WSJ covers DOMA hate-brief controversy, DOJ says it will file more briefs defending law Obama onced called “abhorrent”

Kudos to Laura Meckler at the Wall Street Journal for going where most of the print and television reporters have refused to go (CBS also did a great story on this on their Web site, the NYT did an editorial but not a story, and we’ll be posting Rachel shortly). Namely, covering the growing rupture between President Obama and the gay community over the homophobic brief the Justice Department filed last Thursday night defending DOMA. Meckler’s story is about the latest turn of events – the largest gay right group, the Human Rights Campaign, sent a “scathing letter,” as the WSJ puts it, to Obama, protesting the anti-gay brief. The journal particularly highlighted HRC’s anger at the portion of the brief invoking incest.

The article is interesting from a few perspectives. First, that the story has finally broken into the major corporate media. Second, that the Justice Department is saying that it will continue to defend DOMA in court. That means that the second DOMA case, one which top gay lawyers tell me is a great case that we can seriously use to try to overturn the law, is going to receive the same kitchen sink of hate and bigotry that President Obama had the DOJ throw at us last week – the next case’s brief is due within the next two weeks, just in time for Stonewall’s 40th anniversary.

The third interesting fact gleaned from this story is that the DOJ’s statement comes after the Human Rights Campaign wrote Obama a scathing letter yesterday, taking him to task for the homophobic brief. Here is DOJ’s response to the WSJ reporter’s question about HRC’s brief:

“As it generally does with existing statutes, the Justice Department is defending the law on the books in court…,” said Tracy Schmaler. “Until Congress passes legislation repealing the law, the administration will continue to defend the statute when it is challenged in the justice system.” (emphasis added)

At least the DOJ spokesperson is no longer lying. Previously, the DOJ implied that the White House had no choice but to defend the law Obama once called “‘abhorrent.” In fact, that is not true, as proven this weekend in an essay by a former senior White House aide to President Clinton. Now the DOJ is simply saying that the White House “generally” defends the law in court cases. That is true, when dealing with “general” run-of-the-mill cases. But when dealing with cases that are of great political and social import to the president, as the former White House aide explains, the president traditionally orders the DOJ not defend such laws at all:

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.

In other words, the White House had a choice, and still does. But they’ve decided that our civil rights are a general, run of the mill subject for a law suit, like property disputes and arcane tax provisions (one now wonders how the White House feels about Loving v. Virginia). They do not consider our civil rights to be exceptional, or of any significant social or political import. They, therefore, will continue to file briefs defending a law the president had promised to repeal, and presenting arguments so hateful they could have been written by Jerry Falwell, George Bush, or Dick Cheney. Strike that, even Dick Cheney is better than this White House on gay marriage.

We can assume, then, that this DOJ statement is President Obama’s response to the HRC, traditionally offered with the middle finger.

The Democratic party is beginning to pay a price for having turned against the gay community and seemingly renounced their promises to support our civil rights. A $1,000 a head gay fundraiser planned by the Democratic National Committee for later this month, with VP Biden the planned special guest, is already starting to unravel as previously-committed gay luminaries are now starting to pull out. Activists are talking about protesting the event, to be held in Washington, DC on June 25, and to boycott organizations that send representatives. Many in the gay community are wondering if the gay leadership in Congress – Barney Frank, Tammy Baldwin, and Jared Polis – will continue to host the inopportune event, or whether any of them will ever even issue a statement about the unfortunate brief, or the fact that the President seems to have betrayed the community they represent.


Follow me on Twitter: @aravosis | @americablog | @americabloggay | Facebook | Instagram | Google+ | LinkedIn. John Aravosis is the Executive Editor of AMERICAblog, which he founded in 2004. He has a joint law degree (JD) and masters in Foreign Service from Georgetown; and has worked in the US Senate, World Bank, Children's Defense Fund, the United Nations Development Programme, and as a stringer for the Economist. He is a frequent TV pundit, having appeared on the O'Reilly Factor, Hardball, World News Tonight, Nightline, AM Joy & Reliable Sources, among others. John lives in Washington, DC. .

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