The Choice to Defend DOMA, and Its Consequences

NOTE FROM JOHN: I’m happy to introduce Richard Socarides, a long time friend, former Hill staffer, and then former top aide to President Clinton, who will be writing for us from time to time on a variety of issues.

Today’s topic is whether or not President Obama’s Department of Justice had a choice to file a brief supporting the Defense of Marriage Act. The Department of Justice says they had no choice but to support DOMA. Some (but not other) outside legal experts claim the administration had no choice. Richard, who worked quite literally in the Oval Office as a top aide to the president (he’s pictured above, in glasses, standing between President Clinton and Janet Reno), says categorically that the DOJ had a choice, and they chose wrong. He goes on to explain exactly how it works when the president is confronted with a choice such as DOMA.

Richard is the most senior former administration, and only former White House, official to weigh in on this matter. He was quite literally there when these types of decisions were being made in the White House. It appears we finally have our definitive answer to the much-talked-about post I wrote about the other day on this matter. Here is Richard’s piece.
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The Choice to Defend DOMA, and Its Consequences
by Richard Socarides

Like many other gay people who support the president, and as someone who had hoped he would be a presidential-sized champion of gay civil rights from the start, I was disturbed by his administration’s brief defending the so-called Defense of Marriage Act (DOMA), filed late last week, in opposition to our full equality.

It had such a buckshot approach to it, a veritable kitchen sink of anti-gay legal theories, that it seemed expressly designed to inflict maximal damage to our rights. Instead of making nuanced arguments which took into account the president’s oft-stated support for repealing DOMA – a law he has called “abhorrent” – the brief seemed to embrace DOMA and all its horrific consequences.

I was equally troubled by the administration’s explanation that they had no choice but to defend the law. As an attorney and as someone who was directly involved in giving advice on such matters to another president (as a Special Assistant for civil rights to President Bill Clinton), I know that this is untrue.

No matter what the president’s personal opinion, administration officials now tell us that the US Department of Justice (DOJ) must defend the laws on the books, and must advance all plausible arguments in doing so. Thus, the theory goes, the DOJ was just following the normal rules in vigorously defending the anti-gay law.

I know and accept the fact that one of the Department of Justice’s roles is to (generally) defend the law against constitutional attack. But not in all cases, certainly not in this case – and not in this way. To defend this brief is to defend the indefensible.

From my experience, in a case where, as here, there are important political and social issues at stake, the president’s relationship with the Justice Department should work like this: The president makes a policy decision first and then the very talented DOJ lawyers figure out how to apply it to actual cases. If the lawyers cannot figure out how to defend a statute and stay consistent with the president’s policy decision, the policy decision should always win out.

Thus, the general rule that the DOJ must defend laws against attack is relative – like everything in Washington. And even when the DOJ does defend a law against constitutional attack, it does not have to advance every conceivable argument in doing so (such as the brief’s invocation, in a footnote, of incest and the marriage of children). In fact, many legal experts believe that in this particular case none of the issues going to the merits of whether or not DOMA is constitutional needed to be addressed to get the case thrown out. The administration’s lawyers could have simply argued, for example, that the plaintiff’s had no standing. There was no need to invoke legal theories that were not only offensive on their face, but which could put at risk future legal efforts on behalf of our civil rights.

I am not suggesting that it is easy to get the DOJ to agree not to defend a law on the merits, because it is not. Someone has to be aggressive and make persuasive arguments to the president. Someone on a staff level has to believe strongly that it is the right thing to, not defending DOMA, and be willing to push hard. But it is doable. It does happen. It is one of the reasons the president needs to appoint a high-ranking, respected, openly gay policy advocate to oversee government efforts toward lesbian, gay, bisexual and transgender equality (as I and others have previously urged).

On May 2, 2009, at the 100-day point of the Obama presidency, I wrote a Washington Post Op Ed, Where’s Our ‘Fierce Advocate’?, bemoaning the president’s silence over our most significant civil rights court victory to date, recognizing marriage in Iowa. I thought, with a little push from the president, this could have been a marriage tipping-point for us. Call it a missed national growth opportunity.

Now, six weeks later, we seem to have gone from silence to outright hostility, and from our very own Department of Justice.

Based on my own White House experience, I know that these things are not always fully intentional. Signals get crossed. In an environment where events transpire at often breathtaking speed, mistakes are made. And in fact, I have heard from some who believe that an effort was made in this case to scale back some of the most offensive arguments in this brief (the Lambda Legal statement says this). Clearly those efforts did not go far enough.

Looking at the administration’s performance overall during these past five months, we see how little progress has been made to fulfill the president’s promises to our community, on even the most basic level. It is disheartening.

I am still hopeful that much can be accomplished over the course of this presidency. But I strongly believe that to do so we must make it loud and clear that we will not be sacrificed to the altar of political expediency, that there will be a steep price to pay if our constitutional rights are ignored or put off indefinitely, and that a deeply offensive brief like the one filed last week will not be allowed to go unchallenged.

As we approach the 40th anniversary of Stonewall, I’m reminded of something President Obama said dur
ing the campaign: “Change will not come if we wait for some other person or some other time. We are the ones we’ve been waiting for. We are the change that we seek.”

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