A reader writes:
I have to say you are out of line here. You characterize the "author" of the DOMA brief as a Bush holdover, and as a devout Mormon. Here is the takedown on each point. First, I actively campaigned for Obama in four states and did not hide the fact I was for him in the election, but under your standard, I am a "Bush holdover" simply because I was hired during the Bush Administration. You incorrectly conflate civil servants like me with political appointees, as if Bush hand picked us all. Total misunderstanding of the hiring process here. So just because the author was hired under Bush means nothing.
Second, as to him being the "author," you make it sound like one trial attorney drafts a brief and files it, and that his is the only mind that touches the brief, the only pen employed. But on a brief of this importance, others see drafts and approve them. That would include political appointees--those appointed by Obama. Third, for this reason, your "devout Mormon" comment is also misguided. Ignoring the implied slur in that observation, he may be a devout Mormon, but the people who undoubtedly had say and input into the brief probably were not.
Here's the broader point, and I want you to consider this: The Department of Justice is obligated to defend the law. Not disregard it when a President or an Attorney General doesn't like it, not issue signing statements getting around it, not ignoring it. We have been down that road, and that way lies madness. Obama, Holder, the "author" you named in your post, me -- we all took an oath to uphold and defend the law. Like it or not. The government may change its position on a defense of the law, but only where it is clear that the law is no longer defensible from a legal perspective. You may not like the policy behind DOMA -- I surely do not. But if I were tasked with writing that brief I would do what I expect any civil servant trial attorney and their reviewing superiors at the Department of Justice would do (and what any good lawyer should do): Ask whether there is a defense against the lawsuit, and, if there is, then ask what arguments can be made to zealously represent the client, the United States, in the lawsuit. That is our obligation and our oath.
I do not know the man, or work with him, but having read all the briefs and pleadings in the case, it appears to me that W. Scott Simpson did exactly what he was supposed to do. It seems to me that he and those above him who approved the brief acted to uphold the law. Shouldn't that be celebrated at long last?
I take those points and have made some of them myself. I've removed the link to Simpson's webpage and the reference to his religion. It's unfair to make such an inference; and I'm sorry. I also understand the need to defend existing law. But the zealous defense of DOMA - including repeating countless spurious and unnecessary slurs against gay people - need not be a lawyer's duty. It is a choice by his political superiors. It is not the fact of this brief, it is its contents and rhetoric that sting. They did not have to go this far.
In trying to understand why the Obama administration would seek to go to such lengths to make arguments embraced by James Dobson I tried to give them the benefit of the doubt. I was probably wrong. The more I learn the clearer it is that this was a conscious decision by Obama's DOJ to use evey conceivable argument to kill any constitutional attack on DOMA. At the same time, they are clearly committed to doing nothing in the foreseeable future to enact any redress for those couples currently denied their civil rights. On top of this, they obviously did nothing to prepare gay couples or any gay leaders for this swipe at them. Why? Are relations that broken? Some judicious explanation ahead of time would surely have been in everyone's interest. But again, one gets the impression that for the Obama administration, gay people are a burden, a distraction and a bore.
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