We're not doomed! (On DoJ appeals of DADT/DOMA)

[HughMoran]

by Serpents Choice
Wed Oct 13, 2010 at 09:09:13 AM PDT

Yesterday there was a diary that blasted Obama for failing in his stated desire to be a "fierce advocate" of gay rights because the DoJ had filed an appeal of the district court decision finding DOMA unconstitutional. I posted a fairly lengthy comment on why this appeal was not only expected but desirable, and it was suggested that the Daily Kos community might benefit from a longer diary on the topic.

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The DADT case is weirder. Log Cabin Republicans v. United States of America was heard by the United States District Court for the Central District of California. There was actually considerable pre-trial wrangling over the standing issue; LCR managed to produce one (and later, a second) person in the district who were affected by the law. As with the DOMA case, the judge here found for the plaintiffs. Where this gets weird is that she authored an injunction barring enforcement of the law by the military as a whole. Her ruling doesn't actually provide any sort of explanation as to why she's attempting to enforce a district court decision outside the boundaries of her district. If forced to guess, I'd assume the idea is that it would be impossible to enjoin DADT for central California without stopping it everywhere. I'm really not sure that injunction, in its current form, will survive appeal though; it's possible that this case will be stalled in the courts if the 9th Circuit tells her to try again, and not overreach her jurisdiction this time... Regardless, yes, this is going to be appealed (and I'm sure we'll see another round of "Obama throws gays under bus" blog posts and diaries).

We want these cases to be appealed. I know that the Supreme Court at the moment is no Warren Court (although they're much better on civil rights than corporate issues). But remember from above, appealing these cases is the only way (short of a working Congress) to get rid of these laws. In fact, back in August, GLAD even stated that they looked forward to an appeal in Gill, which will provide "the chance to argue in front of a higher court with a broader reach... an opportunity to address the harms DOMA Section 3 causes to already married couples across the country." A DoJ that didn't appeal would mean that we could get wins in places like Massachusetts, but that it would be even harder and take even longer to fight these laws in other states -- we'd need new plaintiffs to start with, and we'd have to go through the often years-long process of a federal lawsuit in what would likely be less rights-friendly venues. Frankly, I would more have expected to see a refusal to appeal had the Republicans succeeded in turning the DoJ into an annex of their party; refusing to appeal Gill would have let them write off marriage law in Massachusetts as a lost cause while making it harder to attack the status quo elsewhere and giving them a wedge issue for later elections.

I'm not an apologist for Obama, and I'm not at all sure I can view him as a "fierce advocate" of gay rights (or much of anything, sadly). There are a LOT of things I think he could have done or handled differently, but appealing the DADT/DOMA cases isn't on that list. In fact, Rep. Lamar Smith (R-TX) has asked to be named a defendant-intervenor in the DOMA case. He believes that the government is actually on our side, and is intentionally throwing these cases in order to get the laws overturned. He wants to be able to defend them in place of the DoJ. That's what happened in California, where the state refused to defend Prop 8. The DoJ's defense in Gill was not what I'd call robust (they called no witnesses), but I still don't think there's any chance that Smith will be granted defendant-intervenor status. Still, remember that there are mechanisms out there to prevent the government from just throwing away laws it doesn't like without having them go through either the legislative or judicial process to remove them.

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http://www.dailykos.com/story/2010/10/13/92357/007
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The diary entry is quite a good read - please read the entire article.