Yesterday saw a lot of passionate rhetoric about the Obama administration's brief in the Smelt case, most of it justified.
But a reader at Andrew Sullivan's site provides some clarity that may help to expose the real problem. A DOJ career lawyer (apparently) chastises those who have been criticizing the brief for being written by a "Bush holdover." The vast majority of employees at the DOJ, as with most government entities in the U.S., are civil servants protected from the political winds that blow through the top of their organizations. In that sense, every civil servant at DOJ is a Bush (and perhaps Clinton, and perhaps Bush I) holdover.
In that correct, small criticism lies something pretty profound that I think can help us understand what most likely did happen here. It's not as benign as Andrew's correspondent says, but it's also not as diabolical or cynical as many of us originally might have thought.
The brief was almost certainly written and edited by a number of civil service lawyers, with some review by top level political appointees. Those political appointees - up to and including both Attorney General Eric Holder and President Obama, himself - are the ones who are ultimately responsible for every word.
The civil service lawyers - one of whom proudly boasts of being a Mormon on his webpage - most certainly drafted the brief, and the tone of the implicitly insulting language and arguments they used was virtually invisible to them. They were required to defend a statute, and this is what they came up with.
This can explain the silently slanderous spin of the repeated reference to same-sex marriage as a "form" of marriage. This puts linguistic air quotes around "marriage," the way the Washington Times used to do. It walls off same-sex marriage from what some heterosexuals view as "real" marriage. (See how the air quotes work?)
More insidiously, the argument that DOMA is rational because it saves the government money is something no one who has thought seriously about gay equality could even remotely imagine, much less articulate. The argument reduces a claim of civil equality to one of crass financial pleading.
And, ultimately, the fundamental position of the brief, as many have noted, is that no one is being discriminated against here because, just like their heterosexual counterparts, homosexuals have every right to marry someone of the opposite sex. This is the pro forma "equality" that is laughable today to all but the most rigid anti-gay zealots.
But how could this derision not have been noticed by the President's men? First, and most obviously, I can only imagine that no lesbian or gay men ever set eyes on this brief. Perhaps I am wrong, but I honestly can't see how any self-respecting homosexual in 2009 could possibly think this brief was acceptable. While California's Attorney General Jerry Brown has had to both defend and challenge anti-gay laws, his office has the grace and simple common sense to make sure the briefs are reviewed, if not drafted in the first place, by openly gay attorneys.
There is something deeper here, though. Obama is comfortable with the cliché political rhetoric of gay equality, but this brief shows his understanding doesn't go a centimeter deeper. Or (most generously) that his Attorney General knows only the words and not the tune. To someone who understands gay equality as little more than a set of slogans and bromides, this brief might not have looked particularly offensive.
That, at least, is the most generous understanding I am willing to indulge - that the brief was written and/or edited by civil servants with an anti-gay inclination, and reviewed by political staff who know no more about gay equality than what they read on the President's website.
The ball is now in the President's court. He owes us an apology - and not one of words, but one of action. Signing a hate crimes bill won't do it. Nor will an additional imprecation to Congress to do something about DOMA. It is he who was elected President with the explicit promise that gay equality would be on his agenda. What Presidents do is lead, and after this anything less than the kind of leadership he shows on other issues will be confirmation of a betrayal of those like me who voted for him in good faith.
7 Comments for “Clueless”
posted by Jorge on
More insidiously, the argument that DOMA is rational because it saves the government money is something no one who has thought seriously about gay equality could even remotely imagine, much less articulate. The argument reduces a claim of civil equality to one of crass financial pleading.
Well, it is.
In light of Lawrence v. Texas, gay relationships are not illegal in any state, and under the First Amendment, there is nothing preventing us from entering into same sex marriages. Under California state law, if I understand correctly, civil unions grant the exact same state (not federal) privileges as marriages. With these freedoms intact, what gay marriage per se really boils down to nothing more than a list of federal and state entitlements–the money calculation. Not so much in a state that doesn’t have civil unions.
The sooner we get out of this line of reasoning that the US Constitution grants a fundamental right for us to have the government treat an eight letter word as some sort of sacred cow, the better off we’ll be.
To take your post more directly, the issue is not about whether the Defense of Marriage Act, or any legal defense of it, is an exercise in promoting gay equality. DOMA does not promote gay equality, nor did its authors have much of an interest in promoting or even engaging the question of gay equality. Duh!
The issue is whether DOMA is constitutional. If DOMA can actually reasonably be argued to save money (whether or not it’s actually true), then, using the very low standards of the rational basis test, that’s a valid purpose of the law, regardless of how insulting to us that might be. Whether or not a law or a legal defense is insulting to us is not what makes a law constitutional or not. The question is: is gay marriage a bigger, more fundamental right, or is it on the same plane as money calculations?
While California?s Attorney General Jerry Brown has had to both defend and challenge anti-gay laws, his office has the grace and simple common sense to make sure the briefs are reviewed, if not drafted in the first place, by openly gay attorneys.
Why is that even relevant? Are you suggesting that a gay person, “with the richness of her experiences” is more likely to come to a better decision than a straight attorney who had not had the benefit of that experience? No, no, no! The law is the law. Diversity is a strength, but exclusivity is a weakness.
posted by Bobby on
“The vast majority of employees at the DOJ, as with most government entities in the U.S., are civil servants protected from the political winds that blow through the top of their organizations. ”
—Good excuse, but I don’t buy it. President Obama has no trouble banning waterboarding, closing Guantanamo, and offering Palau $200 million to house a bunch of Chinese muslim. Which means B. Hussein Obama does pay attention when he wants to.
posted by David Link on
Jorge, you make some good points, and as a practical matter I agree with you that legally equivalent civil unions or domestic partnerships are an acceptable political compromise. And no one could argue with you that DOMA was not intended to, nor did it, promote gay equality.
But that last statement is the important one. The rational basis standard you articulate for the equal protection clause is the “toothless” one that has been criticized by many. On the theory you propose, that saving the government money is all that is necessary for a statute to pass constitutional equal protection muster, the government could refuse to recognize those state marriages contracted on a Tuesday because, that, too, would save money — and a lot more than recognizing state-recognized gay relationships today would.
That’s clearly not a realistic hypothetical, but it illustrates why the famous Footnote Four in U.S. v. Carolene Products is such an appropriate touchstone for equal protection. Sheer economic discrimination, by itself, does not, and should not be the basis for an equal protection claim. But if it is directed at some “discrete and insular minority” of citizens who meet certain criteria that demonstrate the political process is distorted for their particular claims, then *something* more than sheer rationality has to be used. That does not need to be as high a standard as strict scrutiny, in my view, and that binary constitutional framework has always had deep problems, in my mind. More recent attempts at “rational basis with teeth” which is quite as supine as the traditional variety, make some sense, I think.
I’m suspicious of the Kennedy-esque “animus” argument from Romer v. Evans, mostly because it is so politically tone deaf. It is not necessary to insult people like this, and it’s hard for any court to avoid being characterized that way if it rules that the majority voted the way it did simply because they didn’t like the minority at issue. I think you might conflate my comments with that sort of an argument, and that’s not at all what I intend. Certainly, the *brief* here is insulting in any number of ways. But that’s not the basis for any legal argument I make here, since I’m primarily focused on the political backhand we received. I reluctantly support the brief’s bottom line, most particularly because this case is brought by such hapless plaintiffs who lack much in the way of political guidance.
But two wrongs don’t make a right. Just because their case isn’t ideal doesn’t mean the administration — or, as I believe, a civil servant with an agenda and no superiors savvy enough to spot it — can or should be making arguments in public that necessarily imply we are really just a bunch of heterosexuals gone wrong. Perhaps I’m being too sensitive here, but that argument was absurd when it was the cultural norm, and it’s flat-out insulting in 2009.
posted by Jorge on
On the theory you propose, that saving the government money is all that is necessary for a statute to pass constitutional equal protection muster, the government could refuse to recognize those state marriages contracted on a Tuesday because, that, too, would save money — and a lot more than recognizing state-recognized gay relationships today would.
I don’t see anything unconstitutional about that.
The whole point of arguing against using the rational basis standard is to argue that the right to marry isn’t inconsequential at all. So that’s an important battlefield. And it’s the only battlefield worth fighting on.
Because once you’re stuck on rational basis–which obviously anyone who defends DOMA is going to try to push–same sex marriage loses, 100%. I don’t see it as at all insideous or reflecting of a personal agenda to make unflattering statements or comparisons about gay marriage if it’s within rational basis. I see it as pure machiavelianism. You do what it takes as a laywer to keep the law on the books whether or not you personally agree with the argument. I see it as an objective selection of the arguments that one things are most likely to prevail (as they have in prior cases), not bias. Most non-lawyers learn to do that kind of thing in debate clubs.
Since I said that, I suppose I’d better consider whether I think the same thing about some of the pro-gay marriage legal arguments I *don’t* agree with.
Well, I should think so. When we’re fighting over legal decisions, we’re fighting over the judges and to a lesser extent the “radical” plantiffs and defendants. Not the lawyers.
posted by PeeJ on
“—Good excuse, but I don’t buy it. President Obama has no trouble banning waterboarding, closing Guantanamo, and offering Palau $200 million to house a bunch of Chinese muslim.”
No, no trouble at all. Gitmo is already shuttered, because Obama issued an imperial dictat telling congress to STFU and give me the frickin money.
It was not trouble because he only had to somehow find – in a tight budget – 200 mil to bribe a two bit country into taking a handful of people who were wrongfully imprisoned for many years. That was easy as pie!
Banning waterboarding was the only one of the things you cite that could, in any way, be construed as “easy.” And even it was politically costly.
Lower your expectations to the reality level and you won’t get so upset. It’ll be good for your health – both mental and physical.
posted by Jorge on
Maybe so, but it’d be nice if Obama sweated for us for a change.
posted by Bobby on
“It was not trouble because he only had to somehow find – in a tight budget – 200 mil to bribe a two bit country into taking a handful of people who were wrongfully imprisoned for many years. That was easy as pie!”
—So because they where wrongly imprisoned we have to spend $200 million dollars? They’re wanted by China, let them go home.
“Banning waterboarding was the only one of the things you cite that could, in any way, be construed as “easy.” And even it was politically costly.”
—Banning waterboarding (which was only used 3 times) endangers our national security. Obama would rather see innocent people die than guilty people “tortured.”
“Lower your expectations to the reality level and you won’t get so upset. It’ll be good for your health – both mental and physical.”
—I’ll tell you this, I can’t watch Glen Beck and Sean Hannitti anymore, it’s just too upsetting all the evil things Obama is doing and how the liberal media is backing him up. Here’s the latest outrage, ABC is going to have a one hour infomercial on Obama and they refused to accept advertising from an opposition group. In other words, it’s going to be a lovefest filled with journalists that love Obama asking all kinds of loving questions. O’Reilly is right, journalism is dead.