Monday, June 22, 2009

Dissenting Justice on the DOMA Brief, Part I: The Politics

Nearly two weeks have passed since the Department of Justice filed a controversial brief in Smelt v. United States, a case challenging the constitutionality of the Defense of Marriage Act. GLBT advocates responded to the brief with outrage. John Aravosis at Americablog, for example, wrote a stinging essay denouncing the brief as "despicable" and "gratuitously homophobic." Furthermore, several GLBT Democrats subsequently pulled out of a fundraiser for the DNC sponsored by gay and lesbian rights organizations.

Some of the outcry regarding the brief is absolutely justifiable. Some of the critiques, however, go too far. In many ways, the brief poses a greater problem politically than legally. This essay is Part I of a two-part series analyzing the DOMA brief. While this article examines the political issues the brief raises, a second essay will analyze the legal claims DOJ asserts in the brief.

Politics of the Brief
Politically, the submission of the brief will further erode trust for the Obama administration among GLBT individuals. During the Democratic Primaries and in the general election campaign, President Obama expressed passionate disagreement with DOMA and vowed to seek its repeal. Yet, in the first case requiring his administration to comment on the constitutionality of DOMA, Obama has defended it as a rational law that does not violate any constitutional norms. Accordingly, the brief represents a betrayal by Obama on his pledge of support for GLBT rights and regarding his specific opposition to DOMA.

A closer examination of Obama's record, however, demonstrates that Obama has not always held a consistent position on DOMA -- a fact Dissenting Justice first examined in March 2009. For example, when Obama ran for the Senate in 2004, he wrote a letter to the Windy City Times (a Chicago GLBT newspaper), which states that he opposed DOMA when it was enacted in 1996. In 2003, however, Obama completed a candidates' questionnaire and stated that he did not support the repeal of DOMA. In 2007, a campaign spokesperson for Obama explained that he changed his mind after "gay friends" told him how hurtful DOMA was to them. Of course, Obama could not have intellectually opposed DOMA in 1996, supported it in 2003, and suddenly opposed it again in 2004. Instead, his conflicting stances are likely motivated purely by political calculations.

Today, Obama is engaging the exact same song and dance regarding DOMA. Although he maintains that he supports the repeal of this "hurtful" law, his administration has defended it as legally rational legislation. This position is patently absurd.

Early Warning?
Earlier this year, someone in the Obama administration edited language on WhiteHouse.Gov, which lists the President's position on civil rights issues, including GLBT rights. The older version of the website stated that Obama desired and would advocate the repeal of DOMA and Don't Ask, Don't Tell. The edited language, however, omitted references to DOMA altogether and stated that Obama wanted to change "Don’t Ask Don’t Tell in a sensible way that strengthens our armed forces and our national security."

Several pro-GLBT blogs (including Dissenting Justice) responded to the edited text, after which the White House said that the changes only reflect routine editing and updating. Subsequently, the White House reinstated language indicating Obama's support for the repeal of DADT. The website, however, remained silent on DOMA. It does contain, however, language stating that Obama supports "full civil unions and federal rights for LGBT couples."

Although the White House response to the altered text apparently satisfied other bloggers, Dissenting Justice argued that: "It is difficult to believe that changes in WhiteHouse.Gov language concerning [DOMA and DADT] do not indicate the position the government will soon take in . . . lawsuits" over these policies. Although the DOJ brief is arguably consistent with the vague language on WhiteHouse.Gov concerning "civil unions" and "federal benefits," it is absolutely inconsistent with a preference to repeal the law. Apparently, the edits likely reflected the Obama administration's substantive position on these issues, as Dissenting Justice initially predicted.

In addition to his inconsistent stances on DOMA, Obama has stated that he does not support same-sex marriage but that he opposes efforts to prohibit it (such as California's Proposition 8). Obama says that he is a "fierce" advocate of gay rights, but he has not taken any steps to ensure the passage of legislation advancing GLBT equality, and he has not intervened on behalf of two Asian Americans who face discharge from the military because they "came out" of the closet. And even prior to taking office, Obama created tension among GLBT people when he invited antigay minister Rick Warren to speak at his inauguration.

Reap What You Sow?
Prior to the Warren controversy, GLBT activists gave Obama -- and all of the other Democratic presidential contenders -- a free pass to take conservative positions on GLBT issues. Many political commentators believe that President Bush won reelection in 2004 by drawing evangelicals to the polls with his support of a constitutional amendment banning same-sex marriage. Accordingly, many GLBT rights advocates refused to criticize Democrats because they feared throwing the election to Senator McCain. Perhaps in their effort to protect Democratic candidates these activists convinced themselves (if they did not already believe) that Democrats would actually support GLBT rights once elected. This is an unsophisticated position. True equality is not a political handout. It comes from activism, litigation, and engagement, rather than blind faith.

In many ways, GLBT groups are experiencing the fallout from their generous trust in Democratic politicians -- a stance that prior generations of gay rights advocates refused to take (up until possibly the election of Bill Clinton). Recent events should convince liberals to retire their wrongheaded discourse that embraces "post-racial," "post-feminist," and "post-identity" politics. So long as identity-based inequality exists, identity politics will remain relevant.

Forthcoming: A Legal Analysis of the DOMA Brief


Darren Lenard Hutchinson said...

Hi, readers. I am back from a short hiatus. I had to finish grading exams and have a life. Thanks for reading!

Roy Lofquist said...


Chickens and roosting....

The Democratic Party has for many years pursued interest group politics. They have pledged full and undying support for many narrow interests, secure in the belief that they would never have to deliver. They tried, but those dastardly Republicans blocked them by nefarious means.

Now that they are seemingly in the position to fulfill their promises they are in a quandary. Because of the party's seniority rules the committees chairs, from ultra safe districts, are solidly to the left but the rank and file have to win contested elections. Many of the issues - GLBT, Card Check, Health Care, Cap and Trade, DOMA, DADT - are political poison in their districts.

I have long noted that when you have so many single interest groups in a coalition you will inevitably find many of them at cross purposes. They are unable to build broad support so they hitched their wagons to the Party. Unfortunately for them the Party is unable to deliver.

I have been watching the passing scene for more than 60 years. I've always thought that I'd lived through some very interesting times. This is much better than television. Truth is certainly stranger than fiction.


Darren Lenard Hutchinson said...

Roy - don't you suspect the same process you describe has impacted the GOP? There are many people who voted for Republicans because they promised to deliver (and sometimes did) reform on the same issues you listed. They oppose choice, gay rights, affirmative action, etc. But some of these issues now have the support of moderates.

I have consistently argued on this blog that social conservatism is not dead -- notwithstanding the current difficulties of the GOP. Nevertheless, the party might have to appear more moderate in the shortrun in order to remain politically relevant.

Finally, I would not conflate Obama or Congress with "Democrats." While national politics might not support the enactment of some liberal policies, local politics (as indicated by states allowing same-sex marriage and other protections for gay and lesbian individuals) will often support liberal outcomes. I would argue that this is true of conservative politics as well.

Roy Lofquist said...


Points noted.

Of course the Republicans have their own interest groups but they don't wag the dog as vigorously as those on the D side. The major interest groups on the R side - NRA, Religious Groups, Small Business - are both more broadly based and hardly monolithic R voters.

Most people are "conservative" in the literal meaning of the word. Change, particularly radical change, is very uncomfortable. This is not peculiar to the U.S. In fact, Americans are far more amenable to change than most. But we enjoy, arguably, the best society in human history. People here are, for the most part, very happy with their lives. They are leery of grand schemes to change qua change.

I have, in my life, seen vast changes in our society. Minorities have made great strides in basic social acceptance. But these changes are generational.

I salute you and yours for fighting the good fight. But it's a long war.


Anonymous said...

Dear Mr. Hutchinson: You write:
While national politics might not support the enactment of some liberal policies, local politics (as indicated by states allowing same-sex marriage and other protections for gay and lesbian individuals) will often support liberal outcomes. I would argue that this is true of conservative politics as well."

No no no. Local outcomes may be liberal. If they are, they are Democratic. Local outcomes may be conservative. If they are, they are Republican. The reverse outcomes are rare indeed, so rare as to make what I have just stated a good rule of thumb.

"I would not conflate Obama or Congress with 'Democrats.'" What does this mean? Is there a substantial body of Democrats opposed to The One, waiting to pounce, and shove him to ruin? Surely not. With Congress, the issue is more complex, but if we can't say that the present membership of House & Senate represents Democrats fairly, words have no meaning. Or maybe they are being sliced too thin again...

Finally, "So long as identity-based inequality exists, identity politics will remain relevant." Ah, but when the identities start shifting, what then? In 2003, Hispanics surpassed blacks as the largest miniority group, a phenomenon that will continue. And unlike many whites, Hispanics are a good deal less prone to guilt about their nation's history. That's going to cause a great deal of trouble down the road. Not in my lifetime, nor possibly in yours. But sometime.

Bring on the legal analysis, which I look forward to.

Dear Mr. Lofquist: How many NRA voters cast ballots for The One? So far as not wagging the GOP dog, could you explain the Schiavo case, in which the federal Congress did its damdest to keep Terri Schiavo alive, and to hell with any "limited government" notions?

Sincerely yours,
Gregory Koster
(not of CUNY)

Roy Lofquist said...

Dear Mr. Koster,

As far as I remember gun control was not an issue in the campaign. I suspect that more NRA members voted McCain than Obama though I don't recall any exit polling addressing the issue. As for the Schiavo case, an anomaly. If you're looking for consistency in politics try someplace where the govt gets 99% every time.

My post was responding to Darren's point that Obama has apparently reneged on a campaign promise to support the GLBT agenda. The thrust of my argument is that the D's have pandered to single issue groups and now it's stand and deliver they can't.


Darren Lenard Hutchinson said...

Roy, I do believe that Americans are generally more conservative, or at least centrist, than anything else. But our political experience does not evolve in a linear fashion. There are political and economic cycles that explain ideological shifts in the country. Currently, there is a modest shift to the left, and Republicans will simply look "out of touch" if they run even more deeply to the right (a la Limbaugh and Buchanan).

Even though the country is conservative, Bush first won by appealing to the center. Remember "compassionate conservatism"? The vague concept was designed to make him look less abrasive and harsh as the extreme right. From that, we got two wars, torture, two recessions....Many moderates and even some conservatives were deeply troubled by Bush. That's why Obama won. So disppointment is not something unique to liberals.

Also, even on some issues -- like gay rights -- I suspect that conservatives mislead the right. For example, Bush probably knew that the marriage amendment had absolutely no chance of getting ratified. He supported it to lure conservatives to his ticket. Republicans always play to abortion, but outside of the partial-birth legislation, when is the last time you saw meaningful national legislation on abortion? The Republicans' "American pride" agenda neglects to discuss the fleecing of jobs from the US economy. I could add more, but I think this will suffice.

Darren Lenard Hutchinson said...


Your paragraph beginning with "no no no" seems to respond to points I never made.

Also, my point about not conflating "Obama and Congress with Democrats" simply reiterates my assertion that local politics can support more liberal (or conservative) outcomes than national politics. Gay marriage may be legal in Connecticut, but neither Congress nor Obama will touch the issue. Connecticut is a "blue" state; Obama won Connecticut; Congress is majority Democrat; but notice the different positions on this issue. Ergo, do not conflate national and local politics.

Finally, if you do not believe that "identity politics" matters to Latinos, then you have not read much about Latino politics. While you conflate "identity politics" with "guilt about the[] nation's history," that is an absurd description. If you lived in Texas, California, Florida, New York or in other parts of the country with significant numbers of Latinos, I doubt that you would say that their growth represents the demise of identity politics.

Besides, all groups employ identity politics. The descriptions of Frank Ricci, for example, portray him as the victimized white male harmed by undeserving people of color and a mean Latina judge.....White women also use identity politics. Did you pay any attention to the Clinton campaign?

Decidere said...

"political considerations"? Ouch.

Darren Lenard Hutchinson said...

Decidere - are you referring to my comment about "political calculations"? If so, I guess the truth hurts. Ouch.

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