by Patrick Appel
I don't want to fail to praise the administration for doing better, but to some degree the only reason this is "good" is because of how "bad" they did on the previous brief. In the end, they're still defending a discriminatory law that the president himself has called "abhorrent." The fact that they're doing it more tactfully is, I suppose, nice - and they are no longer using language that undercuts us on a variety of other civil rights, so that's good - but again, we're praising them for no longer doing things that they shouldn't have done in the first place. And in the end, they're still defending discrimination.
Aravosis argues that the Obama DOJ doesn't have to uphold legal precedent by citing this Richard Socarides post. The main point:
[In] a case where, as here, there are important political and social issues at stake, the president’s relationship with the Justice Department should work like this: The president makes a policy decision first and then the very talented DOJ lawyers figure out how to apply it to actual cases. If the lawyers cannot figure out how to defend a statute and stay consistent with the president’s policy decision, the policy decision should always win out.
This sounds a whole lot like Bush's manipulation of the DOJ and OLC. I'd like DOMA repealed as much as anyone, but pursing policy changes by manipulating the DOJ is not the best way to get this done. Dale Carpenter's post on the original brief stuck the right balance.