With the latest brief from the Obama administration in the DOMA case, we’ve returned to the question of whether the Obama administration even has to defend this law. Both John and I (among many others, including Richard Socarides who worked for eight years in the Clinton White House) believe the White House was under no obligation to defend that law. Time Magazine’s John Cloud takes the same view:
Now the Administration says it opposes DOMA and wants it overturned — but that tradition dictates that it defend the law. And that is why, the White House said in a statement, “the Department of Justice has filed a response to a legal challenge to [DOMA], as it traditionally does when acts of Congress are challenged.” (See a gay-rights timeline.)
Legalistically speaking, the tradition argument is true, but it’s yet another Obama dodge. The Administration could easily decline to defend the anti-gay law on discrimination grounds, just as the Administration of George H.W. Bush declined to defend federal laws setting a preference for awarding broadcast licenses to minority-owned businesses in 1990. The radical firebrand at the Department of Justice who successfully argued against defending those laws? A young DOJ attorney named John Roberts, who is now the Chief Justice of the United States. Clearly, Obama could have refused to defend DOMA if he had really wanted to. Georgetown’s Hunter cites other cases in which the Justice Department has declined to defend laws, including one involving a minor cable-TV dispute. As Eugene Volokh of UCLA told me Aug. 18, there is nothing in the constitution or the law that would have prevented the Department of Justice from sitting on the sidelines in the DOMA case.
Nothing except politics. Obama’s triangulation between left and right has become excruciatingly obvious on this issue, and he’s not quite as deft a politician as Bill Clinton at keeping his left flank at bay.
Fighting against the Obama administration over the original DOMA brief was a painful experience. But, we had to do it. It was very important to stand our ground — and most of us did. I know many people in DC watched very closely how we fought back, actually quite fearlessly, and showed the Obama administration that we would not be taken for granted. It made an impression at the White House, too, I think.
Interestingly, as this issue played out in June, I found that many of those gay legal minds who argued that Obama had to defend the suit were either looking for jobs in the Obama administration or were lobbyists with clients who needed something from the White House. Now, not all of them were up front about that. But, we knew. And, this piece in Time is further confirmation that we were right. Obama didn’t have to defend DOMA at all.