June 18, 2009

The Obama Administration's Smelt Brief

"The Obama administration chose poorly." I'd say Professor Dorf's evaluation of the brief may be too complimentary.

Posted by armand at June 18, 2009 12:14 AM | TrackBack | Posted to Law and the Courts


I've fallen back to completely agnostic on this issue, after initially being outraged. When I stopped thinking as an advocate for same-sex marriage and started thinking like a lawyer, and started thinking about the role of DOJ and the executive branch, I lost my spleen for the fight, at least in this case. Tribe wrote an interesting short piece in The Advocate, that took a view unacknowledged by Dorf: that there is a better challenge, in Mass. I believe, procedurally and substantively, in that it comes at the issue more narrowly and does not have the standing and justiciability baggage of the Smelt case.

But more generally, what happens if Obama perpetuates the notion, novel to the Bush presidency, that every arrow in the President's quiver (which, as a practical matter, numbers far more than the arrows that there is repeated precedent for him to use) is appropiate to use against any duly executed law with which he disagrees? What happens if Obama overseas, in his 7th year say, a statute repealing DOMA and reversing field -- extending all federal marriage benefits to same-sex unions and restoring traditional full faith & credit to that context? Well, it'll be in the year or so after Obama's done that the statute finally makes its way to the Supreme Court, and the next President, say a Republican, will be the one to decide how his DOJ should argue the case?

Basically what we'd be doing as to any sort of controversial legislation is making our Presidents lame ducks for the last two years of their tenure -- cutting their terms in half for policy-making purposes. Historically, DOJ has defended laws according to a rational basis test, and that's what they're doing here.

I don't necessarily disagree with Dorf's observation that the arguments might be problematic in themselves, but then, while I agree DOJ's obligations differ a little here from those of a normally zealous advocate, once they decide that rational basis demands that they defend the law, it's on them to defend it thorougly -- not just throw a hail mary on justiciability and let it go at that.

The real solution, the one with staying power, remains legislative -- at the state and eventually federal levels.

Posted by: moon at June 20, 2009 01:12 PM | PERMALINK

Well I guess we disagree on the imporantace of how you defend it. I can see defending it - but I have a problem with using loathsome arguments toward that end.

Posted by: Armand at June 22, 2009 09:38 AM | PERMALINK

I'm not familiar enough with the brief to more than speculate, but here's an uncomfortable aspect of the situation for someone whose mandate -- for argument's sake -- requires defending a law that has any rational basis: how _else_ do you make the argument that states should be free not to recognize certain marriages contemplated by other states, notwithstanding FF&C, as a matter of individual state's public policies, except by reference to marriages that some people -- likely you and I -- disapprove of. To not jump the shark completely -- by, say, arguing as though anyone's going to recognize marriages between people and animals -- you basically have two examples, as to which there is actual precedent: marriages permitted by one state that another state deems incestuous (first or second cousins, say); and marriages below a certain age threshold with or without parental consent, say 14 or 15 years old. (Obviously, a third is miscegeneration laws.)

Now you and I surely do view gay marriage as more like miscegenation than the other two examples, but is it irresponsible, or loathesome to use your word, if your mandate compels you to argue in defense of DOMA, to cite the other two, more current and probative examples, as the only two serviceable real-world examples one might consider, in fulfulling that mandate? There's caselaw on those, there's scholarship on those, and they illustrate the real-world danger (i.e., it can and will really happen) of demanding that states recognize each other's marriages without regard to how odious the state in question finds them as a matter of clear public policy.

Of course, if you cite those examples, in a perfectly rigorous legal argument, non-lawyers and advocates on the other side will scream "So and so just equated homosexuality with incest and pedophilia," which is utterly preposterous on its face as a matter of rhetoric, and betrays a critical lack of nuance in appreciating the nature of legal argument -- not to mention it amounts to a scurrilous smear on people who may not like it that their job puts them on that side of the issue at all. But that's what happens, and then any ability to have a real discussion gets thrown out the window.

I'm a little slower to pass judgment on DOJ or Obama under the circumstances, because I don't see how else you argue the case, frankly. Granted, I'm sure I would have been more pleased, personally, had they gone the other way, but I remain skeptical that it's in my long-term interests or in the long-term interests of the directly affected community that the administration do so . . . especially if the next case in line has a much better chance of prevailing before this Court.

Posted by: moon at June 23, 2009 01:51 PM | PERMALINK
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