LETTERS From CAMP Rehoboth |
VIEW Point |
by Chris Crain |
Defending Obama's Indefensible DOMA defense
It was bad enough that after six months in office, Barack Obama has delivered almost no progress on any gay rights front. Then came the news last week that the Obama Justice Department asked a court to dismiss a lawsuit challenging the constitutionality of the Defense of Marriage Act, which blocks federal recognition of gay married couples and allows each state to choose to do the same. There is plenty to be horrified by in the DOJ brief defending DOMA, to be sure. Particularly offensive was an analogy to incestthe kind of thing we expect the right wing attorneys to do. It was also patently irrational of Obama's DOJ to argue that DOMA doesn't discriminate against gay Americans because we, too, can enter into "traditional marriages." Congratulations, gay Americans: You can wed so long as it's loveless marriage of convenience to someone of the opposite sex. It's unfathomable that lawyers for a president who is the product of an interracial marriage would use an argument rejected four decades ago in Loving vs. Virginia. The Supreme Court rejected the claim that anti-miscegenation laws weren't racist because both whites and blacks were equally restricted to marrying within their own race. More fundamentally, the DOJ was flat wrong that DOMA is constitutional. I know firsthand the destructive power of this single federal statute, which for four years now has forced me to choose between separation from my Brazilian partner or exile from the U.S. The refusal to recognize marriage licenses duly issued to same-sex couples by states like Massachusetts and Connecticut is a blatant violation of the Constitution's guarantee of equal protection. Still, even with all that's wrong about the brief, a bit of context may put things into a different perspective. You might be every bit as angry, but hopefully not just at Barack Obama. We need to remember that candidate Obama never made any commitment that I'm aware of to refuse to defend the constitutionality of DOMA. That would have been an extraordinary promise for any candidate to make, and I don't know of a single time the question was even put to Obama or his competitors, or even where he was asked the more general question of whether DOMA is unconstitutional. There's a big difference between believing a law is unfair or even discriminatory, on the one hand, and believing it is unconstitutional, on the other. Since Hillary Clinton defended her husband's decision to sign DOMA and only favored half-repeal, it's fair to say she agrees with the Obama DOJ that DOMA's deficiency is a matter of policy, not constitutionality. Ditto the Human Rights Campaign, since "the nation's largest gay rights group" chose only to score the candidates on whether they support DOMA's half-repealthereby equating Clinton's views with Obama's. If this question of DOMA's constitutionality is so crucial and fundamental, then why did everyoneall of usfail to raise it during the eons-long presidential campaign? We thought about DOMA enough to make a big deal about half vs. full repeal, and Obama was asked about whether he would defend Don't Ask, Don't Tell in court. So why didn't we ask for a commitment about refusing to defend DOMA as well? And if we didn't, maybe we should take a deep breath before accusing Obama of treason for how his lawyers ultimately answered our unasked questionin a lawsuit that most gay legal experts wish had never been brought and hope will be dismissed before it sets a bad precedent. A DOJ spokesperson claimed, "As it generally does with existing statutes, the Justice Department is defending the law on the books in court." Some gay critics have cried "lie!" by unearthing a few examples of other presidents declining to defend certain statutes in court. That only proves the administration was fair in stating that "generally" the DOJ defends laws passed by Congress. Let's also pause long enough to consider whether we really want to argue that a presidential candidate's political promises should decide the legal positions of the Justice Department. In the debate over Bush's "enhanced interrogation techniques," critics rightfully pointed out that the DOJ had an independent obligation to take positions based on the law, not politics. Some additional context is needed to understand the positions taken by gay rights groups in response to the DOMA brief. On the one hand, it was very refreshing to see Joe Solmonese of HRC pen an angry public letter to the president, even if he copped out on accepting any institutional responsibility for the big DOMA mess. Solmonese's impassioned letter calls on President Obama to "put your principles into action and send legislation repealing DOMA to Congress." The Democratic mayors of San Francisco and Los Angeles also demanded publicly that the president push DOMA repeal. Anyone who remembers that "Schoolhouse Rock" episode on how a bill becomes a law knows these so-called demands are really misdirected. The president doesn't "send" legislation to Congress. Even on top White House priorities like the stimulus and health care reform, the actual bills are drafted by legislatorshence the namewith public and private input from the administration. Our pressure should first be brought to bear on the other end of Pennsylvania Avenue. That includes the Democrats in Congress who represent L.A. and San Fran, including a certain Speaker of the House. And yet, 13 years after passage of DOMA, HRC and its friends in Congress have failed to "put principles into action" and even draft repeal legislation, identify House and Senate sponsors and co-sponsors, pressure for hearings or otherwise shepherd the bill through the legislative process. Anyone privy to gay politics in our nation's capital knows why: HRC long ago agreed with its cronies in the DNC and on the Hill not to begin pressing for DOMA repeal until other (far less important and less controversial) legislation is adopted. So let's save some of our righteous anger for our "allies" in Congress like Nancy Pelosi and Harry Reid, and our "fierce advocates" at the D.C. gay groups.Chris Crain is former editor of the Washington Blade and five other gay publications and now edits GayNewsWatch.com. He can be reached via his blog at www.citizencrain.com |
LETTERS From CAMP Rehoboth, Vol. 19, No. 08 July 03, 2009 |