Joe Sudbay at Americablog, demolishing the argument that the Obama administration had no choice except to defend the Defense of Marriage Act with the brief it filed yesterday:Yesterday, a Democratic President of the United States of America, in the year 2009, and an African-American child of inter-racial parents no less, gave his lawyers the go ahead to compare our marriages to incest on the same day that 42 years ago the Supreme Court ruled in his parents' favor in Loving v. Virginia. And these people, along with our President, are suggesting that the appropriate response is to shrug our shoulders and go home, since, after all, the law is the law?
Sudbay is dealing with a critique that has swept the internet since Americablog published its exposé yesterday of the Obama administration's brief in defense of DOMA. In a nutshell, this critique argues that no one should be either surprised or appalled at the administration's choice to file its brief. It was doing what it's sworn to do: defend the law of the land.
So, despite Candidate Obama's statements about his fierce advocacy for equal rights for gays and lesbians, and despite his statement that equality is a moral imperative, President Obama's administration should be applauded for its dedication to the law and its intent to uphold the law.
As Sudbay notes, this is an extremely naive approach to our legal system, one that overlooks the choices justices and attorneys have about how to apply the law in different ways in different situations, to find precedents that overturn commonly accepted interpretations of the law, and to mount legal battles against unjust laws. Legal codes did not fall down from heaven. They are produced by human communities--and most often by those with power and privilege within a human community to consolidate their power and privilege and to oppress those without power and privilege.
The logic of strict conformity to law that some commentators are now using to justify what the administration has chosen to do would have required this administration in 1860 to defend slavery, even if it had been elected on an anti-slavery platform; to defend Jim Crow in 1890, when a significant number of Americans wanted Jim Crow laws abolished; to uphold legal segregation in 1960, after the moral shortcomings of that system had been decisively exposed by civil rights activists, etc.
In my experiences, phrases like "the rule of law" or "law and order" are seldom the rallying cries of fierce advocates of equality. It's surprising to hear them now circulating around the internet as defenses of an administration that purportedly represents a progressive stance. I think the last time I heard them used so loudly was perhaps in the 1950s and 1960s by Southern political leaders intent on upholding the then law of the land, segregation, and then later by Governor Wallace in Alabama and by Republican leaders as they swept to dominance through their Southern strategy.
I haven't had the luxury of believing that justice is blind or that law and order are value-free legal terms, having grown up in the American South during the Civil Rights movement. And in an attorney's household, where I saw at close hand how the legal system really worked when it came to keeping a subjugated minority in its place . . . .
What apologists for the decision of the administration to defend DOMA are overlooking is the moral dimension that, I keep insisting, has to be in the forefront of this debate. We have come to a moment in our history at which a critical mass of citizens now recognizes that laws excluding gays and lesbians from equal rights are immoral laws, and need to be changed or abolished.
The administration came to office telling us it represented that critical mass and intended to spearhead progressive change--because, those we have now elected told us, it is a moral imperative to make the changes for which this critical mass is appealing on moral grounds.
And what do we now have? An administration not only defending DOMA, but defending it fiercely, advocating fiercely for positions that the religious right has been promoting for some time now in its ugly and immoral crusade to stigmatize and dehumanize gay persons. Not only does the brief link gay marriage and incest, it also seeks to drive a wedge between African Americans and their "legitimate" aspirations to rights and gay Americans and their "illegitimate" aspirations to rights.
This is ugly. It is cynical. And it is immoral. Sudbay is right to point to the ways in which the president's own history and experience should cause him to deplore the immoral cynicism of how his administration is now treating those for whom it claims to be a fierce advocate. He's right also to point to the terrible irony of the administration's choice to release the brief on the anniversary of Loving v. Virginia.
In fact, reading the brief's argument about the difference in the legitimacy of the moral claims of African Americans and gay persons, one has to wonder, God help us, if the decision to release this statement on the anniversary of Loving v. Virginia was a deliberate, cynical choice, one designed to play to churched supporters of the president, both black and white, who will greet the brief with joy because it underscores an invidious (and false) comparison between "legitimate" African-American rights and "illegitimate" gay rights many of them have been making.
The administration most certainly had a choice not to defend legislation it knows is immoral. There are sound historical precedents for choosing not to defend outmoded and/or immoral laws. And even if it felt compelled to do so in the name of upholding law, it had a choice about how to defend the legislation--either faintly and with obvious disdain, or strongly and with relish.
It has chosen the latter tack. It has chosen to relish the pain and marginalization of a group of citizens stigmatized for an innate characteristic that they cannot change and should not be asked to change, as a precondition to being granted rights. And that choice is morally corrupt and will not bring honor to an administration a majority of Americans elected because it promised us hope and progressive change.
