Source: Los Angeles Times, AmericaBlog, Leonard Link, Washington Blade
Legal analysts, activists, and bloggers continued a flurry of criticism aimed at the Obama Administration for a brief filed Thursday by the US Justice Department brief supporting the federal Defense of Marriage Act (DOMA).
While initial responses by activists to the filing faulted the administration for defending the law at all, some of the more recent criticism has been more nuanced, agreeing with DOJ lawyers that they were required to defend the law, but chiding the department for the arguments they presented.
The mayors of Los Angeles and San Francisco joined today in voicing concern about the filing, Los Angeles Times reports.
“I’m concerned about some of the arguments being made by the Justice Department,” Los Angeles Mayor Antonia Villaraigosa said as he joined San Francisco Mayor Gavin Newsom to kick off the annual LA Pride parade in West Hollywood..
“I think it's a big mistake,” Newsom said of the legal filing.
Analysts fault Obama DOJ for lazy arguments in brief supporting DOMA [contd.]
On Friday, and continuing throughout the weekend, LGBT rights groups and bloggers have been more blunt in their criticism.
Like her counterparts at other groups, Rea Carey, executive director of the National Gay and Lesbian Task Force Action Fund, called the administration's defense of the law unacceptable. “Unfortunately, the malicious and outrageous arguments and language used in the Justice Department's brief [are] only serving to inflame and malign the humanity of same-sex couples and our families,” Carey said.
But several legal analysts who have considered the brief and the case it applies to echo Villaraigosa’s more subtle criticism and question only specific elements of the brief, without always faulting the overall brief.
Ever since the brief was filed late Thursday in response to a lawsuit filed by a Mission Viejo couple, Justice spokesmen and apologists for the administration have argued that the department’s lawyers are required to defend laws like DOMA that are passed by Congress. A DOJ spokesman said Friday, “[U]ntil Congress passes legislation repealing the law, the administration will continue to defend the statute when it is challenged in the justice system.”
A pro-gay lawyer told the Washington Blade Friday that “the Department of Justice is doing what the Department of Justice does, which is defend the statute.”
But several legal analysts have countered that the Administration went far beyond what it’s required to do in the brief. At AmericaBlog, lawyer and former Clinton Administration aide Richard Socarides who is gay, says of the brief:
It had such a buckshot approach to it, a veritable kitchen sink of anti-gay legal theories, that it seemed expressly designed to inflict maximal damage to our rights. Instead of making nuanced arguments which took into account the president's oft-stated support for repealing DOMA - a law he has called "abhorrent" - the brief seemed to embrace DOMA and all its horrific consequences.
In a detailed analysis of the DOJ filing, New York Law School professor and legal-issues blogger Arthur Leonard, agrees with Administration’s defender that the justice department was wise to argue that this particular case should be thrown out, but he notes that the brief already included ample and compelling arguments against the flawed case without resorting to the time-worn anti-gay arguments that were thrown into the brief.
On balance, I would say that the Justice Department brief goes farther than it has to in making arguments to “get rid of this case,” which is probably the instruction that was given to Mr. Simpson [the DOJ lawyer responsible for the brief]. When a trial attorney is given the assignment to write a brief to get a case dismissed, it is not surprising that he throws in every argument he can find that has worked before in some case or other. I would not fault him for doing so. I fault his bosses, at the political level of the Department, for failing to have the political sensitivity to the President's claimed political agenda to see that some arguments should not be made in this brief.
That’s an important distinction. It’s one that Socarides echoed in his AmericaBlog column:
Thus, the general rule that the DOJ must defend laws against attack is relative – like everything in Washington. And even when the DOJ does defend a law against constitutional attack, it does not have to advance every conceivable argument in doing so (such as the brief’s invocation, in a footnote, of incest and the marriage of children).
Both Leonard and Socarides fault the DOJ for taking the easiest route in their filing. Socarides even suggests that, if its lawyers had spent more time on the case, they might even have advanced an argument – at least as a fallback if the narrower arguments for dismissal did not work – that would have advanced a case for overruling DOMA.
“I am not suggesting that it is easy to get the DOJ to agree not to defend a law on the merits, because it is not. Someone has to be aggressive and make persuasive arguments to the president,” he writes.
“It is one of the reasons the president needs to appoint a high-ranking, respected, openly gay policy advocate to oversee government efforts toward lesbian, gay, bisexual and transgender equality (as I and others have previously urged),” Socarides adds.
Although he doesn’t think this case should have been used as a platform for arguing against DOMA on broad principals, Leonard advances a similar call for some political backbone from the Obama administration:
But I think now that we are half a year into the new administration, it is past time for Obama and [Attorney General Eric] Holder to start showing some leadership on the issues where the campaign made specific pledges. It is time for the administration to move on DADT and DOMA, and not to sit back and wait for events to develop.
Source: Mayors criticize Justice Department support for Defense of Marriage Act [Updated] | L.A. Now | Los Angeles Times
The Choice to Defend DOMA, and Its Consequences | AmericaBlog
Has Obama Administration Gone Over to the Dark Side in LGBT Issues? | Leonard Link
Experts: DOJ required to defend DOMA | Washington Blade
hattip: Pam’s House Blend