Ben Smith at Politico just reported the following statement from the Department of Justice over their brief, filed last night, comparing gay marriage to incest:
As it generally does with existing statutes, the Justice Department is defending the law on the books in court. The president has said he wants to see a legislative repeal of the Defense of Marriage Act because it prevents LGBT couples from being granted equal rights and benefits. However, until Congress passes legislation repealing the law, the administration will continue to defend the statute when it is challenged in the justice system.
Yeah, you see, that’s an outright lie. Fortunately for you, and unfortunately for Justice, Joe and I are both lawyers. We suspected this betrayal was coming, so we read up on the law. In fact, George W. Bush (ACLU et al., v. Norman Y. Mineta – “The U.S. Department of Justice has notified Congress that it will not defend a law prohibiting the display of marijuana policy reform ads in public transit systems.”), Bill Clinton (Dickerson v. United States – “Because the Miranda decision is of constitutional dimension, Congress may not legislate a contrary rule unless this Court were to overrule Miranda…. Section 3501 cannot constitutionally authorize the admission of a statement that would be excluded under this Court’s Miranda cases.”), George HW Bush (Metro Broadcasting v. Federal Communications Commission), and Ronald Reagan (INS v./ Chadha – “Chadha then filed a petition for review of the deportation order in the Court of Appeals, and the INS joined him in arguing that § 244(c)(2) is unconstitutional.”) all joined in lawsuits opposing federal laws that they didn’t like, laws that they felt were unconstitutional. It is an outright lie to suggest that the DOJ had no choice.
But it’s worse than that. Let’s just assume for a moment that the Justice spokesman didn’t lie to Politico, even though they did. Let’s just assume that Obama had no choice but to oppose the gay couple filing this DOMA lawsuit. Where in the law does it say that Obama was required to compare gay marriage to incest?
And putting that little bit of religious right messaging aside, even if they “had” to file the brief against us, why didn’t they just file a brief that argued the technicalities about why the case should have been thrown out (e.g., the plaintiffs had no standing)? No, what Obama did was throw the legal kitchen sink at us in a brief that could have been written by Antonin Scalia. They argued that DOMA is constitutional. Worse yet, they argue that it was a reasonable, rational, good law that actually saves the government money. They argued that DOMA wasn’t motivated by hate. That DOMA doesn’t discriminate against gays one bit because, apparently, gays can get married if they want… well, if they want to marry straight people of the opposite gender. They invoked Loving v. VA, the miscegenation case, and argued how it doesn’t apply to gay marriage, undercutting the entire basis of our civil rights movement – saying that our civil rights are not akin, are not as worth, not as real, as the civil rights of blacks and other minorities. They went out of their way to try to diminish the legal impact of our two big Supreme Court victories, Roemer and Lawrence – that will have implications on every future civil rights battle we fight.
No. The Obama administration didn’t just lie to Politico, Obama lied to our community, or he lied to the court. But you don’t publicly call yourself a “fierce advocate” for gay rights, and then compare married gays to incest. You don’t make your first official legal statement on gay rights an outright attack on the underpinnings of our entire civil rights.
Our president had a choice. And he chose to throw us under the bus, and then knife us for good measure.
PS And here’s another lie from the Justice spokesman:
The president has said he wants to see a legislative repeal of the Defense of Marriage Act because it prevents LGBT couples from being granted equal rights and benefits.
In fact, Obama argued last night that DOMA does not deny gays any rights or benefits:
In short, then, the failure in this manner to recognize a certain subset of marriages that are recognized by a certain subset of States cannot be taken as an infringement on plaintiffs’ rights, even if same-sex marriage were accepted as a fundamental right under the Constitution…. DOMA, understood for what it actually does, infringes on no one’s rights, and in all events it infringes on no right that has been constitutionally protected as fundamental, so as to invite heightened scrutiny.
[G]ay and lesbian individuals who unite in matrimony are denied no federal benefits to which they were entitled prior to their marriage; they remain eligible for every benefit they enjoyed beforehand…
DOMA does not discriminate against homosexuals in the provision of federal benefits. To the contrary, discrimination on the basis of sexual orientation is prohibited in federal employment and in a wide array of federal benefits programs by law, regulation, and Executive order.
You see, this is the problem with what Obama did to our community last night. He can talk all he wants about helping us get our civil rights (well, in fact, notice the Justice spokesman said nothing about Obama actually helping us get DOMA repealed), but the Obama administration’s own word will now be used against us, and against him, if he ever deigns to actually fulfill even one promise to our community.