The President’s position on marriage isn’t the only thing that’s “evolving.” So is his strategy to destroy it. While Americans were buying sparklers and hamburger buns, the Department of Justice (DOJ) took advantage of the holiday weekend to file an explosive brief in a Defense of Marriage Act (DOMA) case. Although the timing escaped the country’s attention, it didn’t fool legal experts. “[T]he [Justice Department] was not eager to call attention to it,” wrote David Stout–a suspicion confirmed when the DOJ refused to publish the filing on its website. The woman at the heart of the case, a Ninth Circuit Court of Appeals lawyer, sued the government for denying her “wife” health insurance. Attorneys for the House of Representatives (the same ones who took over DOMA’s defense when Obama would not) argued that the suit should be dismissed.
The Obama administration disagreed. In its radical brief (so radical that the San Francisco Chronicle said it ” reads like a gay rights manifesto“), the President’s attorneys argue that the marriage law is unconstitutional because it was motivated by “hate.” That will surprise the 85 Senators, 342 House members, and President Clinton who supported it. More importantly, it might stun the majority of Americans–and prospective Obama voters–who still believe in marriage as the union of a man and woman. As someone who knows the political advantages of supporting man-woman marriage, I question the wisdom of any candidate who calls more than half the country “haters” on the eve of their reelection campaign. Is it “hateful” to think an age-old institution shouldn’t be changed on the whim of a vocal minority? Obviously, this administration is dramatically shifting its agenda. Not only has it left DOMA defenseless–but its attorneys are joining the attack. As the AP points out, the Obama brief “is the first court filing in which [the DOJ] urged the court to find the law unconstitutional.” In other words, the DOJ is encouraging the court to engage in judicial activism by ignoring its own legal precedent!
Unfortunately for Americans, California’s judges weren’t finished making news yesterday. Despite the fact that Congress is still debating the “Don’t Ask, Don’t Tell” repeal democratically, a three-judge panel of the Ninth Circuit Court of Appeals decided to stick its nose in Washington ‘s business and fast-track the implementation. Yesterday, judges ordered the government to stop enforcing the ban on open homosexuality immediately–muddying the waters of an already complicated process. For the last several months, the armed forces had been evaluating how best to implement the change. Instead of letting them do their job, the court usurped the role of Congress, the President, and military leaders in setting policy. Now the Pentagon’s plans have been thrown into complete chaos as the military scrambles to comply with the ruling. Of course, nothing would make this President happier than having the courts to blame for the “Don’t Ask, Don’t Tell” repeal. When the military implodes with the problems of his coming out party, Obama will have the perfect political cover. With the service chiefs more and more reluctant about how to integrate homosexuals, Obama is clearly looking to circumvent what is already a flawed process. But in doing so, the President is shirking his responsibility to defend a process that he started. It’s incumbent on the commander-in-chief to see the certification through–not wash his hands of it and make the military victims of judicial activism.