The Obama administration, which came to office promising to protect gay rights but so far has not done much, actually struck a blow for the other side last week. It submitted a disturbing brief in support of the Defense of Marriage Act, which is the law that protects the right of states to not recognize same-sex marriages and denies same-sex married couples federal benefits. The administration needs a new direction on gay rights.
A gay couple married under California law is challenging the act in federal court. In its brief, the Justice Department argues that the couple lack legal standing to do so. It goes on to contend that even if they have standing, the case should be dismissed on the merits.
The brief insists it is reasonable for states to favor heterosexual marriages because they are the “traditional and universally recognized form of marriage.” In arguing that other states do not have to recognize same-sex marriages under the Constitution’s “full faith and credit” clause, the Justice Department cites decades-old cases ruling that states do not have to recognize marriages between cousins or an uncle and a niece.
These are comparisons that understandably rankle many gay people. In a letter to President Obama on Monday, Joe Solmonese, president of the Human Rights Campaign, a gay rights organization, said, “I cannot overstate the pain that we feel as human beings and as families when we read an argument, presented in federal court, implying that our own marriages have no more constitutional standing than incestuous ones.”
The brief also maintains that the Defense of Marriage Act represents a “cautious policy of federal neutrality” — an odd assertion since the law clearly discriminates against gay couples. Under the act, same-sex married couples who pay their taxes are ineligible for the sort of federal benefits — such as Social Security survivors’ payments and joint tax returns — that heterosexual married couples receive.
In the presidential campaign, President Obama declared that he would work to overturn the Defense of Marriage Act. Now, the administration appears to be defending it out of a sense of obligation to support a validly enacted Congressional law. There is a strong presumption that the Justice Department will defend federal laws, but it is not an inviolable rule.
If the administration does feel compelled to defend the act, it should do so in a less hurtful way. It could have crafted its legal arguments in general terms, as a simple description of where it believes the law now stands. There was no need to resort to specious arguments and inflammatory language to impugn same-sex marriage as an institution.
The best approach of all would have been to make clear, even as it defends the law in court, that it is fighting for gay rights. It should work to repeal “don’t ask, don’t tell,” the law that bans gay men and lesbians in the military from being open about their sexuality. It should push hard for a federal law banning employment discrimination. It should also work to repeal the Defense of Marriage Act in Congress.
The administration has had its hands full with the financial crisis, health care, Guantánamo Bay and other pressing matters. In times like these, issues like repealing the marriage act can seem like a distraction — or a political liability. But busy calendars and political expediency are no excuse for making one group of Americans wait any longer for equal rights.
Rachel Maddow and Howard Dean on Obama's DOMA controversy
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Dean: DOMA Brief a "Big Mistake"
Former Democratic National Committee chairman and Vermont governor Howard Dean appeared on The Rachel Maddow Show on Monday night to discuss the recent U.S. Department of Justice brief that defends the Defense of Marriage Act by making comparisons to pedophilia and incest.
Dean, who called the brief a “big mistake,” focused his critique on its language, while maintaining that President Obama could not have been aware of it. He also suggested that the uproar caused by the brief will necessitate some kind of make good to the LGBT community, most likely in the way of earlier action to repeal the “don’t ask, don’t tell” policy.
“The language in this brief is really offensive and it really is a terrible mistake,” said Dean. “I doubt very much the president knew this was coming. I don’t think for a minute this represents the president’s position. But he is now going to have to dig himself out of this, because people are really upset about this, not just in the gay and lesbian community, but in the community of people who are interested in equal rights,” he said.
“I think they’re going to have to do something about this,” Dean continued. “What most likely I would predict is that they’re gong to have to move up their switching positions on ‘don’t ask, don’t tell.’”
"Congress has not passed a single piece of legislation in the four decades since Stonewall to ensure that Americans who are lesbian, gay, bisexual or transgender are treated equally under the law. So, millions of Americans remain denied this American Promise. In these same four decades, Congress has passed two pieces of legislation that do the exact opposite and that actually openly discriminate against those Americans. As I said in my campaign, I support repeal of the Don't Ask Don't Tell legislation, as well as the repeal of the entire Defense of Marriage Act. I am here to tell you that yes, we can end discrimination. And that yes, the time for this is now. Many will argue that while equality is a worthwhile goal, civil rights have been given incrementally. They will also tell you that we have other important priorities. But I ask: Where is our moral compass when we knowingly continue to allow members of our society to be unequal under the law? Where is our moral compass when we have laws that openly discriminate against some members of our society?"
—Barack Obama's speech on GLBT rights, as imagined by Chris Crain
"Even if you set aside the incest point (which I still feel is valid), the DOJ brief still clearly states that it feels that DOMA is in no way discriminatory, nor that it denies anyone any rights or privileges. It claims that gay people have no right to marry, and that the state has an overriding interest in making sure that legislators are protected in their right to make decisions regarding the rights of gay people (in other words, we have no fundamental rights, just what lawmakers give us.) That is so out of line with Obama's campaign platform that it is staggering. If it is not withdrawn, it will eventually be added to the list of moronic legal opinions in history that were grossly out of step with freedom and equality. This is what he wants his legacy to be? I doubt it. Whether or not he had anything to do with writing it, he certainly can have something to do with dealing with it now that it is out on the table."
—Lymis, reacting to "John Berry Explains It All: Gay Rights Coming, And No 'Deal' Between White House and HRC"
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