I remember sitting in my Federal Courts class during my third year of law school when my professor, Mel Zarr, describing a string of cases on some issue or another, asked me why the court rulings started to change over time. I said it was because there was an election and the new conservative judges were starting to implement their judicial philosophy.
Some of my classmates (future inside-the-beltway smartypants) were appalled that I had suggested that judges were “political.” I was appalled at their naivete. And I’m just as appalled at how some of our friends reacted yesterday to the Obama administration’s brief in support of the Defense of Marriage Act (DOMA).
Lawyers get very sanctimonious about the law, and the need to obey the law and legal precedent, above all else. But, the law can be very fluid — and lawyers are taught in law school to find new ways to interpret words. Lawyers who craft new legal strategies and theories that sway courts are venerated in history as civil rights heroes (we even name buildings and airports after them). So, the notion that the Obama administration had only one recourse yesterday — to file a brief in support of DOMA — is very narrow legal thinking. Sure, the brief was a legal document, but it was also very much a political document. It had the backing of the President of the United States. And anyone who says that Republican and Democratic presidents alike don’t let their politics influence their arguments before the courts is either a liar or terribly naive.
For some, the decision whether to defend or oppose DOMA is purely a legal exercise. For many of us, it’s our lives. I’m sure, along the way, Thurgood Marshall and the NAACP were told to back off on their challenge to Topeka’s segregation law. After all, that law had been unsuccessfully challenged already, and there was that very clear Supreme Court precedent on “separate, but equal.” The law is the law. Who was this political activist Thurgood Marshall to suggest it should be overturned?
It’s shocking how many people viewed yesterday’s DOMA discussion through their own purely intellectual, legal lens. The condescending tone from some of the legal types, both straight and gay – all Democrat – was insulting, demeaning, and horribly out of touch (with their own humanity). Gay Americans lost rights last November in California. We had fundamental rights taken away by an election. Think about that. When was the last time that happened in this country?
Yesterday, a Democratic President of the United States of America, in the year 2009, and an African-American child of inter-racial parents no less, gave his lawyers the go ahead to compare our marriages to incest on the same day that 42 years ago the Supreme Court ruled in his parents’ favor in Loving v. Virginia. And these people, along with our President, are suggesting that the appropriate response is to shrug our shoulders and go home, since, after all, the law is the law?
So, yes, I am advocating that we push the envelope and demand new and creative thinking on legal issues, on our civil and human rights. That’s how change happens (there’s that pesky word again). That’s what we expect from our President who promised change, who promised to be a “fierce advocate” for our rights. Yesterday’s homophobic brief would have met the expectations we had from George Bush (or Jerry Falwell). From President Barack Obama, it was an appalling betrayal of our humanity, and his own.
I’m sick of being separate, but equal. And it’s now clear that many of you agree. We demand our rights, and we expect this President, who promised them in exchange for millions of our votes and millions of our donations, to deliver. And so help me God, we will continue to hold this President accountable for his broken promises and his betrayals, to hell with the lawyers.