Mercury Rising 鳯女

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Archive for June 17th, 2009

Punching People’s Buttons

Posted by Phoenix Woman on June 17, 2009

John Aravosis, who we last saw fomenting hatred against then-DNC Chair Howard Dean for getting rid of one gay DNC worker and replacing him with another, has done it again. His framing of the DoJ’s brief against the Smelt DOMA challenge (a framing that even a critic of the brief finds questionable) ignores some basic facts, facts that you have to read Laurence Tribe to find out:

As someone who wants to see DOMA dismantled and invalidated, I would love it if this ninth circuit case would evaporate into the ether.

Even though I personally believe that DOMA is unconstitutional, I think that this particular lawsuit is very vulnerable; it’s not anywhere near as strong as the one that was brought in the federal district court in Massachusetts [a suit filed by Gay and Lesbian Advocates and Defenders].

In an environment where the Supreme Court is still quite conservative, what makes a suit a strong one is that it finds a point of entry in which it’s possible to invalidate a law in a number of its applications by using more of a scalpel that might appeal to five justices rather than a bludgeon that will almost certainly ask more of the court than it is willing to do.

What’s strong about the Massachusetts case is that these are concrete situations of people who are legally married under the laws of states like Massachusetts or Vermont, and who are being discriminated against by the federal government with respect to federal benefits simply because they are same-sex couples. There’s no other difference between them and other couples in that state, and the court could agree with that without accepting any of the broader theories advanced in the [Smelt] lawsuit in the central district of California, which is basically a bet-the-farm lawsuit that almost dares a conservative Supreme Court to slap it down.


There are ways for the president to get rid of DOMA. He can advocate for its repeal, he can eventually urge the solicitor general to join in a more surgical attack, but he certainly isn’t obliged to go along with every plaintiff who brings a lawsuit.

The important point here is that the solicitor general traditionally seeks to dismiss lawsuits against federal laws whenever there is a plausible basis to do it. A lot of the outcry about the administration’s position doesn’t take that institutional reality into account.

Meanwhile, Obama shows off his evil homophobic side by hiring gay activist John Marble to work for openly-gay John Berry at the Office of Personnel Management, the Federal government’s human resources division. In addition, by the time you read this, Obama will have likely signed a presidential memorandum that has been in the works since around the time Berry was nominated to become the director of OPM, a memorandum that will provide benefits to same-sex partners of Federal employees, as many as can currently be provided by law (and yes, DOMA, which will have to be overturned by the Congress that created it, sits like a big toad blocking many key benefits).h

Posted in gay rights, President Obama, Supreme Court, WTF? | 1 Comment »

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