Hyperventilating Over Smelt

Many gay Americans have been starting to wonder when our "fierce advocate" in the White House is going to start delivering the change that we can believe in. And today, salt was rubbed in the wound of Obama's inaction by the Justice Dept filing a brief in a federal case defending the Defense of Marriage Act (DOMA). And in a painful irony, this comes not only during Pride month of the 40th anniversary of Stonewall, but it comes on the anniversary of the Loving v. Virginia decision ending miscenegation laws in the US. I first learned of this from Andrew Sullivan's blog (my first read nearly every morning), who linked to John Aravosis, and based on his diatribe, I was outraged. The brief was characterized as egregious anti-gay rhetoric and religious right arguments, comparing gay marriage to incest, and more.

Now this evening, I've had a chance to read what a lot of bloggers have had to say about it, but more usefully, I had a chance to read the actual DOJ brief, and I'm a lot more sanguine about it than others. Some of my observations, and reasons for calming down and taking a deep breath.

First, the case itself, formally known as Smelt v. US, is not the recently-filed case against Prop 8 that Olson and Boies are representing. This case comes from a gay couple in Orange County who have, against the advice of pretty much every gay advocacy group, been filing federal marriage-related challenges for the last few years. In fact, several gay advocacy groups have filed briefs against Smelt's cases, because they think they are very ill-advised, likely to lose, and likely to leave very damaging precedents on the books. They don't seem to have a very good lawyer representing them, and from a legal standpoint, their particular case is weak and overly broad in its claims and redress sought. While I don't begrudge anyone the right to go to court and press their claims, it is in the best interest of our larger cause if this case would just go away.

Fortunately, that's very likely to happen. The first part of the DOJ brief argues some legal technicalities about jurisdiction and "standing", and those arguments seem to me to be fairly strong. A court will always consider these types of arguments first, before considering the "merits" of a case, and I predict this case will get tossed out on the technicalities, without the court even having to look at the merits.

Meanwhile, there is a much, much stronger and better advocated case being brought in Massachusetts challenging DOMA, and there is the Boies/Olson challenge against Prop 8.

As for the rest of the DOJ brief, I think much of it is legally sound, and I did not find the rhetoric nearly as "egregious" as I was lead to expect. This was definitely not a brief written by the likes of the Prop 8 proponents. They rightly pointed out the reasons why this case is on weak legal footing. For instance, this particular case is not about a right to marry, it is about a "right" to get certain federal benefits. In these sort of constitutional challenges, you always want to show that a fundamental right is implicated, or that a suspect classification is involved, or best, both. In this fact pattern, the fundamental right claim is hard to sustain. It's only the suspect classification prong where there's any traction to be had, and even that is an uphill battle against precedent.

The DOJ brief is weakest where it defends against the suspect classification charge, and it does make some dodgy claims, which have been rightly pounced on. "DOMA does not directly or substantially interfere with the ability of anyone, including homosexuals, to marry the individual of his or her choice. … DOMA merely clarifies that federal policy is to make certain benefits available only to those persons united in heterosexual marriage, as opposed to any other possible relationship defined by law, family, or affection." While this sounds very much like the "both gays and straights have an equal right to marry someone of the opposite sex" canard, it's not exactly saying that. It's also admitting very clearly that the classification is one of sexual orientation, which nicely sets up the argument as to whether that is a justifiable classification.

It makes the novel argument that through DOMA, Congress is maintaining "neutrality", such that citizens of some states are not forced to subsidize marriages that go against their public policy just because another state approves of those marriages. But this seems a little odd after an earlier part of the brief went into detail about how state marriage laws differ, and that can and should be tolerated. If this "neutrality" were to be taken seriously, then the federal government wouldn't recognize first-cousin marriages because that would force the people of Arizona, who are appalled by such things, to subsidize the first-cousin marriages of New Mexico. Likewise, the federal government wouldn't recognize the marriage of 16-year-olds in Indiana because it wouldn't be fair to New Jersey, who insists on age 18. (Alas, this "neutrality" is just the sort of nonsense that is allowed to pass the "rational basis" test, if that what's the court decides is appropriate to apply.)

The DOJ brief also cites Loving v. Virginia, but with a very bizarre reading of it. According to this brief, the decisive factor in Loving was that the Virginia statute was lobsided, in that it outlawed only whites from marrying other races. Thus, it clearly treated the races differently, whereas the "neutral" DOMA does not. On this reading of Loving, it seems that the Virginia miscegenation statute might have passed constitutional muster if it had prevented all races equally from intermarrying. (The DOJ attorney here is either being disingenuous, or gets poor marks for reading comprehension. I suggest he mark the anniversary of Loving v. Virginia by re-reading the opinion more carefully. While that was certainly part of the opinion, it was by no means all of it.)

There's been much discussion about whether Obama's DOJ should have chosen not to defend DOMA, but I'm not sure how I feel about that. Having the Justice Dept pick and choose which laws it defends seems awfully similar to Bush's "signing statements" that so many of us were (rightly) unhappy about. Especially if the constitutional issues are not completely clear cut. (In my amateur opinion, I think that while DOMA part 3 should be tossed on equal protection grounds, DOMA part 2 may well be constitutional.) I don't think Obama has ever actually said he believes DOMA is unconstitutional, he's said he believes it's bad policy and should be repealed. Now it would just make us all feel better if he would get on that.