This is a president also who is attempting to pave the way for same-sex marriage in our nation by refusing through his attorney general to defend the Defense of Marriage Act. I will defend that Act...This is crowd-pleasing rhetoric, certainly to South Carolina Republican primary voters. It is also a campaign promise he's repeated, and one on which he no doubt will attempt to follow through. But like alll of Romney's plans for America, it is also made with little, if any, thought to the real-world application and implications. It's an interesting exercise to visualize exactly how this Romney administration goal to gallop to DOMA's defense would actually play out—particularly since the fate of the 1996 law is currently at the 10-yard line.
Last week, the House of Representatives' Bipartisan Legal Advisory Group petitioned the U.S. Supreme Court to review the constitutionality of DOMA in Gay And Lesbian Advocates And Defenders' (GLAD) Gill v. Office of Personnel Management case. The law has failed the constitutional test twice in this case and many times in others.
The Supreme Court's decision to hear or not hear the case could be returned any time around election day, give or take a few weeks. (It is very likely to return an affirmative response.) Placing the case in the 2013 docket could make initial briefs and preparing for oral arguments one of the more pressing priorities of the incoming administration's Justice Department.
So, exactly what role our federal government plays in these cases is not some far-off hypothetical; it is—right now—imminent decision time. And these are decisions already well-made by the current administration. It remains to be seen how—or even if—they can be undone in the space of a few short months.
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Since the February 2011 decision to no longer defend DOMA, the Obama Justice Department can only be described as aggressively helpful in equality advocate's efforts to dispose of this law.
The DOJ has gone above and beyond just dropping their defense. The department has profferred the opinion that DOMA fails constitutional review. Last week, the DOJ even took the highly unusual step of arguing the Ninth Circuit appeal of Lambda Legal's Golinski v. Office of Personnel Management should leapfrog the appeal court to be heard next at the Supreme Court. There is presumably a desire to bundle it in some way with deliberations on the similar Gill case.
The DOJ has filed amicus briefs in support of challengers in a handful of cases across the country. The 31-page brief submitted on behalf of Karen Golinski's challenge, can without irony be described as "fierce advocacy" for the LGBT community's claim of heightened scrutiny of laws affecting them.
Romney has promised his Christian fundamentalist supporters that his administration can un-ring these bells. They'll certainly try, but that is often difficult to do in the course of court proceedings. These briefs submitted and opinions offered by the DOJ are already a part of each case's history. As such, they won't be stricken from the records that justices review, regardless of what happens in November.
What would the nine justices make of (yet another) abrupt 180-degree turn? What weight does the Department of Justice's opinion hold when they'll have lower court, perhaps even preliminary, briefs that are completely contradictory to the Romney administration's opinion? Worst case scenario? The case approaches the SCOTUS with dueling DOJ opinions.
In the Golinski amicus brief filed in July 2011, the DOJ made the argument that the LGBT community satisfied one standard of the suspect class definition, that they had, as a minority, been historically subjected to political disenfranchisement and animus-fueled backlash:
Efforts to combat discrimination against gays and lesbians also have led to significant political backlash, as evidenced by the long history of successful state and local initiatives repealing laws that protected gays and lesbians from discrimination.And:
The strong backlash in the 1970s, 1980s, and 1990s to these civil rights ordinances has been followed in the 2000s with similar political backlashes against same-sex marriage.Would the nine justices entertain that the DOJ's abrupt, new position reflects a new understanding of the law and the Constitution? Or would the new position in support of DOMA only illustrate that gays were at that very moment, in that very court, experiencing the same politics-driven backlash the Obama Justice Department described?
In the big picture, DOMA's goose is pretty well cooked, it's almost time to put a fork in it. At this point, Romney's intention to pick up the defense of the Defense of Marriage Act is a promise to interject much chaos in a process that has been unfolding rather slowly and deliberately, but in one direction only.
If Romney were to follow through, it likely would create scores of questions about how the cases would proceed. Can the DOJ reinsert itself as a party for the defense? Can standing be relinquished and re-asserted, particularly so late in the proceedings? How do the justices weigh completely contradictory opinions coming from the same institution? How should the court proceed in initial briefs and oral arguments if an abrupt turnaround occurs between petitioning the case and acceptance of the case?
While Romney is reluctant to entertain this topic at length, President Obama is on record calling for passage of the Respect for Marriage Act, which would repeal DOMA. There is talk in DC that a run may be made at Congressional repeal efforts. Polls show repeal is supported by 51 percent of Americans and opposed by only 34 percent. Obama, having spent a chunk of political capital endorsing marriage equality really has nothing to fear in having the conversation, and even has proven himself to be very persuasive on the topic.
Obama is on the winning side of history, the winning side of countless legal cases, the winning side of the moral questions and the winning side of both Democratic and independent voters. Romney is merely pandering to a noisy contingent of his own base.
Romney's Catch-22 is satisfying that base without drawing too much attention to a topic he seems reluctant to discuss in detail because it is a topic that is a general election loser for him.
Is Mitt Romney's promise to go backwards really a priority for the American people?
Preserving DOMA means preserving the current policy that disenfranchises our active and retired military service members from sharing benefits with their same-sex partners. Is this a policy candidate Romney really agrees with? Did the GOP response to a question on LGBT equality from active-duty Capt. Stephen Hill in Iraq really play out well for the GOP in the national conversation? OutServe/SLDN has literally hundreds more active and veteran servicemembers like Capt. Hill standing by to dispatch to the media if the Obama team needs a friendly surrogate. It's certain they'll make a strong case Obama's team is on the right track to a more just America.
Capt. Stephen Hill served his country in Iraq and was booed for asking to be treated equally.
Now, he and his husband are suing the Federal government to make it so.
It's also rather certain candidate Romney has not given much thought to all this beyond assuring the Christian fundamentalists and his new BFF homophobe Bryan Fischer that they will all get what they seek from his administration.
But these are questions the press might explore with the candidate about his imminent plans. This is also a topic Romney has shown himself testy about engaging outside the fanatical Religious Right echo chamber where he apparently feels more free to speak. The rest of America needs to hear it too.
Romney should not be permitted to duck giving substantial answers to how, if DOMA remains, he'd resolve the inequality people like Mary Ritchie and Stephen Hill experience.
Kinda guessing Romney doesn't have a plan for that one either.