That thing that we thought was becoming a thing – the issue of how actively (if at all) the administration will get involved in the upcoming Prop 8 and DOMA cases before the Supreme Court – is now officially a thing.
Today’s video of White House spokesman Jay Carney shutting down a press conference, immediately after being asked about the issue by two separate reporters (see below), pretty much cinched it.
There’s been an increasing flurry of stories over the past several days about whether the Obama Justice Department will file briefs in favor of gay marriage during the upcoming Supreme Court arguments on Prop 8, the California proposition that repealed the right of gay couples to marry in that state in 2008, and the Defense of Marriage Act (DOMA), a 1996 law that bans the federal government from recognizing the marriages of gay couples, and attempts to stop states from being forced to recognize “gay” marriages conducted in another state.
Now that President Obama is firmly on the side of supporting gay marriage, gay rights advocates are hoping the administration will file a brief, or briefs, supporting the gay rights challenges on DOMA and Prop 8 expected to be heard by the Supreme Court this coming March.
The administration’s response to these questions has been somewhat clumsy at best.
GOP super-lawyer Ted Olson’s call for the White House to submit a brief brought the issue to a head last Friday, when the White House and the Justice Department both gave what sounded like evasive answers (Justice sounded downright snippy) to Chris Johnson of the Washington Blade:
The Obama administration has thus far stayed out of the Prop 8 case. Asked in September by the Washington Blade whether the U.S. government would weigh in, White House Press Secretary Jay Carney had no comment and Nanda Chitre, a spokesperson for the Justice Department, said, “We are not a party to this litigation and would decline further comment.”
Next, Politico and Buzzfeed and the Washington Post weighed in, making it clear that the story had legs outside of the gay community. Buzzfeed suggested that the administration was “dodging” questions on the matter.
Then we come to today, and the video below, which isn’t good for the administration. Whether intended or not, it looks like the video shows White House spokesman Jay Carney shutting down a briefing because he was asked by two reporters why the administration has no comment on whether it will file a brief in the Prop 8, DOMA case before the Supreme Court.
Here’s the video:
Carney won’t remember this, because he wasn’t the spokesman at the time. But at the beginning of the Obama administration, they set the stage for a lot of bad blood with the gay community by making two serious mistakes.
The first mistake was constantly giving really weak and fumbling answers when asked at press conferences whether the administration planned to move ahead with the repeal of Don’t Ask, Don’t Tell. The weakness of the answers was interpreted by many in the gay community of being evidence of a lack of political will to follow through on the President’s promise to repeal the gay ban. It set an increasingly bad tenor to what became seriously strained relations between the gay community and the White House.
The second mistake was the administration filing an incredibly homophobic brief defending the Defense of Marriage Act that was pretty awful. It invoked incest and pedophilia, among other things.
The lessons learned?
1) Don’t demur when asked about gay rights. And especially don’t give an answer that sounds an awful lot like the answer you kept giving on DOMA.
In this case, Carney’s big mistake was saying “as you know, the administration is not a party to this case.” The implication being, they’re not even a party to the case, so why should they file any briefs? It really doesn’t matter if the administration is a party to the case. They can file briefs. Olson himself said so, and he should know – he was the top Republican guy filing cases before the Supreme Court. So giving an answer that sounds like it’s trying to confuse people into thinking they of course wouldn’t file a brief is not exactly the best way to win gay friends and influence gay people. (It also sounds an awful lot like the “gosh, we could never not defend DOMA in court” answer that we got, a lot, from the administration – and it was incorrect.)
2) Legal briefs matter, and just as importantly, our community thinks they matter.
I’ve already explained in detail my concerns about the administration the PR (not to the mention the substance) wrong on this issue. It doesn’t matter if the Justice Department hasn’t yet reached a decision (why hasn’t it?) on whether to file briefs in the Prop 8 and DOMA cases, and that’s why the administration can’t yet give a straight (so to speak) answer. It sounds like the administration is waffling on our civil rights. And if that’s simply a matter of some administration official(s) sending the wrong message, then fix it. Fast.