Obama Admin Hearts DOMA (For Now). Do Gays Still Heart Obama?

Though pro-gay rights activists unaffiliated with the gay rights establishment have been increasingly vocal about their objections to the administration's allergy to quick action on gay rights, that establishment -- the major gay money players, the major gay rights lobbying groups -- have been largely silent. (Yes, a few of their spokespeople have made statements, but there's a difference between making a statement and taking a stand.) 

Obama won't fast track Don't Ask, Don't Tell. His administration isn't pressuring Congress to act quickly on gay rights initiatives. Obama has so far failed to find a way to grant federal benefits to couples with civil unions or state-sanctioned marriages.  

That might change.

Now, in a legal brief submitted to a federal judge, Obama's Department of Justice, writing in the name of the United States government, whose CEO is Barack Obama, argues that the 1996 Defense of Marriage Act is appropriate, carefully balanced and justified by reason, and not by animus toward gay people. A lot of the same rhetoric used to justify actual discrimination against gays is cited in the brief as a reason why DOMA is necessary. (Child abuse precedents, all of that.) The brief even resorts to the argument that DOMA doesn't deny gays anything because they're still entitled to all the benefits that heterosexuals get -- if they act heterosexually. The brief also suggests that gays accessing federal benefits will be free riders.

Needless to say, studied silence by gay groups, who have been counseled by the White House to be patient, seems to giving way to out-loud expressions of anger. (That this weekend marks DC Pride shouldn't be overlooked; gay people are in a mood to celebrate their status as persons.)

The Department of Justice insists that Obama wants Congress to change DOMA (he called it "abhorrent" during the campaign), but in the absence of a new law, the government is duty-bound to enforce the laws of the land unless they are clearly unconstitutional. This is the same argument the administration is using to justify its aggressive defense of the states secrets privilege. Joe Solomnese, the president of the Human Rights Campaign, said in a statement that if Obama wants to change the law, he should send legislation repealing DOMA to Congress. He won't do that.

Gay rights activists believe that Obama thinks the best way to fully integrate gays in the political and social fabric of the country is to do so by building consensus, rather than by setting an example that would expose the president to political risk. On Don't Ask, Don't Tell, the argument is much more subtle, but it follows the same theme. 

Here's Solomnese:

Mr. President, you have called DOMA 'abhorrent' and pledged to be a fierce advocate for our community.  As we approach the 40th anniversary of Stonewall, it is time for you to use your leadership to translate these principles into meaningful action.

The response from Obama aides has generally been a version of the following: Trust us. We're doing what we can. We'll get this stuff done. But it will take some time. We've got a lot on our plate.

"Note that the standard for defending a statute, once enacted, is lower than whether, in our judgment, it is constitutional," a senior administration official said. "It is whether there are arguments that can be made. The DOMA statute has been found constitutional by at least 6 courts and has never been struck down. Whatever we think, it would be pretty hard to say that there are not 'reasonable arguments' with that context."
Presented by

Marc Ambinder is an Atlantic contributing editor. He is also a senior contributor at Defense One, a contributing editor at GQ, and a regular contributor at The Week.

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