Gay groups criticize Justice Department brief

[Newsjock]

Source: Politico

President Obama seemed to have mended his difficult relationship with his the gay rights movement by getting the repeal of "Don't Ask, Don't Tell" done, but this evening brings another flare-up.

Gay groups are furious with a Justice Department brief defending -- though in quite narrow terms -- the Defense of Marriage Act, which Candidate Obama, unlike even his Democratic rivals, had pledged to repeal in full.

"DOMA is supported by rationales that constitute a sufficient rational basis for the law. For example, as explained below, it is supported by an interest in maintaining the status quo and uniformity on the federal level, and preserving room for the development of policy in the states," says the government's brief in two cases in the U.S. Court of Appeals for the First Circuit. The brief focuses solely on the virtues of keeping the federal law while state's experiment, and not the underlying question of marriage.

... "There are some improvements in tone in the brief, but the bottom line is the government continues to oppose full equality for its gay citizens," said Equality Matters chief Richard Socarides in an email. "And that is unacceptable."

Read more: http://www.politico.com/blogs/bensmith/0111/Gay_groups_criticize_Justice_Department_brief.html

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More from TPM:
http://tpmmuckraker.talkingpointsmemo.com/2011/01/justice_department_defends_the_defense_of_marriage_doj_doma.php

... But the appeal makes clear that the Obama administration doesn't support DOMA, and that the Justice Department was simply following tradition in defending even those laws the executive branch disagrees with.

"Indeed, the President supports repeal of DOMA and has taken the position that Congress should extend federal benefits to individuals in same-sex marriages," DOJ writes in the appeal. "But a consensus behind that approach has not yet developed, and Congress could properly take notice of the divergent views regarding same-sex marriage across the states."

"The Department of Justice has long followed the practice of defending federal statutes as long as reasonable arguments can be made in support of their constitutionality, even if the Administration disagrees with a particular statute as a policy matter, as it does here," government lawyers write. "This longstanding and bipartisan tradition accords the respect appropriately due to a coequal branch of government and helps ensure that the Executive Branch will faithfully defend laws with which an Administration may disagree on policy grounds."

[msanthrope]

1. Please. Read the reply brief. The 'defense' of DOMA is about

as enthusiastic as the 'defense' that was given in Witt and Log Cabin.

Pro-forma, and not much else. Coakley isn't going to have to break a sweat.

This is why Rep. Lamar Smith has asked the federal court to take over the 'defense.'

http://www.queerty.com/rep-lamar-smith-is-afraid-obamas-doj-isnt-defending-doma-enough-so-he-wants-in-20101007/

[No Elephants]

2. Um, per the link you posted, Smith asked to intervene BEFORE the govt filed its brief.

So Smith was pulling stuff from his ear.


And, if you are accusing the D of J of deliberately filing a weak brief, you are also accusing D of J of wasting taxpayer resources, of violating Rule 12 of the Federal Rules of Civil Procedure and of violating legal ethics.


Did you read the brief you claim is so deliberately lame? If so, why not explain why you find it so lame--and deliberately so? Or are you simply taking Ben Smith of Politico at his word?

"There are some improvements in tone in the brief, but the bottom line is the government continues to oppose full equality for its gay citizens," said Equality Matters chief Richard Socarides in an email. "And that is unacceptable."

<snip>

"The Administration claims that it has a duty to defend the laws that are on the books. We simply do not agree. At the very least, the Justice Department can and should acknowledge that the law is unconstitutional," Human Rights Campaign president Joe Solmonese said in an email to the group's members, signaling that even the relatively conciliatory group will take a more confrontational tone on marriage. "All families deserve the recognition and respect of their government. It's time for President Obama to state his support for full, equal marriage. And we want your help in telling him that it's time."

[msanthrope]

4. Um, dude. You might wanna read Rule 12 before writing about it.

Not for anything, but it's difficult to take your legal analysis seriously when you can't even come up with the correct FRCP.

Now, I think you meant Rule 11. At least, I hope you meant Rule 11.

The DOJ has done an adequate brief. It is weak, however, because of the failure of the DOJ to engage in certain arguments. If you feel that that failure is violative of some Rule or legal ethic, feel free to find a case on point that supports your theory.

[Swede Atlanta]

3. Therin lies the rub............

Litigation is all about the power of persuasion.

The Justice Department has, by precedent, an obligation to defend any law that was duly passed by Congress and either signed into law by the President or overridden by Congress.

The challenge is when those in the Justice Department have a hard time themselves finding legal justification for the law. You can only make things up out of thin air so much. They can rely on findings of Congress, etc. but at some point if no credible argument can be constructed there is no where to go.

[queerart]

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