Former Bill Clinton staffer Richard Socarides (pictured) has just penned a fine essay on John Aravosis' Americablog, which explains why President Obama did not need to have his Justice Department prepare a highly-homophobic brief in defense of DOMA.
For those who may not be aware, the DOMA defense from Obama's team included language that compared gay marriage to incest and said the government could not afford the cost it would allegedly incur if gays were allowed to marry. For those who would like to follow that story, Americablog is as good a place as any for comprehensive coverage.
Socarides, ironically enough, is the son of legendary homophobe Charles Socarides, who championed the lie that gays could be cured by therapy.
There seems to be a concerted effort from the White House to put out talking points, suggesting that Obama's DOJ had no choice but to vigorously defend DOMA. Some have even gone so far as to trash Mr. Aravosis' blog and accuse him of stirring up hysteria and over-reaction
In his blog post, the younger Socarides wrote:
I was...troubled by the administration’s explanation that they had no choice but to defend the law. As an attorney and as someone who was directly involved in giving advice on such matters to another president (as a Special Assistant for civil rights to President Bill Clinton), I know that this is untrue.Socarides continues:
I know and accept the fact that one of the Department of Justice's roles is to (generally) defend the law against constitutional attack. But not in all cases, certainly not in this case – and not in this way. To defend this brief is to defend the indefensible.Further:
From my experience, in a case where, as here, there are important political and social issues at stake, the president’s relationship with the Justice Department should work like this: The president makes a policy decision first and then the very talented DOJ lawyers figure out how to apply it to actual cases. If the lawyers cannot figure out how to defend a statute and stay consistent with the president’s policy decision, the policy decision should always win out.
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). In fact, many legal experts believe that in this particular case none of the issues going to the merits of whether or not DOMA is constitutional needed to be addressed to get the case thrown out. The administration’s lawyers could have simply argued, for example, that the plaintiff’s had no standing. 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.Again, I recommend your visiting Americablog to read the full essay and read the ongoing coverage.
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. Someone on a staff level has to believe strongly that it is the right thing to, not defending DOMA, and be willing to push hard. But it is doable. It does happen. 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).
I know, during Pride month, various glbt groups ask for your donations and support. This year, to make sure your dollars are actually counting for something, ask them what their response to this DOJ filing was. I also would highly recommend on witholding all future dollars and support to both the Presidend and the entire Democratic Party until we actually see that they see gay people as a constituency that actually matters.
Up to now, all Obama has done is throw gays under the bus. And nobody is holding him accountable.