Bench Memos

DOJ’s Brief “Reads Like A Gay Rights Manifesto”

The San Francisco Chronicle accurately reports that the Obama administration’s latest brief (link fixed) on the Defense of Marriage Act “reads like a gay rights manifesto.” That’s just another step in the Obama administration’s sabotage of a federal law that it is dutybound to defend vigorously and competently.

A few other observations on the brief:

1. The brief concedes that “binding authority of this circuit [i.e., the Ninth Circuit] holds that rational basis review applies to sexual orientation classifications” (even as it argues that that binding authority “no longer withstands scrutiny”). That concession ought to require the district court—which may not ignore binding circuit authority—to grant the motion to dismiss filed by the House of Representatives. The concession also renders the rest of the brief a legal irrelevancy.

2. In an argument heading, the brief asserts that “gays and lesbians exhibit immutable characteristics that distinguish them as a group.” (Emphasis added. For ease of reading, I’ve eliminated the capitalization in the passage.) Ordinarily, anyone who asserted that gays and lesbians “exhibit” characteristics (immutable or otherwise) that distinguish them as a group could expect to be labeled a homophobic bigot. But anything goes, evidently, in the cause of attacking the Defense of Marriage Act.

3. The brief also claims that gays and lesbians have “limited political power.” Understood literally, that claim of course is a truism, for no one has infinite political power. But the claim is meant to support the proposition that gays and lesbians are “politically powerless” (for purposes of the determination whether heightened scrutiny applies). Understood that way, the claim is belied by, among other things, the very brief in which it appears—that is, by the fact that gays and lesbians have successfully pressured the Obama administration to attack, rather than defend, DOMA.


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