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#obamafail

(OK, I know this isn't twitter, but I like this hashtag-fail construct)

So, if you haven't heard yet, the DOJ has filed its brief defending DOMA in Smelt v the United States of America.

There's been a lot of screaming about it, and for good reason. It's a horrible brief.

The Justice Department claims it has to defend the law, but that's overstatement at best.

Andrew Sullivan points out that the brief was written and submitted by a Bush-administration hold-over recognized by Alberto Gonzalez for his defense of the Partial Birth Abortion Ban Act.

So, yeah.

I would have preferred the administration to decide that there were aspects of the law that were unconstitutional and choose to not defend it on those grounds.

I would have preferred the administration had already started on the legislative action to repeal DOMA that was promised during the campaign.

But, frankly, at the moment, I would have been satisfied if the Justice Department had maybe reviewed the brief before it was submitted, and not submitted such an inflammatory brief.

In the end, though, this may be a snow job on all of us: what if the Obama administration picked an attorney they knew would submit the most repugnant defense of the law possible to set up the defense to lose? It would be consistent with the Obama that the conservative pundits keep painting, and in some ways the meandering brief is practically a gift to the plaintiffs' attorney.

Comments

( 7 comments — Leave a comment )
madoc62
Jun. 13th, 2009 04:17 pm (UTC)
Andy,

Why the surprise?

During the campaign Obama made it clear that he did _NOT_ support gay marriage. Explicitly clear. Emphatically clear.

Oh, he dressed it up in softly spoken clearness but, ultimately, his position is no different than the Mormons who voted for Prop 8 and no different from all the blacks who voted for Prop 8 as well.

This is what comes from living on the plantation Andy.

Obama and the rest of the Democratic Party elite knows this. They know it to their core. Gays and lesbians are but a constituency without any options and are thus available for constant exploitation with little need for anything in return. Oh sure, the Democrats will occassionally throw the gay community some worthless - and politically cost-free - bone every once and a while.

But do anything which counts? Anything which has a political risk?

Not a chance.

This latest bit from Obama is but more proof of that.

And that, Andy, is change we can all believe in.

Yes, we can!

Madoc
bovil
Jun. 13th, 2009 11:15 pm (UTC)

Let's take a look at this from a few angles...

Basic Rhetoric:

You need to start listening to what Obama has said and read what he's written, rather than just accepting what people tell you.

Here's a nice video montage of Obama campaign speech on civil unions. Yeah, it's not the same thing, but it's a starting point.

There'also this quote (and others like it) from Obama's letters and articles: "Unlike Senator Clinton, I support the complete repeal of the Defense of Marriage Act – a position I have held since before arriving in the U.S. Senate."

So, rhetorically, he's either walking the "If you don't believe in abortion, don't have one" line or he's a hypocrite. Don't worry, I already know what conclusion you've drawn.

Action to this point

He's not living up to the "fierce advocate" claim. No argument there. But he's also better than his predecessor.

The Obama administration has started their term with gay and lesbian appointees (previous administrations have only nominated gay and lesbian appointees later in their terms). The Matthew Shepard act is moving through Congress. The State Department is enacting new policies that recognize domestic partnerships. things are happening.

The administration has not carried through on Obama's promise to repeal "don't ask-don't tell" or DOMA. On the other hand, we're only 5 months into a 4-year term. I may not be happy that these promises aren't on the front-burner, but I remember you advocating waiting until the time is right for social progress, so you're not in a good position to argue about speed.

The DOMA brief:

I've been reading law blogs, and the legal eagles (except for the ones at Americablog) seem to agree that, at this point in the proceedings, the DOJ has to defend the law. This is true until they lose the case, and a court declares a law unconstitutional. Then, if they administration agrees with the court's decision, the DOJ can drop out of the appeals process.

Thus, the argument has been made that defending DOMA is satisfying Obama's promise to restore the rule of law. Counter-arguments have been made asking why on this issue and why not on the torture issue (where the administration seems to be happy with the Numemberg Mai Lai defense and not prosecuting the individuals who engaged in torture, only the people who gave the orders). While I agree with the assertion that the administration is taking the easy way out on the torture prosecutions, two wrongs don't make a right. It's a straw-man argument.

Understanding that, yes, at this point, the DOJ does have to defend the law, the complaint transfers to the brief itself. The motion to dismiss is appropriate, but the contents are at issue. Several lawyers have commented that it's a meandering brief that throws the kitchen sink at the case rather than making a coherent argument, although others have pointed out that this is standard operating procedure in a motion to dismiss.

The process is ugly and messy, but it's our government working the way it was designed, even if I don't like the details in this instance.

What I'm concerned about in this brief is how it was, as one commentator described it, "larded up" with anti-gay rhetoric. There are a number of arguments in this brief that shouldn't have cleared any review process (drawing a legal parallel between denying same-sex marriage and outlawing incest and child-rape) and a number of arguments right out of the Republican National Committee playbook (same-sex marriage would be too expensive to the federal government).



Edited at 2009-06-13 11:36 pm (UTC)
madoc62
Jun. 14th, 2009 12:02 am (UTC)
Andy,

Rhetoric and campaign promises aside, does President Obama support gay marriage?

The answer, obviously, is no, he does not.

Obama's position is, in fact, quite similar to that held by a number of Prop 8 _SUPPORTERS_ and yet, the gay community has come out unequivacably in damnation of such "half measures" and "second class citizenship."

So why then, is it unacceptable for Prop 8 supporters yet excusable for Obama?

Andy, we got played. Again. At least the Republicans are upfront about their opposition to "the gay agenda." The Democrats - including Obama - dress up their opposition and weigh it down with sweet sounding words.

In the end, they're no different.

One thing I find unseemly about all this is the desperate tone of the gay folks apologizing for Obama's failures. If it were a Republican stating the same things, if it were a Republican administration making the same case, then the gay community would be all over that like nothing else.

Ah, but it's not a Republican. Instead, it's The One! And The One is never wrong!

Codependancy is an ugly thing in personal relationships and even more so for an entire community. And that's exactly where the gay community has once again found itself at the hands of the Democratic politicians.

If Obama's DOJ was charged with "defending the law" but doing so with the intent of supporting gay marriage then that defense would be a tame and half-hearted thing. It would NOT be the strident and vehement thing that it actually is.

We got played Andy. Again. By the Democrats. Again.

Madoc
bovil
Jun. 14th, 2009 12:49 am (UTC)
One thing I find unseemly about all this is the desperate tone of the gay folks apologizing for Obama's failures. If it were a Republican stating the same things, if it were a Republican administration making the same case, then the gay community would be all over that like nothing else.

and

Ah, but it's not a Republican. Instead, it's The One! And The One is never wrong!

So you haven't seen all the angry posts and news about this? Oh, wait, it's not an angry mob with pitchforks, so all that heated debate must just be covering up for the administration, rather than a push to the administration to tell us what the hell is going on.

If Obama's DOJ was charged with "defending the law" but doing so with the intent of supporting gay marriage then that defense would be a tame and half-hearted thing. It would NOT be the strident and vehement thing that it actually is.

Doing a half-assed job is legal malpractice. It would open up all sorts of appeal avenues in the case, particularly if the half-assed defense lost. It would result in the lawyers presenting the defense getting sanctioned and/or fired. It would not settle the issue.

From a lawyer (who advocates against DOMA) on another community:
If you’ve decided you’re going to write a brief supporting DOMA, these are the arguments you have to make: (a) full faith and credit allows states to have public policy exemptions and not recognize public acts of other states which are in violation of their public policy [and pretty much the *only* examples of that in the case law with respect to marriage are interracial marriages and incest]; (b) DOMA doesn’t discriminate against gay people; (c) even if it did, the correct level of scrutiny is rational basis review; (d) even if it isn’t, the government has a compelling state interest (and saving money is the only way to easily get there). A lawyer who doesn’t make those arguments just isn’t doing his job.


I still think it's a crap brief, demeaning and dismissive. Then again, that's entirely in character with the act it's defending.
madoc62
Jun. 14th, 2009 01:48 am (UTC)
Andy,

Obama stated he opposed gay marriage back when he was but a mere candidate. Now that he's the Prez - surprise! - he opposes gay marriage and he's directed his Department of Justice to see that the Federal governement will _NOT_ recognize gay marriage either.

His opposition was clearly stated then and only now - now that he's putting it into action - are gays and lesbians waking up to this fact?

Worse, gays and lesbians - even as they're criticizing Obama's decision - are finding ways to apologize for it or explain it away. Andy, your analysis here that this might be a "ploy" to make it easier for the plaintiff's attorney is just such an apologist's defense. Andy, if it were Bush who directed his DOJ attorney's to issue such a brief you'd be calling for blood. Why not now?

Oh, right, Obama has also _promised_ other sweet sounding things back when he was hustling for your vote. Got it. Right.

Madoc
bovil
Jun. 14th, 2009 01:55 am (UTC)
Andy, your analysis here that this might be a "ploy" to make it easier for the plaintiff's attorney is just such an apologist's defense.

Nope, it's a smart-ass comment.

Obama's (5 month) record is mixed but better than Bush's, Clinton's and GHW Bush's. It's better than what McCain promised (and look at his recent interview where he said that he didn't oppose "don't ask-don't tell" but would have studied the issue had he been elected).
madoc62
Jun. 14th, 2009 02:01 am (UTC)
Andy,

Yup, Obama's only been on the job for but a few months so there's much he could eventually do.

Or no.

Given the guy's statements prior to his election and his actions thus far he, at best, has a lot of improvements to make.

I don't think he will as I think we're seeing the _real_ Obama and not just the empty suit who spoke hollow words in order to get elected.

Madoc
( 7 comments — Leave a comment )

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