Obama Defends Marriage
Move over, Carrie Prejean. President Obama apparently thinks that marriage should be defined traditionally, too. And he’s sent government lawyers into court to uphold the Defense of Marriage Act. And it has some people upset.
We just got the brief from reader Lavi Soloway. It’s pretty despicable, and gratuitously homophobic. It reads as if it were written by one of George Bush’s top political appointees. I cannot state strongly enough how damaging this brief is to us. Obama didn’t just argue a technicality about the case, he argued that DOMA is reasonable. That DOMA is constitutional. That DOMA wasn’t motivated by any anti-gay animus. He argued why our Supreme Court victories in Roemer and Lawrence shouldn’t be interpreted to give us rights in any other area (which hurts us in countless other cases and battles). He argued that DOMA doesn’t discriminate against us because it also discriminates about straight unmarried couples (ignoring the fact that they can get married and we can’t).
He actually argued that the courts shouldn’t consider Loving v. Virginia, the miscegenation case in which the Supreme Court ruled that it is unconstitutional to ban interracial marriages, when looking at gay civil rights cases. He told the court, in essence, that blacks deserve more civil rights than gays, that our civil rights are not on the same level.
Apparently, some people didn’t beleive Obama when he stated that he opposed gay marriage. So, more buyer’s remorse from those people.
I wonder if a Cheney Administration would have taken a more reasonable position vis a vis DOMA. It could hardly have staked out a more conservative one than the Obama administration did.
Here’s the thing: as Dale Carpenter over at Volokh points out, the DoJ went all the way to the wall to defend DOMA, even though there was no need to do so.
Of most interest is what the DOJ has to say about the due process and equal protection claims, rejecting just about every single variation of an argument that gay-rights scholars and litigants have made over the past 30 years.
Fundamental right to marry that includes same-sex couples? Nonsense under the narrowest approach to such rights, as articulated by Chief Justice Rehnquist in Washington v. Glucksberg, who wrote that in evaluating a fundamental-rights claim a federal court must follow tradition and tradition is to be understood as narrowly as possible.
The Loving analogy? Rejected. Strict scrutiny for laws discriminating against gays and lesbians? Unprecedented. Sex discrimination? Meritless. Romer v. Evans? That dealt with a comprehensive denial of rights, unlike DOMA. Lawrence v. Texas? That was a privacy case.
Ninth Amendment rights? No such thing.
Essentially, the Obama Administration’s justice department filed a brief that attempts to gut practically every constitutional gay rights argument you can think of. I would have expected Obama’s defense of DOMA–assuming there was going to even be one, which there didn’t have to be–to be more or less pro forma. Instead of arguing that the law was unconstitutional–which Bush and Clinton did a couple of times–or making boilerplate legal arguments as a matter of form, the DoJ went for the throats of gay marriage advocates.
I really do wonder why.