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Second Take on the Dept. of Justice DOMA Memo

June 18, 2009

Chris Geidner has two interesting pieces up on the now infamous Department of Justice memo defending the Defense of Marriage Act.  The first is on his blog, Law Dork, 2.0, and looks at inflammatory and inaccurate language on AmericaBlog and Barney Frank’s reversal of his initial outrage upon reading the brief.  The second is a slightly broader piece on

Then, this past Friday, I awoke to word at AmericaBlog, the Web site of gay activist blogger John Aravosis, that “Obama defends DOMA in federal court” and “invokes incest and marrying children.” I was appalled. Aravosis also wrote in another post that the DOJ was “lying” when it said that Justice “generally … defend[s] the law on the books in court.” Then I looked at the brief. I agreed with Aravosis that the brief went too far in some of the language it used in its defense of the statute. But, looking at the law and past cases, I disagreed that the Obama administration had a real choice about whether it would defend DOMA in court and that DOJ’s brief “compared us” to incest and pedophilia. And, because some in the community have kept pushing those stories — despite contrary opinions from Laurence Tribe, Nan Hunter, Robert Raben and others — I’ve spent the past week attempting to dispute those claims.

Based on Geidner’s assessment that the brief may have used some less than ideal language but is generally fair, it’s not hard to imagine how a Commander-in-Chief/former constitutional law professor might simply see the issue as arguing a point (that he disagrees with) from a legal perspective relying on precedent.  The precedent may be offensive, but for a legal argument it’s not about details, it’s about process.  I still think he responded poorly to the anger and hurt, but if he saw it as unfair criticism of the DOJ doing their job, he may have simply chosen not to engage. Who knows if that was the right response.

On the larger issue of gay rights I remain disappointed to some extent that we haven’t seen action (not on marriage, but on any  significant issue), but I don’t say that to mean I won’t continue to support Obama as he does a ton of other incredibly important things for our country.  I think that Geidner point later on in the Salon piece is well made and the right takeaway from this entire debacle.

I think we have made our point. Fair, consistent, vocal criticism leveled against those who do not help advance LGBT equality works. Whether spread on the Internet or across statehouses or at a march, we have shown — and they have shown — that our voices send a strong message to this White House. Rep. John McHugh, the Army secretary nominee, himself has issued a statement affirming his desire to change the law that doesn’t allow gay people to serve openly in the military.

Wednesday’s events made it clear once again that the Obama administration has heard us. The administration has taken a step forward, and so should we. Demonizing Obama or openly gay leaders like Frank, Baldwin or Solomonese (which is not the same as fairly criticizing them when we disagree with their actions) is not the way to move the ball forward.

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