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This has to be quick because it is Friday night and I am still at work (working for you, dear citizen), and I have a major brief, but I cannot let some of the misimpressions I have read on this site about Obama on the Defense of Marriage Act ("DOMA") go without response.

I am an attorney, and I am a federal government attorney.  I am here to say that Obama is keeping a promise with regard to DOMA, just not one you are thinking about in your haste to call him out as having abandoned the GLBT community by filing a brief arguing in support of DOMA.

Here's the promise you claim he is breaking: By defending DOMA in court, he is breaking his promise to fight for gay and lesbian rights.  He is breaking a policy promise.

I think that is incorrect.

Rather, here's the promise he is keeping: He is keeping his promise that he will serve and act as President as if America is a nation of laws, which it is.  He is keeping his promise to uphold the law.  

Let me start by saying I understand the frustration about Obama's promises regarding gay equality, particularly in the area of DADT.  You are right to scream from the rafters that you think he is not keeping his word.  You are right to scream that he is not keeping his word on any host of issues.  That relates to policy promises, and I don't have a comment on that in this diary.  Whether he is keeping his policy promises is a different issue.  

I want to address the brief filed in support of the Defense of Marriage Act.  That Act preceded Obama.  He inherited that law.  It was on the books when he came into office, and because it has been challenged, he and his DOJ have an obligation to defend the law if there is a legal basis to defend it.  

That's exactly what I want my President to do.

Consider this hypothetical:

A Democratic Congress passes a gay marriage act, permitting gay marriage.  It is signed into law by a Democratic President.  A few years later a Republican President is elected.  The gay marriage act is challenged in federal court.  What should the President, or, more precisely, what should the DOJ do in that situation?  

(a)  Consider whether there is merit to the lawsuit, and whether the Act is legally defensible.  If it is defensible under the law then the DOJ should defend the law, even if they disagree with it.  Remember: this means a Republican DOJ must defend a law establishing gay marriage because there is a reason to defend against the lawsuit attacking the law; or

(b)  The DOJ should determine whether the law is good policy, and, if it is not good policy in the eyes of the Republican President or his Administration, they should not defend it.  Even if it is defensible.  Remember: This means the law dies in a courtroom, despite it being a legally defensible law, all because the Republican President promised to fight gay marriage.  Sorry, Congress, better luck next time.

Answer b is what we did for 8 years.  Oh, maybe we didn't do it by not defending lawsuits against arguably valid laws.  Maybe we did it more frequently with signing statements that said, "Well, forget the law, I'll interpret it my way."  Or simply by ignoring the law; or refusing to apply it.  

I think I know how this community felt about that.  

Because what happened the last 8 years was this: We were a nation of men, or, more precisely, a handful of men.  If Cheney, Yoo, Addington, Feith, Bush, and the rest didn't like a law on policy grounds...well, we can just ignore it.  

I don't care if it is DOMA, or FISA, or whatever.  The law is the law, and the executive must apply it and defend challenges to it, if it is legally defensible.  (The Americablog assertion that Presidents routinely and frequently simply decline to defend enacted laws in Court is wrong for reasons far too numerous to entertain here, and on the occasions it has happened without good justification, I submit those Presidents were wrong, too).

The point is:  The man I voted for told me he would return us to a nation of laws, not of men.  That means we follow (and apply, and defend--or else it means nothing) the law.  Regardless of the whims or policy desires of the man in the chair.  Because he is bound by the law, too.

Have you all forgotten this so soon?

So rail about breaks of promises where policy is concerned; you should and you must petition your government for a redress of those grievances.  We all must.  We must use our voices to make Obama change the policy, make him change the law, make Congress change the law.  Everywhere we think it needs changing.  Hold his feet to the fire on those campaign policy promises, and beat him up when he doesn't.  

But for God's sake, don't beat him up when he (and his DOJ) does his Constitutional duty--a duty ignored for 8 years--and defends and upholds the law.

That's the change--the fundamental change we needed: we needed a President who understood his obligation to uphold the law (like the law or not).  

That's what I voted for, anyway.  And that is, as the position on DOMA shows me, what we got.

Go forth and do good.    

Originally posted to LarsThorwald on Fri Jun 12, 2009 at 03:34 PM PDT.

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