Bench Memos

Obama DOJ Official Acknowledges Sabotage of DADT and DOMA Litigation

A follow-up to my previous discussions of how, in litigation involving gay issues, the Department of Justice has acted to sabotage the federal laws—specifically, Don’t Ask, Don’t Tell and the Defense of Marriage Act—that it is dutybound to defend vigorously:

According to this sympathetic TPMMuckraker account, in a meeting last week with reporters, Tony West, the head of DOJ’s Civil Division, conceded that DOJ was modifying its legal arguments to comport with the Obama administration’s “policy values”:

West said Monday that DOJ was discharging its responsibility to the tradition of the Justice Department while making adjustments to the arguments in line with the administration’s views.

“I think that the best example — let me give you one — in the Defense of Marriage Act — you’ll notice that we have not only discharged our responsibility to defend the constitutionality of a congressional statute, but we’ve done so in a way which reflects the policy values of this administration,” West said.

“We disavowed some arguments that we believed had no basis in fact, and in fact we presented the court through our briefs with information which seemed to undermine some of the previous rationales that have been used defense of that statute,” West added.

What West fails to make clear is that the arguments that DOJ disavowed—that the Defense of Marriage Act is rationally related to legitimate government interests in procreation and childrearing—are arguments that DOJ in the Bush 43 administration had used successfully in defending DOMA from attack.  See, e.g., Smelt v. Orange County, 374 F. Supp. 2d 861, 880 (C.D. Cal. 2005) (“Because procreation is necessary to perpetuate humankind, encouraging the optimal union for procreation is a legitimate government interest. Encouraging the optimal union for rearing children by both biological parents is also a legitimate purpose of government.”). Indeed, it’s those same arguments that have been widely relied on by federal and state courts in upholding states’ traditional marriage laws.

In other words, in what an ardent proponent of same-sex marriage celebrated as “a gift to the gay-marriage movement,” the Obama DOJ abandoned the very arguments that were most likely to succeed.

According to what I take to be TPMMuckraker’s paraphrase of his remarks, West even admitted that DOJ precleared its arguments with gay activists:

The Civil Division of the Justice Department, which defends the laws passed by Congress, has worked with the Civil Rights Division’s liaison to the gay, lesbian, bisexual and transgender community to make sure that future briefings don’t advance arguments that they would find offensive. [Emphasis added.]

At bottom, DOJ is much more interested in nurturing the Obama administration’s political ties with gay-rights groups than in successfully defending DOMA and DADT.

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