I agree with Stephen Miller that’s it’s fine for HRC to go all nuclear about the House defending DOMA (or, as we’ve tried to clarify before on this site, Section 3 of DOMA, and only Section 3). Fish gotta swim, gay rights groups gotta complain about people who disagree with them. It’s the order of nature.
I’m not sure what HRC would have had Speaker Boehner do, though. If the Justice Department won’t defend the law, and at least one house of Congress still thinks it’s worth defending, why shouldn’t they exercise the political prerogative of the majority and pick up this sad, tattered banner? It seems clear to me Boehner would much rather be doing something else, but even our worst criminals are entitled to a decent defense, and there’s a firm out there willing to provide it, and get compensated. Frankly, I just hope they know what they’re in for. That brief is going to have to walk across the tightrope Boehner, himself, keeps wobbling on, pulled taut from one end by the now pretty openly anti-gay end of the GOP spectrum, and from the other side, tugged by the responsible GOP wing that wants their party back from the party that keeps yelling it wants America back. I can’t think of a court brief I’ve more looked forward to reading, and you can bet both of Boehner’s contending sides will be keeping a keen eye on every word, as well.
Frankly, I wish there were a full-throated defense of DOMA to be had. It’s always best, and most gratifying, to win a pitched battle against a worthy opponent. It doesn’t do anyone any honor to defeat a much weaker adversary, and winning by default is the least honorable kind of victory. When Prince Hal praises the dying Hotspur, he’s also claiming something for himself in having defeated someone who was such a worthy challenger.
What we’ve learned after the Prop. 8 trial is that there are few highly respected people left in this country who will defend DOMA on its merits. The patchwork of prejudice, misunderstanding, fear and sheer political cowardice that led to its passage has frayed, and while there’s enough left of that coalition that a party desperate enough can appeal to, the times, they have a-changed, and are continuing a-changing.
So I’m not expecting a full-throated, or even croaking defense of DOMA, but rather a timid tiptoe through the caselaw that avoids as many political minefields as possible. Speaker Boehner will be paying dearly for exactly that, making no one happy, and hopefully we’ll be rid of this troublesome piece of DOMA soon. There won’t be much honor in winning this case against a waning, whining assailant that once commanded a majority. But we will get one more piece of the equality we’re entitled to. I’ll take that.
24 Comments for “The DOMA Battle (Link’s View)”
posted by Jorge on
Well, that’s what precedent and building movements do, they knock out a lot of teeth.
As someone who sometimes needs to go to court for his jobs, it’s always fun to see the boss ask for something ridiculous (“because some judges will grant it,” “because I know the defendant is going to be an IDIOT on the stand,” “we did our job, we covered our ass!”), the judge gives the attorney a WTF look, the attorney tells us “We lost”, her boss says “Should we have lost?” “Yes.”
I don’t think that happens so much in the big leagues.
posted by KipEsquire on
“If the Justice Department won’t defend the law, and at least one house of Congress still thinks it’s worth defending, why shouldn’t they exercise the political prerogative of the majority and pick up this sad, tattered banner?”
Um, maybe because there’s absolutely nothing in the Constitution authorizing it?
Or is belief in separation of powers now just vacuous HRC-spawned blunderbuss?
posted by Houndentenor on
What else was Boehner to do? Seriously?
Well what did other Speakers do when other Departments of Justice stopped wasting resources defending a law that was unconstitutional?
Boehner is pandering to the social conservatives, not upholding a doomed law. Don’t pretend he’s only doing his job. This is nowhere in his job description.
posted by Wilberforce on
Thank you Kip and Hound,
You made the points. I got sidetracked at the thought of a smashing victory for us led by our legal team in CA. But you’re both so right. As far as I know, the Constitution doesn’t authorize congress for this, and Boehner has more important jobs to do.
But again, the writers on this site argue nonstop in favor of everything the rupublican party does, while dissing gay rights groups that ‘complain.’ One might say that HRC is defending our rights, but ‘complain’ has a nicely insulting tone reserved for anything on the left.
posted by Jorge on
I doubt the Constitution forbids it either. An easy way to tell is whether the courts decide Congress does not have standing in the lawsuit. (What *is* the House doing, anyway? Filing a brief or moving in to become a defendant?)
I would think, rather, that the principle of checks and balances supports the idea. It doesn’t make a lot of sense for only one person to decide something like dropping a defense against a law that is challenged in court. There’s a lot of hubris in that, no matter what the analysis is, and there is a lot of politics in this particular decision.
posted by Curt on
I agree with the HRC on this. DOMA needs to be attacked on multiple fronts at the same time. Putting pressure on Boehner for the expenditure and the law firm makes sense to me. The repeal of DADT probably would not have happened unless there was pressure from the courts, legislature, public and the military at the same time.
posted by BobN on
Of course HRC should complain about the defense of DOMA. They’re a lobbying group, for god’s sake. That’s what lobbying groups DO.
It seems clear to me Boehner would much rather be doing something else
Nonsense. Fighting gays riles the base. Your view that there’s a substantial wing of the GOP that dreads a win on DOMA is ridiculous. Look at the state legislatures. Even the Cal. GOP votes anti-gay whenever they have the chance. I’m sure some dread being publicly associated with the Neanderthal (apologies to the species) bigots who will be trotted out as witnesses, and that’s why the cases will NOT be televised.
posted by Wilberforce on
BobN, right again. As if the GOP has not used us as a wedge issue since Ronald Reagan. This site is fantasy land.
But the party is out of control on multiple fronts. The hick base are bad enough. Their business allies are off the deep end, with the union busting, atacks on SS and Medicaire, massive layoffs, etc… Still the featured writers here spin things to conceal everything. It’s grotesque.
How I miss the days before RR, before the multinationals took over, when old money Republicans were still loyal to this country.
posted by another steve on
BobN and Wilburforce, get a room!
Of course HRC should complain about the defense of DOMA. They’re a lobbying group, for god’s sake. That’s what lobbying groups DO.
Of course, there is effective lobbying and the there is tantrum throwing to fire up the fundraising base. The NRA does effective lobbying, HRC does the latter.
posted by BobN on
Well, if the NRA was dwarfed by the likes of the AFA and FOTF, I suspect they’d be tantrum-throwing as well.
posted by Pender on
“It’s always best, and most gratifying, to win a pitched battle against a worthy opponent.”
God damn it, this is not about gratification or the thrill of a hard battle fought and won. It is about GETTING EQUALITY, by hook or by crook. I don’t care whether or how future minstrels sing of the conquest, or whether our victory lights up the night sky like Brown v. Board. All I want is for me and my fiance and our future children to be the legal equals of every other family under the law. Taking our eyes off of the prize — and focusing them on process-oriented fantasies about electoral legitimacy, the aesthetics of the triumph, or the like — is detrimental to this ultimate end and should be fought tooth and nail by folks who actually care about realizing the constitutional promise of equality. It’s not a game.
posted by BillyFLA on
Unfortunately I’m not as sanguine as the writer of this article that DOMA will be overturned easily in court. We only need remember what the 5 Republican justices did in Bush v. Gore 2000. Not having a leg to stand on with their opinion they were forced to go so far as to say that this case should carry no weight as a precedent! Don’t kid yourself as to how tortured the logic will be by the Republican majority when this case makes it to the Supreme Court. As for the snarky comment about the HRC complaining about the injustice of DOMA and Boener’s support of it, gimme a break. I agree with comments above that point out that the public needs all the educating they can get as to why DOMA is abhorrent. Once the public is well in favor of killing DOMA, the courts and politicians will come around. DOMA has been around for 15 years. If it were clearly such a slam-dunk to prove it unconstitutional, it would have been done by now. And as it is, it may be a long time before the Supreme Court even deigns to consider the matter.
posted by Jorge on
We only need remember what the 5 Republican justices did in Bush v. Gore 2000.
They did their job. And if the courts hearing this case do theirs, their ruling will have nothing to do with whether or not the public is in favor of DOMA.
posted by Houndentenor on
I’m more than a little apprehensive about taking this to SCOTUS. There are four justices that will vote against gays no matter what arguments are presented. It looks like our fate is in the hands of one judge (Kennedy) and I find that an uncomfortable position.
posted by Tim on
I’d like to see the Supreme Court uphold DOMA and permanent inequality for gays, I really would. There would be RIOTS and mass protest on a gigantic scale. And if there weren’t, then we wouldn’t deserve our rights in the first place.
posted by North Dallas Thirty on
Good. Make it obvious that gays and lesbians are irrational, violent people who intend to use riots, massive property destruction, and murder if they do not get their way.
People already know that gays and lesbians have no respect for the rule of law. Now they can see that gays and lesbians have no qualms about hurting and killing them, their families, and their property and businesses, and in fact are openly advocating for and doing so.
No surprise — as the unions are showing, violence and death threats are what liberals and the Obama Party do. But for once I’m glad to see the gay and lesbian community being honest about it’s belief that those who don’t give it what it wants are targets for destruction and murder.
posted by Doug on
They did a job on the American people and did so so nakedly that the ruling cannot be used as precedent. Now that shows real courage.
posted by Wilberforce on
Bottom line: Boehner has been given another chance to use us as a wedge issue. Why? Because the mainstream gay movement chose to go after marraige, instead of read the polls and score nonstop wins on civil unions.
The queer mainstream have been shooting themselves in the foots for thirty years. When they cause a backlash that hurts our allies, it doesn’t even register.
Meanwhile, on the popular gay blogs, they’re trashing liberal christians nonstop, totally oblivious that these are some of the best allies we have.
posted by Tim on
There’s a reason why civil unions score nonstop wins. Because they suck for gays, are state by state, and legitimize inequality. Marriage is the mainstream. It will be law, and we will win. And who gives a crap what some liberal gays think? They don’t define the issue, they are only one part of it.
posted by BobN on
The queer mainstream have been shooting themselves in the foots for thirty years.
Where do you think civil unions came from, unicorns?
posted by Wilberforce on
Of course we’ve won some battles. That doesn’t mean that massive resources and time have not been wasted on bad strategy.
posted by BobN on
We’re the fasted advancing civil rights movement in history.
You’d think we’d stop second-guessing ourselves at some point.
posted by Hunter on
If I’m not mistaken, there is statutory authority for intervention by Congress in this case. As for why the Republicans are defending DOMA when they’ve seldom intervened in other similar cases, it is, indeed, pure partisanship, but I think reading it as an appeal to the anti-gay base is only part of the picture. Remember, this is the Republican party that has vowed to oppose everything that Obama initiates.
So Boehner’s getting double bang for the buck.
posted by Houndentenor on
This just in: Clement firm drops DOMA case:
http://www.politico.com/blogs/bensmith/0411/Clement_firm_drops_DOMA_case.html?showall