No, this is not a repeat from six months ago. Or nine months ago. But it might as well be.
Considering that Obama opposes the Defense of Marriage Act in speeches, then goes to court to argue that it's a perfectly reasonable, valid and necessary law, it really should come as no surprise that yesterday Obama's lawyers at the Department of Justice submitted to a federal court yet another defense of Don't Ask Don't Tell as a rational government response to the sinister homosexual agenda of workplace equality within America's largest employer, in the case of Log Cabin Republicans v. Defense Secretary Robert Gates.
So far, President Barack Obama has fiercely advocated against gay rights in court each time the issue has arisen.
How this distinguishes Obama from an avowedly anti-gay president is only in the amount of deception: Obama is the bigger liar.
Speaking of deception, not one, but two experts on the DADT policy deposed by Obama's Department of Justice say their testimony was manipulated and misrepresented by DOJ attorneys so that the reader of the government's Log Cabin brief is left with the false impression that those experts seem to endorse things that they actually do not. Nathaniel Frank, a senior fellow at the Palm Center says, "I really said the opposite of what the DOJ motion claims." Likewise, Aaron Belkin, director of the Palm Center said, “they completely misrepresented my statement in the deposition.”
These are very serious allegations — ones that would get a private lawyer called in for a disciplinary hearing.
The Log Cabin brief also cites in support of the DADT law General Colin Powell's 1993 testimony about his beliefs regarding gay soldiers' potential to disrupt unit cohesion — beliefs Powell very publicly disavowed weeks before the brief was submitted.
Another thing happened a few weeks before the Log Cabin brief was submitted. President Obama, during his State of the Union Address, asserted before Congress and the American public that DADT unfairly denies gay citizens their rights, and repeal of the law is "the right thing to do."
I leave it to you, dear reader, to determine why Obama is diligently attempting to have yet another lawsuit challenging the constitutionality of DADT thrown out of court, even as he obliquely concedes its unconstitutionality and claims to be diligently working on the law's repeal.
Maybe you're thinking the Log Cabin brief was written by some DOJ holdover appointee from the Bush administration. If so, you'd be wrong. It's the product of Assistant Attorney General Tony West, a San Francisco attorney and Democratic fundraiser appointed to head the DOJ's civil litigation division by President Barack Obama.
Perhaps not coincidentally, AAG West is also the author of the infamous pro-DOMA brief filed in the case of Smelt & Hammer v. United States that argued that it's perfectly reasonable for the federal government to refuse to recognize the fundamental right of gay American adults to marry the adult partner of their choice on the same basis that states won't recognize marriages between adults and children or marriages between close relatives. President Obama thoughtfully tacked on this personal message:
Today, the Department of Justice has filed a response to a legal challenge to the Defense of Marriage Act, as it traditionally does when acts of Congress are challenged. This brief makes clear, however, that my Administration believes that the Act is discriminatory and should be repealed by Congress. I have long held that DOMA prevents LGBT couples from being granted equal rights and benefits. While we work with Congress to repeal DOMA, my Administration will continue to examine and implement measures that will help extend rights and benefits to LGBT couples under existing law.
What...? Fuck you. That doesn't even sorta make sense. I believe DOMA is discriminatory and violates the Constitution's Equal Protection Clause, even though I'm arguing exactly the opposite in court. The law is certainly unjust, but sorry, my interest in tradition trumps your need for justice. Don't worry, I'm studying the issues and pretending to repeal DOMA. Seriously, that's his insane defense of the indefensible. And as it turned out, by "extending benefits under existing law" he meant "I'll be damned if I let some federal judge order me to allow some California dyke put her wife on a federal Blue Cross plan."
Naturally, President Obama doesn't feel compelled by tradition to enforce or defend every law, just the ones he finds inconvenient or harmful to...y'know, decent people. For example, federal immigration law required deporting an illegal alien military widow because she wasn't naturalized by a legal deadline. He didn't enforce that one, which is nice. Federal law requires busting medical marijuana dispensaries, but he won't do that either, which is good. Obama has also used "signing statements" on multiple occasions to articulate which portions of a given federal law he intends to ignore. Presidents Reagan, Bush, Clinton and W didn't feel compelled to defend every law they disagreed with either. Ferchrissakes, Marbury v. Madison was precipitated by President Thomas Jefferson ignoring part of a law he disagreed with as a matter of policy, and SCOTUS basically agreed he had the right to do so.
So "tradition" my aching ass.
Ultimately, in each case the Obama administration argues before the federal bench that discrimination against gays is a legitimate government objective, and laws specifically targeting gays for discrimination are the rational way for the government to accomplish that legitimate discriminatory objective.
The federal bench pretty much uniformly accepts this logic, because the "rational basis review" generally applied in gay Equal Protection cases has come to mean the court will either accept or invent some half-assed rationalization justifying the existence of the contested law. As you might imagine, that interpretation renders the word "rational" nearly as devoid of meaning as the word "review."
That analysis is also an incorrect understanding of how the standard of review was intended to be implemented. A law fails rational basis review when the law itself is irrelevant to achieving a legitimate governmental objective, or when the objective itself is invalid.
Since the president has conceded publicly, again and again, that the discriminatory purpose of DADT and DOMA are invalid, I wonder why some clever federal judge somewhere hasn't asked of one of Obama's lawyers or his solicitor general why they shouldn't be estopped from making arguments inside a courtroom that they've disavowed outside the courthouse.
I would, but I'm kind of a dick like that.
At the very least, some of these gay rights attorneys ought to be making that point in their own briefs.