(c) by Mary Griggs
There is no pain in the world like the hurt of betrayal. When it comes from our friends, it can leave a mark that might even last to the next election cycle.
The LGBT community got a slap in the face this past week in the form of the Obama administration brief (Smelt and Hammer v. United States) on dismissing the lawsuit against DOMA. It is rightfully being criticized as a harmful and mean spirited defense of a blatantly unconstitutional law. That it comes from our friends and not our enemies, makes the injury that much harder to endure.
And what arguments did they use? Something simple like the plaintiffs have no standing? Nope, not at all. The brief comes pretty darn close to arguing that the Defense of Marriage Act is good for America.
The brief not only dismisses the similarities of gay marriage to inter-racial marriage, it goes so far as to compare gay marriage to incest and the marrying of children. From there, it rehashes the absurd logic that there is no-one being discriminated against because gays and lesbians are allowed to get married—they just have to marry someone of the opposite sex. Not even the extreme fundamentalists use this specious reasoning anymore because even they recognize that the whole point of a freedom to marry is to join with the person you love.
Of course, one of the most insidious claims is the contention that discrimination against same-sex couples is rational because it saves the federal government money. I’m not sure but I don’t think the Framers had cost savings in mind when they established the Constitution as a shield of the citizens against governmental intrusion into our lives.
Far worse than that is the claim that DOMA is consistent with equal protection and due process principles. The Obama administration argues that DOMA is actually constitutional, and then proceeds to go into detail to undermine every single constitutional argument for opposing DOMA in court. The result is to screw the our community on every lawsuit we file on every LGBT issue and in every public policy debate we have in the states on any issue relating to the civil rights of lesbians, gays, bisexuals and transgender persons.
To those that say that the Department of Justice had not choice but to defend it, I say that is hardly the point. Whether or not the administration felt a need to defend, there were many ways they could have chosen to do so. Richard Socarides had this to say in his blog, The Choice to Defend DOMA, and Its Consequences.
“And even when the DOJ does defend a law against constitutional attack, it does not have to advance every conceivable argument in doing so (such as the brief’s invocation of incest and the marriage of children). In fact, many legal experts believe that in this particular case none of the issues going to the merits of whether or not DOMA is constitutional needed to be addressed to get the case thrown out. The administration’s lawyers could have simply argued, for example, that the plaintiff’s had no standing. There was no need to invoke legal theories that were not only offensive on their face, but which could put at risk future legal efforts on behalf of our civil rights.”
Offensive is right.