There are three things worth saying about President Barak Obama's Motion to Dismiss in the case of Smelt and Hammer v. United States:
(1) It is gratuitously insulting to lesbians and gay men, referring (unnecessarily) to same-sex marriage as a "form" of marriage, approving of congressional comparisons between same-sex marriages and loving relationships between siblings, or grandparents and grandchildren, and arguing (with a straight face, I can only assume) that discrimination against same-sex couples is rational because it saves the federal government money. There are some respectable arguments in this motion, and this kind of disrespect is offensive.
(2) It argues that the couple don't have standing to sue because they have not "applied for" federal benefits. While there are some federal benefits that people do, in fact, need to apply for, no heterosexual couple applies for the vast majority of federal benefits like joint income tax returns - they just rest in the knowledge that they will be there when and if they need them.
(3) Most notably, we should all beware: Premature cases ruling against us can do harm long after the original has faded from memory. The motion cites specifically to a case from 35 years ago, Baker v. Nelson, in which the Minnesota Supreme Court waved off in fourteen short paragraphs any claim that same-sex couples might have a right to marry one another, and which the U.S. Supreme Court dismissed for want of a substantial federal question. This well-intentioned case from back when the 70s were in their infancy is still being used against us (it even made an appearance in California's first same-sex marriage case, Lockyer v. City and County of San Francisco). What may not have seemed like much of a question then has certainly gained some substance over time, but the damage from that case lingers and stings to this day.
UPDATE: This only makes the DOJ approving of this brief look worse. Good lord.
14 Comments for “Barack Obama Demonstrates His Committment to Gay Rights”
posted by mgh on
I’m not defending this brief, but your comment on standing is wholly ill-informed.
Standing is an important pre-requisite to having a case decided under Article III of the Constitution. That this couple hasn’t even gone so far as to request a federal benefit for their same-sex marriage should signal how ill-prepared this lawsuit is. If you can’t show an actual, concrete harm, then you don’t get to win a lawsuit. That’s not an anti-gay precedent: that’s a universal precedent.
Compare this to the case that was filed by GLAD, in which standing will not at all be an issue.
Speaking of premature cases…
posted by fregan on
The case filed by GLAD is a better case for those seeking federal benefits for their legal SSM in other states.
Be careful of how you read John Aravosis’ blogs on this issue. He has been close to overreacting to everything Obama has done or said since before the inauguration. He is appealing to his own constituency which is very single-issue and low-information and tend to write unthinking vitriolic anti-Obama rhetoric which borders on the puerile and fanatical. Read the comments on Americablog and know who Aravosis’ audience is.
posted by Bobby on
Well, I guess our boy in the White House is showing his true colors when it comes to gays.
Even ultra-liberal, politically-correct, Bush-hater John Aravosis is pissed off.
http://www.americablog.com/2009/06/obama-justice-department-defends-doma.html
posted by Bobby on
Fregan, are we talking about the same John Aravosis? Aravosis is a leftwinger, he hates evangelicals, hates public displays of religion, hates guns and the NRA, hates pro-lifers, hates hate speech (unless it’s directed towards a republican) and is generally 10000% a liberal. And yet, he has enough integrity to get angry with Obama when Obama does wrong. I have to respect that, at least he’s not a mindless follower of the “magical negro.”
posted by fregan on
Bobby,
You use the word hate 6 times in your post. I know John Aravosis is a liberal but he’s also intemperate. He engages in hyperbole when he writes about gay issues and I never said he he is not a man of integrity. His anger toward Obama seems to inspire his less thoughtful commenters to get carried away and the result is meaningless blather. I have no idea why you would use the phrase “Magical negro.”
posted by Jorge on
I wouldn’t read too much into the details of the motion as a policy matter. The fact that the Obama administration is filing a motion to dismiss a suit against DOMA in the first place is the only thing that counts. Even then, most executive officials believe it is their duty to uphold and defend the laws that are on the books. Gavin Newsom was an exception.
Once the government commits to opposing the lawsuit, it is obligated to advocate for the result as forcefully as possible. Sometimes the best defense they can do is ridiculous (and wins!). Sometimes it’s dirty. That’s not Obama’s fault. Blame the legal profession.
posted by Jorge on
A couple of weeks before the election, a radio host made fun of Obama by singing a song called “Barak the Magic Negro” to the tune of “Puff the Magic Dragon.” Said host was panned and I believe he was forced to apologize.
Among other things, Bobby is making a point that he gleefully rejects a certain type of political correctness.
posted by fregan on
I know the reference he was making. I don’t know why he was making it here in this context or anywhere in any context. Citing it gives it a legitimacy it should not have.
Certainly it seems like faint praise for John Aravosis and there must be better ways of defending him.
posted by Jorge on
Personally I wouldn’t be able to find it in me to defend John Arovosis with a straight face, either.
And I think it has some legitimacy–perhaps less so in the six months since Obama’s assumed office. It’s just very rude.
posted by North Dallas Thirty on
Actually, Jorge, the “Magic Negro” terminology was popularized by David Ehrenstein, a well-known gay leftist, and quoted before that by Spike Lee.
Meanwhile, as to Link’s posting: you got exactly for what you paid. It’s not our fault you didn’t read the label first.
posted by dalea on
Jerry Brown, the Attorney General of California, has put his office officially behind the law suit. So we may get better filings.
posted by Bobby on
Thanks North Dallas for reminding everyone where “magical negro” came from. Everyone should click on the link he provided and read the article.
Or you can check this wikipedea link
http://en.wikipedia.org/wiki/Magical_Negro
Fregan, you wrote:
“You use the word hate 6 times in your post. I know John Aravosis is a liberal but he’s also intemperate.”
—I use that word because he hates all those things I mentioned.
“His anger toward Obama seems to inspire his less thoughtful commenters to get carried away and the result is meaningless blather.”
—I don’t think his anger is towards Obama but towards Obama’s policies and actions. You have to understand, liberals and leftists had a lot of hope in Obama, he was supposed to be a politically correct socialist messiah who was going to save this country from the horrors of Bush.
So how are liberals going to feel when the president uses the same arguments lawyers of the Bush administration used against same-sex marriage?
You see, this is why I never bought into the Obama myth, I always new he was a shady Chicago-style politician with a gift for gab and the ability to inspire. Or as Ehrenstein put it
“Like a comic-book superhero, Obama is there to help, out of the sheer goodness of a heart we need not know or understand. For as with all Magic Negroes, the less real he seems, the more desirable he becomes. If he were real, white America couldn’t project all its fantasies of curative black benevolence on him.”
http://www.latimes.com/news/opinion/la-oe-ehrenstein19mar19,0,5335087.story
John Aravosis is of course white and sooner or later he will be accused of racism. Talk about poetic justice, the man who accuses republicans and conservatives of being racist has to take the same medicine my comrades have been taking for years.
posted by Jorge on
You have to understand, liberals and leftists had a lot of hope in Obama, he was supposed to be a politically correct socialist messiah who was going to save this country from the horrors of Bush.
He is. That’s the problem. Politically correct socialist messiash saviors are quite capable of sweeping gays under the rug. Which is why it’s not in our best interests to be partisan or ideological.
posted by jpeckjr on
The argument on standing could have been made without insulting gay and lesbian people. I myself hope the case is dismissed as I think it is unwise to challenge DOMA in the courts before any significant effort is made to repeal it in Congress.
Thank you, David, for citing the Minnesota case, a seldom remembered ruling that is a lesson in timing. Timing is not about doing nothing forever. Timing is about choosing when well.
The time has come for Mr. Obama to make some bolder, more substantive effort on LGBT concerns. On DADT, for example, he could use his stop-loss authority as Commander in Chief to suspend DADT discharges. That would be substantive. It would be substantive to withdraw this brief and order it re-drafted to remove the insulting language that has no basis in legal principle. A presidential proclamation on Pride Month is not substantive, and the one he issued spends entirely too much time telling us what he’s said about how nice gay people are.
I have emailed the White House to express my disapproval of this brief. Have you?