For Shame, Mr. President

In the first of a rash of federal lawsuits filed against the federal Defense Of Marriage Act (1 U.S.C. and 28 U.S.C. 1738c) has just been made the subject of a strongly-worded motion to dismiss filed by the United States Department of Justice. This is not the high-profile case filed by David Boies and Ted Olson (called Perry v. Schwarzenegger) but rather a case involving a gay couple who were married under the pre-Prop. 8 Marriage Cases law, which means that under California law, they still are married. Note also that the brief (linked below) is signed by political appointees of President Obama.

The U.S. Attorney has argued that indeed, these men are married under California law, but that doesn’t matter a bit in Federal court because DOMA prohibits the Federal government from recognizing the state-law proclamation that they are married. This represents a reversal of position from President Obama, who in his campaign promised to push for a repeal of DOMA:

I support the complete repeal of the Defense of Marriage Act (DOMA)– a position I have held since before arriving in the U.S. Senate. While some say we should repealonly part of the law, I believe we should get rid of that statute altogether. Federal law should notdiscriminate in any way against gay and lesbian couples, which is precisely what DOMA does.

Well, that’s not what his Administration argued in court today. Today, lawyers acting at his behest argued for the Court to uphold DOMA, and did so in fairly strong terms, terms which wpuld please Prop. 8 supporters:

• DOMA is Congress exercising its powers under the Full Faith and Credit Clause, not a violation of it.
• DOMA was not passed as a result of discriminatory animus towards gay people.
• DOMA is non-discriminatory because it still allows gay people to marry people of the opposite sex.
• DOMA is justified because it’s okay to have laws against marrying children and prohibiting incest.
• DOMA is consistent with the Equal Protection and Due Process clauses, Roemer v. Colorado and Lawrence v. Texas notwithstanding.
• DOMA saves the Federal government money by restricting the scope of Federal benefits provided to married couples.
• There is no constitutional right of gay people to marry one another; any contrary analogy to Loving v. Virginia is not well-taken.

Don’t believe me? Read the brief here. About the only thing I can say in DOMA’s defense, myself, is that it seems to be deferential to the states on a matter that is traditionally left to state law, and therefore presumptively appropriate from a federalism point of view. Which is not an insignificant concern, but in fact DOMA is about as nationalised as a law can get. What happens when a state (like, say, Iowa or New Hampshire) adopts same-sex marriage? Doesn’t deference to state law and local political decisions made under a state’s plenary police power compel the Federal Government, under the Tenth Amendment, to recognize that marriage as valid?

And why is he doing this? The claim is that the Department of Justice is required to defend the law regardless of what anyone in the Department or the White House thinks about it, and the President wants to see Congress repeal DOMA rather than eschew his duty as the chief executive mandated by Congress with enforcing the law as written. This, however, is complete bullshit. Administrations of both parties and a wide spectrum of political beliefs have taken positions that various laws were unconstitutional and urged the courts to strike them down as such.

I don’t know how else to say this. Barack Obama is not a friend of gay people. He doesn’t care about them and knows he doesn’t have to do anything to gain their support. He takes their political support for granted, because he knows that the Republicans have made themselves so odious to gay people that they’ll never throw their political support there. Which, of course, is a gift Republicans have given Obama; he’s simply using that gift he’s been given. About all he has to do is say nice things about gay people every once in a while, and blame Congress for not repealing DOMA the way he asked it to (despite arguing that it should be upheld).

If a Republican were to come along and say “I think that leaving the decision to the states means just that, and the Federal government ought to defer to the states on this issue, whether it’s for gay marriage or against it,” that would be a vast improvement from a same-sex marriage rights perspective over the Obama Administration’s position. The problem is that the social conservatives have made it impossible for a Republican to make that pitch, make that bid for gay voters, and still survive politically as a Republican.

Shame on you, Mr. President. You courted the votes of gay people and same-sex marriage proposals. Now, these Americans who have done nothing wrong, broken no law, and for the most part given you their political support, look to you to protect their civil rights, asking you only to keep your promises to them. But in fact you talked out of both sides of your mouth on this issue during your campaign, you’re talking out of both sides of your mouth on the issue now, and you are betraying the trust of these Americans by attacking instead of defending their rights. For shame.