For several days, I’ve been trying to write this post to explain. The first version was basically outraged anger. The next attempted to be more neutral. Now? I’m beyond disappointed.
This all started Friday (US time) when the Department of Justice (DoJ) filed a brief opposing a challenge to the federal Defense of Marriage Act (DOMA), filed by two gay men. The Administration defended their action, claiming that they were required to defend all laws against legal challenge, and to use all plausible arguments in doing so.
There are two huge problems with this: First, the DoJ absolutely does not always defend all laws, especially when they’re indefensible or clearly in conflict with presidential policy (Obama called DOMA “abhorrent”). But even accepting their claim, they didn’t have to use anti-gay arguments to do so, and that’s my focus here.
The challenge was flawed for many reasons, and legal experts say the argument against this case could simply have been, for example, that the plaintiffs lacked legal standing. As Richard Socarides, former Special Assistant to President Bill Clinton, put it, “There was no need to invoke legal theories that were not only offensive on their face, but which could put at risk future legal efforts on behalf of our civil rights.”
The Department of Justice brief argues that DOMA doesn’t deny gay and lesbian people any rights (though that was kind of the point of passing it), and says it’s a good law because denying gay and lesbian people their rights saves the federal government money, but, of course, we’re not denied any rights in the first place because we can always marry someone of the opposite sex to get those rights and benefits that we’re not being denied. Most offensive of all, the brief argues same-sex marriage is the legal equivalent of incestuous marriage or marriage to a child.
Worst legally, it declares DOMA a legitimate, constitutional law that doesn’t violate the equal protection or due process provisions of the US Constitution (even though it does). If this argument is accepted by the court, it will cut off all future constitutional challenges to the law, particularly because it argues gay people don’t have the same constitutional right to marry that heterosexuals have.
Similarly, the DoJ denies that Loving v Virginia is relevant. That landmark decision struck down laws banning interracial marriage—like President Obama’s own parents’. The DoJ brief, by the way, was filed on the 42nd anniversary of the Loving decision.
So, what happened? Is President Obama homophobic? Of course not. The problem seems to be that it never occurred to administration officials that this brief was homophobic, perfectly in-tune with the Bush/Cheney regime, and that it could easily make things worse for gay and lesbian Americans.
It’s profoundly disappointing that the administration of this president, of all people, couldn’t see that. Despite promising to be a “fierce advocate” for gay and lesbian Americans, so far President Obama has delivered nothing apart from a proclamation for Gay and Lesbian Pride. Filing this brief put the administration across a line—moving from doing nothing for us to arguably making things at least more hostile, if not potentially much worse.
And that’s the tragedy in this: While I still hope and expect that President Obama may yet accomplish many great things for the country, I’m far less optimistic that any of that “fierce advocacy” will actually happen. Up until now, I’ve argued that even with the lack of action on his promises to gay and lesbian Americans, on his worst day Obama was better than Bush/Cheney on their best. The DoJ brief challenges that assertion. It’s not the lack of action, it’s taking negative action.
One of the plaintiffs in the Loving case, Mildred Loving, said on the 40th anniversary of the ruling that validated her marriage:
Surrounded as I am now by wonderful children and grandchildren, not a day goes by that I don't think of Richard and our love, our right to marry, and how much it meant to me to have that freedom to marry the person precious to me, even if others thought he was the "wrong kind of person" for me to marry. I believe all Americans, no matter their race, no matter their sex, no matter their sexual orientation, should have that same freedom to marry. Government has no business imposing some people's religious beliefs over others. Especially if it denies people's civil rights.
I am still not a political person, but I am proud that Richard's and my name is on a court case that can help reinforce the love, the commitment, the fairness, and the family that so many people, black or white, young or old, gay or straight seek in life. I support the freedom to marry for all. That's what Loving, and loving, are all about.
I wish the morons who wrote that brief would reflect on Mrs. Loving’s words. And I deeply hope that the entire administration will keep in mind the president’s words: "Change will not come if we wait for some other person or some other time. We are the ones we've been waiting for. We are the change that we seek." We’re still waiting, Mr President.