Tuesday, June 16, 2009

Defending the Indefensible

The Department of Justice filed a brief last week in a case where the Defense of Marriage Act was being challenged by a gay couple. The Obama administration came down on the side of the law.

U.S. Department of Justice lawyers argued that the act — known informally as DOMA — is constitutional and contended that awarding federal marriage benefits to gays would infringe on the rights of taxpayers in the 30 states that specifically prohibit same-sex marriages.

“The president made very explicit and emphatic campaign promises that he opposes DOMA and would provide leadership calling on Congress to repeal it,” said Jennifer Pizer, marriage project director for Lambda Legal. “This brief is not consistent with that promise.”

Justice spokeswoman Tracy Schmaler said Friday that the department is abiding by its standard practice of defending existing law and that the filing doesn’t mean Obama has changed his mind about wanting to see gay couples win federal recognition.

“Until Congress passes legislation repealing the law, the administration will continue to defend the statute when it is challenged in the justice system,” Schmaler said.


I realize that there may be procedural reasons for the administration to uphold the law, but I wish that they wouldn’t be so energetic about it. They could have filed a pro forma brief or kept silent. I also realize that trying to do too much with gay issues can create a backlash; Bill Clinton learned that lesson in the first months of his term when he tried to lift the ban on gays in the military and we ended up with Don’t Ask/Don’t Tell, and, for good measure, DOMA. But if the Obama administration is truly serious about ridding the country of these laws, they sure have a funny way of going about it. Even the New York Times editorial board is finding this approach counter-productive:

The best approach of all would have been to make clear, even as it defends the law in court, that it is fighting for gay rights. It should work to repeal “don’t ask, don’t tell,” the law that bans gay men and lesbians in the military from being open about their sexuality. It should push hard for a federal law banning employment discrimination. It should also work to repeal the Defense of Marriage Act in Congress.

The administration has had its hands full with the financial crisis, health care, Guantánamo Bay and other pressing matters. In times like these, issues like repealing the marriage act can seem like a distraction — or a political liability. But busy calendars and political expediency are no excuse for making one group of Americans wait any longer for equal rights.

Or, to quote the old saw, there is never a wrong time to do the right thing.

HT to Melissa.