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.
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