of the executive branch regarding deportation of certain people from the country.

Lederman introduces the final as such: “The third, and smallest, category involves statutes that the President has publicly condemned as unconstitutional.” This, unfortunately, seems a much more broad of a category than it is. Note that Lederman describes it as the “smallest” category of these rare exceptions. The case most often cited for this exception is a 1946 case where the president refused to defend a law that prohibited payment to “certain employees of the Government” who were “specified by name” in the law. The Supreme Court agreed that the law was unconstitutional and struck it down.

The only other situations that don’t neatly fit into those categories – but overlap with them – include one situation when, in a case regarding “minority preference policies adopted by the Federal Communications Commission,” the Justice Department determined that the policy was unconstitutional. Now-Chief Justice John Roberts, then acting solicitor general in DOJ, argued against the FCC policies, but – important to note here – the Bush administration allowed the FCC to argue in defense of the policies. In other words, the government – just not the Justice Department – was still acting to defend the policies.

A final scenario, pointed out to me today by former Clinton White House lesbian and gay liaison Richard Socarides, was in 1996, when the Defense Department Authorization bill contained an amendment that then-White House counsel Jack Quinn described as “require[ing] the Armed Forces to toss out of the military everyone who is HIV positive.” President Clinton determined that this provision, which had not been subject at that point to review by any court, was unconstitutional. He, accordingly, directed the Justice Department not to defend the law.

In that vein, the brief filed on Monday is far less over-the-top than the brief filed this past year by DOJ in defense of DOMA. This brief goes through the law and explains the argument of why, under that law, the DADT challenge brought by the Log Cabin Republicans should fail.

Despite suggestions made that the use of comments made in 1993 by then-Chairman of the Joint Chief of Staff Colin Powell is inappropriate because he said earlier this year that his view has since changed, the question before the court is whether Congress had a basis in 1993 to reach the conclusions it reached then. Clearly, Powell’s comments at the time were one of the things considered by Congress in passing the law, which is why advocates of repeal heralded his comments earlier this year. Although DOJ would have done well to note that Powell’s views had changed, that fact is irrelevant to the legal question at issue.

Regarding that legal issue, it also should be noted that LCR has brought a facial challenge to the law. A facial challenge to a law requires the court hearing the case to find that the law in question is unconstitutional in all circumstances. This is contrasted with an “as-applied” challenge to the law, which presents a court with deciding only if the challenged policy is unconstitutional as to that individual. Obviously, it is far more difficult to succeed in a facial challenge.

The only real issue that I have with the brief is its treatment of LCR’s witnesses. I would not have used the quotation marks around “experts,” as was done in the DOJ brief, although it does seem that the reason for doing so was because DOJ’s lawyers view the testimony given by LCR’s designated experts as irrelevant to the questions in dispute in the case. As such, DOJ would – it appears – challenge their designation as such if the matter were to go to trial. Regardless, the scare quotes, as they often are called, aren’t necessary.

Also, if – as was claimed this afternoon by the Palm Center’s Nathaniel Frank and Aaron Belkin – the Justice Department mischaracterized or misrepresented their views, then that is a legitimate criticism that should be addressed immediately.