The Obama Brief's Betrayal of the Gay Community on DOMA

Putting this photo of Mary Ellen and I up again. We're waiting.

This really hurts. As we get ready to celebrate this weekend's Albuquerque Pridefest, there's depressingly shocking news coming from Washington. Remember when Obama said that he's a "fierce advocate" for GLTB rights? Actions speak louder than words. The Obama administration just filed an outrageously negative brief supporting the despicable Defense of Marriage Act that was signed into law by none other than Bill Clinton. You read that right -- Obama is DEFENDING DOMA -- which is bad enough -- but he's actually using some of the worst conservative talking points to do it.

As Marc Ambinder reports:

Now, in a legal brief submitted to a federal judge, Obama's Department of Justice, writing in the name of the United States government, whose CEO is Barack Obama, argues that the 1996 Defense of Marriage Act is appropriate, carefully balanced and justified by reason, and not by animus toward gay people. A lot of the same rhetoric used to justify actual discrimination against gays is cited in the brief as a reason why DOMA is necessary. (Child abuse precedents, all of that.) The brief even resorts to the argument that DOMA doesn't deny gays anything because they're still entitled to all the benefits that heterosexuals get -- if they act heterosexually [emphasis mine]. The brief also suggests that gays accessing federal benefits will be free riders.

A White House spokesperson the brief this way:

"The president has said he wants to see a legislative repeal of the Defense of Marriage Act because it prevents LGBT couples from being granted equal rights and benefits," she said. "However, until Congress passes legislation repealing the law, the administration will continue to defend the statute when it is challenged in the justice system."

Okay, there may be merit in the argument that Obama believes he must defend current law. But the twisted arguments based on bigotry and dishonesty that he uses to do so in the brief are beyond defending, at least in my view. And they're especially insulting given the fact that Obama has so far outright refused to make a move to get rid of DOMA or toss out Don't Ask Don't Tell -- things he repeatedly promised to do when he was campaigning. Meanwhile, Obama's bully pulpit goes unused. We're tired of waiting Mr. President. Real lives are being kept on hold, damaged or even ruined while you twiddle your thumbs and dedicate yourself to avoiding confrontation -- hardly a prescription for strong leadership. Obama has even refused to speak out about the recent marriage equality victory in New Hampshire -- not one word of support or congratulation. Nothing.

As Ambinder writes,

Obama won't fast track Don't Ask, Don't Tell. His administration isn't pressuring Congress to act quickly on gay rights initiatives. Obama has so far failed to find a way to grant federal benefits to couples with civil unions or state-sanctioned marriages.

I'm with John Aravosis at Americablog on this one. He's a blogger who happens to be gay, like me, as well as a lawyer. You need to read his entire post, but here are a few nuggets:

[The brief is] despicable, and gratuitously homophobic. It reads as if it were written by one of George Bush's top political appointees. I cannot state strongly enough how damaging this brief is to us. Obama didn't just argue a technicality about the case, he argued that DOMA is reasonable. That DOMA is constitutional. That DOMA wasn't motivated by any anti-gay animus. He argued why our Supreme Court victories in Roemer and Lawrence shouldn't be interpreted to give us rights in any other area (which hurts us in countless other cases and battles). He argued that DOMA doesn't discriminate against us because it also discriminates about straight unmarried couples (ignoring the fact that they can get married and we can't).

He actually argued that the courts shouldn't consider Loving v. Virginia, the miscegenation case in which the Supreme Court ruled that it is unconstitutional to ban interracial marriages, when looking at gay civil rights cases. He told the court, in essence, that blacks deserve more civil rights than gays, that our civil rights are not on the same level.

Aravosis also disputes the White House argument that Obama had to defend the constitutionality of DOMA:

And before Obama claims he didn't have a choice, he had a choice. Bush, Reagan and Clinton all filed briefs in court opposing current federal law as being unconstitutional (we'll be posting more about that later). Obama could have done the same. But instead he chose to defend DOMA, denigrate our civil rights, go back on his promises, and contradict his own statements that DOMA was "abhorrent." Folks, Obama's lawyers are even trying to diminish the impact of Roemer and Lawrence, our only two big Supreme Court victories. Obama is quite literally destroying our civil rights gains with this brief. He's taking us down for his own benefit.

Now gay and allied groups have issued a statement criticizing the Obama administration's brief. It's signed by the ACLU, GLAD, Lambda Legal, NCLR, HRC and NGLTF. The statement is particularly critical of the administration's use of a crazy argument to support staying "neutral" on gay marriage because of financial concerns:

We are also extremely disturbed by a new and nonsensical argument the administration has advanced suggesting that the federal government needs to be “neutral” with regard to its treatment of married same-sex couples in order to ensure that federal tax money collected from across the country not be used to assist same-sex couples duly married by their home states.

There is nothing “neutral” about the federal government’s discriminatory denial of fair treatment to married same-sex couples: DOMA wrongly bars the federal government from providing any of the over one thousand federal protections to the many thousands of couples who marry in six states. This notion of “neutrality” ignores the fact that while married same-sex couples pay their full share of income and social security taxes, they are prevented by DOMA from receiving the corresponding same benefits that married heterosexual taxpayers receive. It is the married same-sex couples, not heterosexuals in other parts of the country, who are financially and personally damaged in significant ways by DOMA. For the Obama administration to suggest otherwise simply departs from both mathematical and legal reality.

Maybe it's time for everyone who supports us in the civil rights fight of this era to stop paying taxes until ALL our citizens get the benefits afforded to most. At the very least I think we need to start making some big noise and keep it up until Obama deigns to act on behalf of civil rights, human rights, our rights.