Upon reflection, the move the Obama administration made on Wednesday in dropping their defense of the so-called Defense of Marriage Act is really amazing.
The Spectrum of Attitudes on LGBT Marriage Discrimination
A look at where people fall on the spectrum of supporting or condemning discriminatory policies on marriage. Public opinion polling is, nationally, inching closer to a majority, and past it in blue states. It should also be mentioned among Democrats, it's surpassed majority pretty handily.
• On the far right we have groups like National Organization for Marriage, Family Research Council and others, and many individuals messaging that marriage discrimination is not only a good thing, but essential. That absent these discriminatory policies, the sky would fall, children will be raised in poverty and desperation, there will be dogs and cats living together, and society as we know it would cease to exist.
• On the far left we have LGBT advocacy groups and individuals decrying such discrimination as despicable. They say it codifies a homophobic status quo of society into law, stigmatizes LGBT relationships and families as "less than," and ultimately lends credibility and the force of government disapproval to all forms of LGBT hatred and marginalization from the employment sector to the playground.
See where we were just a few weeks ago? The Obama administration was carrying water for the right, making arguments in court cases that indeed, such discrimination could be found to have justification in the Constitution. They were reaching, no doubt, but the reaches they had to make were very painful to the base that elected him.
I graphed the Obama administration as Jupiter, because of the great gravitas that the Office of the Presidency and the Executive Branch of the Department of Justice holds in the sphere of public discourse in shaping opinions toward their perspective.
In throwing in the towel on this fight, they've made a very significant move to the left side of the spectrum. See where the gravitational weight of the Presidency, the Justice Department is tugging on the conversation, on attitudes? Away from essential, closer to despicable.
The cases before the court will now have a significant reshuffling. Of course there's the obvious reshuffling of attorneys. I have full confidence that Congress will indeed fill the Defender void left by the DOJ and the cases will continue. If not Speaker Boehner himself, someone in the GOP caucus will response to the Christian Taliban's call to "defend marriage" and a means to continue the defense of the statute will continue as will it's enforcement, no matter what Meghan Kelly of Fox News thinks and tells her viewers.
But the deck has been reshuffled. The Department of Justice's opinions are not inconsequential. Changing their minds has a big affect on the arguments in the court of law, not just the court of public opinion.
And it's not just me that thinks this.
"A Whole New Ball Game."
Jack Balkin constitutional law professor at Yale, on originally wrote of the DOMA Constitutional strike down levied by Judge Tauro in July 2010 in Massachusetts v. Health and Human Services, "What an amazing set of opinions . . . No chance they’ll be held up on appeal." He, like the Justice Department, has made a 180 on this issue. He now calls it a "whole new ball game." He writes on his blog Balkinization:
Why is that? Why does a change in the official position of the Administration matter to federal judges? The answer is that when the President and the Justice Department change their minds publicly and take a new constitutional position, it gives federal courts cover to say that their decisions are consistent with the views of at least one of the national political branches. Agreeing with the President appears less countermajoritarian, even if other parts of the federal government (and the various states) disagree.
Thus, it was only after the Truman Administration asked the Supreme Court to overturn Plessy v. Ferguson in Sweatt v. Painter in 1950, and again in the Brown litigation in 1952, and after the Eisenhower Administration's Justice Department concurred with the Truman Administration when it came into office, that the Supreme Court finally felt comfortable overturning Plessy v. Ferguson in Brown v. Board of Education in 1954. After the Bush Administration took the official position that the Second Amendment protects an individual right to bear arms in self defense (around 2001), this provided political cover for the Justices to reach the same conclusion in 2008 in District of Columbia v. Heller. Note that the President's explicit and public support for a constitutional position does not have to be a reason explicitly stated in judicial opinions, but it can be an important factor nonetheless.
The Administration's decision to switch sides does not by itself guarantee what the lower federal courts or the Supreme Court will do. But it adds to the weight of social forces moving toward the recognition of equal rights for gays and lesbians. It is possible, perhaps even likely, that some courts will disagree with the Administration's new position: after all, some courts disagree with the Administration's position on the health care bill and the Supreme Court did not agree with the Administration's position in Citizens United. But in neither of those situations did the same Administration switch sides midway through a series of cases on an issue of constitutional prominence.
Until this time, the claim that Obama was the most gay friendly President was mitigated by the sad reality that no previous President can make an honest claim to the mantle of "gay friendly."
Close followers of LGBT policies have been acutely aware that measures like hospital visitation, housing and yes--even DADT repeal--remain achievements that are vulnerable to rescinding at the discretion of future executives.
The events in Wisconsin this week serve as a sobering reminder of how far the GOP is willing to go to and how little they care for the will of the people or how they look. The LGBT community is well aware that public ire on walkback in LGBT progress will be met with substantially less pushback than the union busting tactics of the GOP. Governor Bob McDonnell successfully walked back LGBT protections in VA, despite a very concerted effort to shame him out of it. The permanence of a solution is an essential component, not at all inconsequential.
But this, this is lasting and far reaching. This is not something that can be easily walked back. Obama really spent some capital here. He made a public declaration, "I can't defend this. Someone else is going to have to. You come up with the reasons. My administration isn't going to anymore." And good for him. I look forward to no longer feeling the administration I worked to elect is fighting my equality under the Constitution.
This move challenges all those who would defend LGBT discrimination against gay people, whether in a court of law or public opinion, to defend it rationally. And we've seen in the Prop 8 trial, when called upon to defend their bigotry with evidence, with facts, with their public appearance, more and more people are reaching for straws and ducking for cover (Prop 8 Trial Witness List Shrinks).
But Obama has also re-engaged old allies to his side. This is what's known as feeding the base. Support for LGBT community is ceasing to be a controversial issue among the Democratic base, although some electeds still have to get that memo. Even Glenn Greenwald said last night the president deserves "enthusiastic unqualified praise" for yesterday's DOMA move.
"This is a case where there's a fair amount of political risk, very little political benefit."
He's right about the risk. The right is, of course, already apoplectic. Mercilessly attacks have been launched by
The Washington Times, Rush Limbaugh, and of course,
Maggie Gallagher. But as many of us have been saying, when did any of them ever have a kind word for Obama anyway? People who listen to them also believe he's a secret Muslim terrorist.
But is Greenwald right about the lack of benefit? I'm not so sure. That could well help that enthusiasm gap Democrats struggle with of late. To inflame the right on a issue that Democrats support, could well reap benefits.
When it was revealed that the original, extremely inflammatory DOMA brief was written by Bush DOJ holdover attorney, W. Scott Simpson, I wondered when the Change™ I'd campaigned and worked for was coming if a Bushie was still writing briefs on my Civil Rights. That seemed lazy, or a serious misstep. Howard Dean said of the language in the brief at the time, "It wasn't a little too far. It was a lot too far." Mistakes get made.
But this? This is the bully pulpit the gay community was promised. This is what we were hoping for. This is what we were asking for. And good for him.
UPDATE: I was wondering when we'd hear from the folks at GetEqual. And just in my inbox here's the note:
As Speaker of the House, Boehner represents the whole country -- including LGBT Americans -- and we need him to focus on helping to get the economy back on track, rather than spending taxpayer resources on lawyers to go defend this unconstitutional law in the courts.
When this news broke, we immediately called one of our rock-star GetEQUAL organizers in Ohio, Tom Morgan, to get his thoughts -- here's what he had to say: "Boehner: Control Spending, Don't Defend DOMA!"
As a tax-paying gay Ohioan, I hope that Speaker Boehner understands where his priorities should be. There's a huge financial cost to defending this law in the courts -- and Ohioans need the Speaker to focus on providing cops and firefighters for our state...not discriminating against me and my family. I hope the Speaker does the right thing but, if he doesn't, he should know that there are folks in Ohio who will be paying a visit to his office with petition signatures in tow, and making it VERY clear where we stand!
Join Tom and others from Ohio and across the country in signing the petition to Speaker Boehner!
Sign the Petition here.
It seems this is smart messaging. As Boehner decried Obama stirring up this controversy, let us remember, the responsibility for controversy and cost of defending DOMA ending or continuing is at his discretion. He could end DOMA this week.
Updated by Clarknt67 at Thu Feb 24, 2011, 06:29:32 PM
From EqualityMaryland, the Senate has passed the Marriage Equality bill:
#SB116 PASSES SENATE 25-21!!! #MarriageEquality! On to the House, #Marryland!!! http://twitpic.com/...
This is the highest hurdle in this fight. The State House is expected to approve and the Governor has said he'll sign in. Marriage Equality in Maryland is all but assured by this move.
Maryland State motto: "Manly deeds, womanly words" LOL, congratulation on this Manly deed!
Updated by Clarknt67 at Thu Feb 24, 2011, 06:34:30 PM
I had to look this up. Maryland is "The Old Line State." Looks like they drew a New Line in equality today.