Yesterday's diary by Jed Lewison, pimped by BarbinMd today on the front page,caused me to reflect on my own experience of almost 10 years, once upon a time, serving as an Assistant Attorney General. The linked pieces reference the positions taken by the Obama Justice Department in Smelt v. United States, a challenge to the constitutionality of the federal, deplorably named, invidiously discriminatory, Defense of Marriage Act. The Obama Administration is taking criticism for filing a brief defending DOMA's constitutionality.
As Jed noted, the Obama Administration points out that it has an obligation to defend DOMA. Damn right. Just as an accused criminal gets a free lawyer from the public defender's office (and this offends many on the Right) a federal statute accused of being unconstitutional gets a free lawyer from the Justice Department. Rule of law demands it.
One of the oldest and most important jobs assigned to the United States Attorney General by the U. S. Code is the defense of statutes challenged as being unconstitutional. Even in a lawsuit between private parties, if one of them seeks a ruling against the constitutionality of a statute, a notice to the Attorney General must go out so that the government can intervene to defend the law. Federal court rule of civil procedure 5.1 bars a court from ruling against the constitutionality of a federal statute unless the Attorney General gets the required notice and opportunity to intervene to defend the statute.
This means that by law, the Attorney General, absent exceptional circumstances such as a case of obvious, legally indefensible, facial unconstitutionality, will zealously and within the bounds of the law defend any statute challenged in court as unconstitutional, even something of such repugnant purpose as the Defense of Marriage Act. Congress has a legitimate Constitutional expectation that the Executive Branch will defend against challenges to Congressional enactments, given the President's oath to preserve, protect and defend the laws of the United States.
If rule of law prevails, neither the political views of the public nor any segment thereof, nor of the President nor of the Attorney General nor of the Assistants assigned to handle the case, will make any difference at all in how the government goes about defending the constitutionality of its own statutes. It often falls to Justice Department lawyers to defend even bad laws.
Government lawyers will ordinarily defend a challenged statute with any arguments having any possible merit based on either existing law or extensions or modifications of existing law. They don't get to pick which side to be on. It's their job to come up with the best precedent and the best arguments in favor of their client's position, that is, that the law is constitutional.
In Smelt v. U.S., the Justice Department has more than ample, possibly meritorious arguments for dismissal. On the direct question of DOMA's constitutionality, one quite strong argument by the Attorney General is based on the Full Faith and Credit Clause, U.S. Const. art. IV, § 1, cl. 2. The 2nd sentence of the clause explicitly empowers the federal government to resolve conflicts of laws issues between states, and the Defense of Marriage Act is just such a statute. A statute that explicitly exercises a power expressly granted to Congress in the Constitution is particularly difficult to challenge as facially invalid under some other part of the constitution. There remains hope, though, because DOMA is not really facially neutral. Some day an equal protection challenge probably, will overturn DOMA.
For now, though , even if rule of law had instead broken down in Obama's Justice Department and politics did influence the government's position in the Smelt brief, we'd probably be looking at exactly the same brief. The Smelt case doesn't present the kind of case that friends of LGBT civil rights should think suitable for eventual success in overturning DOMA. The case is shot through with procedural weaknesses that, even if overcome at the dismissal stage, would so limit the evidence available for trial as to very likely doom the challenge to DOMA and accomplish nothing but make more bad precedent.
If some case does ultimately succeed in overturning DOMA, it will unavoidably involve balancing of the effect of the 2nd sentence of the Constitution, art. IV, Sec. 1, cl. 2 against the effect of the Equal Protection Clause. In the meantime, Smelt seems destined to die a procedural death, as did a previous case by the same plaintiffs, where the 6th Circuit Court of Appeals affirmed dismissal by the trial court.
We who want DOMA overturned on constitutional grounds, want just the right case for the challenge. A good Equal Protection case requires careful selection of appropriate plaintiffs combined with meticulous record building with mountains of evidence, of the kind undertaken by Thurgood Marshall and the NAACP in the 1940's and 1950's or the kind apparently intended by Ted Olsen and David Boies in their challenge to Prop 8.
Ultimately Congress will repeal DOMA or courts will declare it unconstitutional. My money is on the courts, but it will take years more to happen. Meanwhile, stories like this will continue to pop up, unavoidably, and we will hear about them from the large numbers who are bird dogging just about every case out there, reading tea leaves and hoping to divine where the Obama Administration really stands on LGBT issues or thinking they've figured it out and the news is bad.
But it's dangerous to attach political significance to every legal maneuver by the Justice Department in cases of LGBT interest. If rule of law is truely restored to the Justice Department, then political considerations will not influence the legal arguments made in cases like Smelt. Genuine progress on LGBT civil rights will not spring from a failure to restore rule of law at the Justice Department. Any perceived disconnect between the political positions of the Obama Administration and the actions in particular lawsuits by Justice Department attorneys must always be more apparent than real if the Department is functioning properly. Remember what it was like under Bush when that wasn't happening.
I remain convinced that President Obama remains committed to repeal of Don't Ask, Don't Tell, for example, but will exercise to the fullest his extraordinary political skills to do so most effectively and least disruptively, given reactionary influnces lingering amongst the armed forces and, more so, in the world of politics. One such political skill is timing and the President can be expected to choose his time carefully.
Likewise, I believe the President opposes DOMA and would like to see it repealed. However, given the other demands upon his agenda, and despite the obvious injustice of continued discrimination against LGBT Americans, I have to accept that these issues haven't reached the top of the Presidential to do list. Meanwile, I continue to hope for more and speedier progress on these important problems.