As a presidential candidate, Barack Obama claimed "we need to fully repeal the Defense of Marriage Act," which says states are not required to recognize other states' same-sex marriages.
That was then. This week, the Obama administration is facing the ire of gay rights groups after it filed a brief in California federal court defending the Defense of Marriage Act and calling it a "valid exercise of Congress' power" that is saving taxpayers money.
The Defense of Marriage Act, or DOMA, was signed into law by President Clinton in 1996. It doesn't prohibit same-sex marriages; instead, it says that no state "shall be required" to honor same-sex marriages taking place elsewhere or any "right or claim arising from such relationship."
Two married California men, Arthur Smelt and Christopher Hammer, sued the federal government to overturn DOMA. They claim that it violates their constitutionally-protected rights to travel, their rights to free speech, and their due process rights.
The U.S. Justice Department's brief doesn't address the morality of same-sex marriage. Instead, it makes the narrower legal argument that DOMA "merely permits each state to follow its own policy with respect to marriage" and the law "does not restrict any rights that have been recognized as fundamental." It also says that it saves money by not paying out marriage benefits under federal law, a move that "preserves scarce government resources."
Here's what the Human Rights Campaign, Lambda Legal, the ACLU and other groups said in a joint statement on Friday:
We are very surprised and deeply disappointed in the manner in which the Obama administration has defended the so-called Defense of Marriage Act... The administration is using many of the same flawed legal arguments that the Bush administration used. These arguments rightly have been rejected by several state supreme courts as legally unsound and obviously discriminatory.
We are also extremely disturbed by a new and nonsensical argument the administration has advanced suggesting that the federal government needs to be "neutral" with regard to its treatment of married same-sex couples in order to ensure that federal tax money collected from across the country not be used to assist same-sex couples duly married by their home states. There is nothing "neutral" about the federal government's discriminatory denial of fair treatment to married same-sex couples: DOMA wrongly bars the federal government from providing any of the over one thousand federal protections to the many thousands of couples who marry in six states.
It's true that the Justice Department is generally tasked with defending acts of Congress. Then again, Bill Clinton's DOJ refused to defend the abortion speech-related provisions of the 1996 Communications Decency Act, and a law mandating criminal penalties for giving paid Medicaid planning advice. Gay activist and Washington lawyer John Aravosis notes other examples of DOJ declining-to-defend.
If Mr. Obama felt strongly enough, or Attorney General Eric Holder believed DOMA was execrable enough, the DOJ could have taken a similar position in court here. At least the president could have coupled his administration's brief of DOMA with a speech calling on Congress to repeal it.
Neither, of course, happened. That led Aravosis to write:
It is an outright lie to suggest that the DOJ had no choice... Where in the law does it say that Obama was required to compare gay marriage to incest? And putting that little bit of religious right messaging aside, even if they "had" to file the brief against us, why didn't they just file a brief that argued the technicalities about why the case should have been thrown out (e.g., the plaintiffs had no standing)? No, what Obama did was throw the legal kitchen sink at us in a brief that could have been written by Antonin Scalia. They argued that DOMA is constitutional. Worse yet, they argue that it was a reasonable, rational, good law that actually saves the government money.
(Legally speaking, the DOJ didn't compare gay marriage to incest, and that word doesn't appear in the brief. What it did was make a lawyerly argument that "the courts have widely held that certain marriages performed elsewhere need not be given effect," including not recognizing a marriage of an uncle to a niece that took place in Italy, "because they conflicted with the public policy of the forum.")
This isn't the first time Obama has drawn criticism from gay rights groups. His campaign platform said "we need to repeal the 'don't ask, don't tell' policy."
But the president has been silent on the topic since. Last month, The Atlantic blogger Andrew Sullivan wrote: "We are in the same spot as in every Democratic administration: the well-paid leaders of the established groups get jobs and invites, and that's about it. Worse: we will get a purely symbolic, practically useless hate crimes bill that they will then wave in our faces to prove they need do nothing more."
A recent opinion article in the Wall Street Journal written by a gay man who served as an Army Ranger said: "He promised a full repeal of the ban if he was elected. But President Obama seems to be backing down from this pledge."
In hindsight, perhaps, it should be no surprise that Mr. Obama is shying away from this front in the cultural wars. He broke faith with liberal supporters over warrantless wiretaps, the repetition of the Bush administration's arguments on "state secrets," and the continuation of the Bush administration's indefinite military detentions of terrorism suspects.
The surprise should be that some supporters seem to have confused a politician's campaign promises with his actual policies.