Saturday, June 13, 2009

So Much for Advocacy, 2

In the Tony Award-winning play "The God of Carnage" (spoiler alert!), the character played by James Gandolfini releases his daughter's pet hamster into the street because the noise from the rodent's wheel was disturbing his son's sleep. Of course he tells the daughter a lie -- the cage must have been left open, he claims, and the animal must now be better off, playing in a woodland paradise. In fact, I wouldn't be surprised if the character lied to the hamster itself: "You're going to be so happy with your other animal friends. It must be lonely for you in this cage."

I bring this up because I feel a bit like that hamster. Or the daughter. Or both. Either way, I was lied to. Obama made lots of promises to gay Americans (some of the best don't come until 2:55 in)...

...but so far, he's failed to live up to any of them. Then he went beyond just failing to take action, allowing his Department of Justice to defend the Defense of Marriage Act in the most ridiculous, reactionary way possible. The brief the DOJ filed in response to a suit by a California couple used arguments that sounded like something a graduate of Jerry Falwell's madrassa (as Dan Savage put it) would come up with: "There's no inequality of marriage rights, any man can marry a woman. And vice versa." "It's too expensive to extend rights to gay folks." "Homosexuality is like incest." (I've worded those a bit more bluntly than in the actual brief, but trust me, those are the core sentiments.)

So you can imagine how I feel like that poor, lied-to hamster. Told that good things are coming -- then kicked to the curb and abandoned to harsh elements and predators. The DOJ's brief in this case contains some of the most despicable anti-gay rhetoric imaginable.

Amid all the gloom across the gay blogosphere (I'm not the only one who feels betrayed), there are a few lights who are looking hard for a silver lining.

Laurence Tribe, the noted legal scholar, believe the specific case challenging DOMA's constitutionality (the case in which the DOJ filed this ridiculous brief) is the wrong case and hopes it goes away quickly: "As someone who wants to see DOMA dismantled and invalidated, I would love it if this ninth circuit case would evaporate into the ether. Even though I personally believe that DOMA is unconstitutional, I think that this particular lawsuit is very vulnerable; it’s not anywhere near as strong as the one that was brought in the federal district court in Massachusetts...the [Smelt] lawsuit in the central district of basically a bet-the-farm lawsuit that almost dares a conservative Supreme Court to slap it down."

Dale Carpenter, writing at the Volokh Conspiracy states that "For lots of reasons, gay-marriage advocacy groups would like to see this case go away, but go away without damage to the substantive constitutional case against DOMA. A dismissal on jurisdictional grounds would nicely suit that purpose, and that seems to me the most likely outcome."

However, he also goes on to say that "the DOJ brief goes further than it needs to go at this point in the case by addressing the merits of the constitutional issues in the case," and calls out a few specific tidbits in the brief, such as the fact that it is "identical in form to the defense of Texas's Homosexual Conduct law in Lawrence v. Texas: a law banning only gay sex doesn't discriminate against gays because it equally forbids homosexuals and heterosexuals to have homosexual sex and because it equally allows homosexuals and heterosexuals to have heterosexual sex. This sort of formalism has incited howls of laughter over the years when made by religious conservatives. Now it's the official constitutional position of the Obama administration."

Some are claiming that some of the arguments are so ridiculous that it's just another example of Obama being cagey, presenting a case that's likely to be dismissed because of faulty logic.

Over at, they are telling folks to "calm down": "by insisting that such measures come out of Congress he covers his ass, and also ensures that he doesn’t end up weak and ineffectual like Clinton became when he was forced to sign the Don’t Ask Don’t Tell “compromise.” That’s politics, folks. Can he push Congress to repeal DODT or DoMA? Absolutely, and he should, and we should pressure him to do so. But this lawsuit was not that time."

Some of this may be true. It may also be true that the administration is obliged to defend its laws. My thought is the administration's first duty ought to be to the Consitution.

This one isn't dead by a long shot. But Obama has dealt the gay community a deeply wounding blow, and it will not be soon forgotten - though it could be healed if the man gets his act together and makes good on all those promises.

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