It’s undeniable the contrast between Jerry Brown and President Obama as they are put in the position of having to issue legal responses to anti-same-sex marriage laws that they are on record opposing.
The former, California’s attorney general, earned praise from gays rights orgs; the latter received stinging criticism.
What is baffling to gay supporters of Obama, however, is far the brief goes in defending DOMA, as Obama repeatedly campaigned on a pledge to work to repeal the law.
John Aravosis of AmericaBlog initially called attention to the story and, after obtaining a copy of the brief, called it “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.” Others cite examples where previous administrations have refused to defend laws they do not support in court challenges.
My cynical side screams “POLITICS” folks. One theory: Obama’s administration has made the calculation that it is better to upset gay activists and delay any action on DOMA, Don’t Ask, Don’t Tell, and other issues, than to make some step that will unite a Republican party struggling to get its footing. Or the White House has a strategy to say as little as possible so as to not reignite the culture wars at a time when they try to garner support their agenda for healthcare, the environment and the economy. But that still doesn’t answer the question of why issue a brief so forceful in its defense of DOMA?
Update: The full brief is here. What is striking is that there seems to have been ample opportunity to move for dismissal merely on procedural grounds. In other words, the administration argues that the plaintiffs fail to prove an “injury in fact” in that they did not actually seek federal benefits as a same-sex couple or seek to have their union recognized in another state. But Justice Department lawyers also go to great length to justify DOMA, raising not just the argument of incest and pedophilia (specifically, that some states’ recognition of the marriage of first cousins or 16-year-olds have not been recognized in others), but rejecting claims that the ban on same-sex marriage bears relationship to Loving vs. Virginia, the Supreme Court’s decision that struck down interracial marriage. That should give pause as Boies and Olson pursue their case, the the brief helps define the challenge ahead.