The issue of standing in the Supreme Court's same-sex marriage cases.

Linda Greenhouse explains the 2 standing problems in a way that is accessible to the general reader.

The Windsor case is especially striking, because the plaintiff's stake in the case is knock-you-over-the-head clear and tangible:

Ms. Windsor owes more than $300,000 in federal estate tax on the property left to her by the woman to whom she was legally married in the eyes of New York State. Had she been married to a man, she would have inherited the property tax-free. With DOMA barring the federal government from recognizing same-sex marriage, and the Obama administration taking the position that it will enforce the law until the Supreme Court or Congress tell it otherwise, there certainly seems to be a controversy between the parties sufficient to meet the test of Article III jurisdiction.

But the Obama administration declines to defend the constitutionality of DOMA, and Windsor won in the lower courts, making things nonadversarial, and the federal courts can only resolve actual controversies between the parties. But it's not as if DOMA has gone away. It still affects people, and Congress isn't about to repeal it.

Democrats in Congress wanted no part of defending DOMA, even though the statute had passed both houses in 1996 by big bipartisan majorities and was signed into law by President Bill Clinton. So a five-member House leadership body called the Bipartisan Legal Advisory Group decided, over the objections of its two Democratic members, to take over the executive branch’s abandoned defense of DOMA....

The question in the case is whether this Bipartisan Legal Advisory Group can take over defending the law and thereby preserve the adversarial quality of the case. Obviously, it will be litigated with intensity and excellence. The Group has Paul Clement as its lawyer. But that's not the point in standing doctrine.

If DOMA is unconstitutional, what kind of past employee benefits will need to be paid?

Don't assume the effect of a new decision will be only prospective. Consider this report of a ruling by the Judicial Council of the Ninth U.S. Circuit Court of Appeals:

... Christopher Nathan, 39, of San Francisco, a law clerk for U.S. Magistrate Maria Elena James, sought [health insurance] coverage for his spouse, Thomas Alexander, 40.... [H]e was turned down by the Administrative Office of the U.S. Courts because the 1996 law bars federal recognition of same-sex unions.

In April, Chief U.S. District Judge James Ware said the denial violated the federal court's rules against discrimination based on sexual orientation and gender, and ordered the court to reimburse Nathan for the costs of buying private insurance.

The Judicial Council, the final authority in the administrative review process, went a step further in this week's order and said DOMA has been held unconstitutional by a San Francisco federal judge in another employee's case. The three-judge panel ordered the court [that is, his employer] to determine how much it owes Nathan and then pay him within 10 days.

2d Circuit Court of Appeals holds the Defense of Marriage Act unconstitutional.

This comes in addition to a similar decision from the First Circuit last May.

The case was bought by a woman whose wife — wife, under New York law — had died. The surviving spouse wants to qualify for a deduction in federal estate tax law. Having the marriage unrecognized under DOMA cost this poor woman — who'd been with her partner for 44 years — $363,053 extra dollars in taxes.

Judge Dennis Jacobs, who wrote the majority opinion, said the federal law was “not related to an important government interest,” concluding that “homosexuals are not in a position to adequately protect themselves from the discriminatory wishes of the majoritarian public.”

ADDED: Here's the opinion (PDF). The language quoted above signaled that the court decided to heighten the level of scrutiny to what's called the "intermediate" level (below "strict" scrutiny and above "minimal" scrutiny), and in fact that is what I'm seeing in the text. The court recognizes that The Supreme Court has never explicitly raised the level of scrutiny. It was cryptic in Lawrence v. Texas, and it's nice to see the 2d Circuit openly take on the subject of whether to heighten scrutiny, instead of the usual bumbling along at the minimal scrutiny level:

1. Has this group "been historically 'subjected to discrimination'"? A "yes" here supports heightened scrutiny.

Perhaps the most telling proof of animus and discrimination against homosexuals in this country is that, for many years and in many states, homosexual conduct was criminal. These laws had the imprimatur of the Supreme Court...

2. Does this group have have "a defining characteristic" that "frequently bears [a] relation to ability to perform or contribute to society"? This is a reason not to heighten scrutiny (and it explains why there is no heightened scrutiny for the mentally disabled and for the old).

The aversion homosexuals experience has nothing to do with aptitude or performance.

3. "Is there obvious, immutable, or distinguishing characteristics that define them as a discrete group?" "Yes" here favors heightened scrutiny.

We conclude that homosexuality is a sufficiently discernible characteristic to define a discrete minority class.... [Defendants] argue that sexual orientation is not necessarily fixed, suggesting that it may change over time, range along a continuum, and overlap (for bisexuals). But the test is broader: whether there are “obvious, immutable, or distinguishing characteristics that define . . . a discrete group.”... What seems to matter is whether the characteristic of the class calls down discrimination when it is manifest....  "[T]he Supreme Court is willing to treat a trait as effectively immutable if changing it would involve great difficulty, such as requiring a major physical change or a traumatic change of identity.”

4. Is the group “a minority or politically powerless"?

The question is not whether homosexuals have achieved political successes over the years; they clearly have. The question is whether they have the strength to politically protect themselves from wrongful discrimination. When the Supreme Court ruled that sex-based classifications were subject to heightened scrutiny in 1973, the Court acknowledged that women had already achieved major political victories... The Court was persuaded nevertheless that women still lacked adequate political power, in part because they were “vastly underrepresented in this Nation’s decisionmaking councils,”  including the presidency, the Supreme Court, and the legislature.... [I]t is safe to say that the seemingly small number of acknowledged homosexuals so situated is attributable either to a hostility that excludes them or to a hostility that keeps their sexual preference private--which, for our purposes, amounts to much the same thing. Moreover, the same considerations can be expected to suppress some degree of political activity by inhibiting the kind of open association that advances political agendas....

Analysis of these four factors supports our conclusion that homosexuals compose a class that is subject to heightened scrutiny. We further conclude that the class is quasi-suspect (rather than suspect) based on the weight of the factors and on analogy to the classifications recognized as suspect and quasi-suspect. While homosexuals have been the target of significant and long-standing discrimination in public and private spheres, this mistreatment “is not sufficient to require ‘our most exacting scrutiny.’”

Liberals worry that Chief Justice John Roberts has built up political capital...

... which he will spend next term in what will be conservative decisions on things like affirmative action, voting rights, and same-sex marriage.

1st Circuit says Defense of Marriage Act is unconstitutional.

"The appeals court agreed with a lower court judge who ruled in 2010 that the law is unconstitutional because it interferes with the right of a state to define marriage and denies married gay couples federal benefits given to heterosexual married couples, including the ability to file joint tax returns."

The court didn't rule on [whether] states without same-sex marriage cannot be forced to recognize gay unions performed in states where it's legal. It also wasn't asked to address whether gay couples have a constitutional right to marry.

ADDED: Here is the opinion. After concluding that the equal protection doctrine requires minimum scrutiny (but not "the extreme deference accorded to ordinary economic legislation"), the court switches to discussing federalism. Congress uses the concept of marriage in many federal programs involving taxing and spending, and it normally relies on the states' determinations of who is married, but — the court says — that doesn't mean Congress is required to do so.

The court looks at the 10th Amendment but distinguishes this case from Printz and New York v. United States, which involved Congress commandeering the internal operations of state or local government. And the court looks at the Spending Clause doctrine and finds no limitation, because Congress is merely defining the terms of various spending programs.

However, the denial of federal benefits to same-sex couples lawfully married does burden the choice of states like Massachusetts to regulate the rules and incidents of marriage; notably, the Commonwealth stands both to assume new administrative burdens and to lose funding for Medicaid or veterans' cemeteries solely on account of its same-sex marriage laws. These consequences do not violate the Tenth Amendment or Spending Clause, but Congress' effort to put a thumb on the scales and influence a state's decision as to how to shape its own marriage laws does bear on how the justifications are assessed.

That's quite a sentence! There's no violation of the 10th Amendment or the Spending Clause, but because federal choices affect how states may decide to exercise their powers, the court will give congressional decisions less deference.

In United States v. Morrison, 529 U.S. 598 (2000), and United States v. Lopez, 514 U.S. 549 (1995), the Supreme Court scrutinized with special care federal statutes intruding on matters customarily within state control. The lack of adequate and persuasive findings led the Court in both cases to invalidate the statutes under the Commerce Clause even though nothing more than rational basis review is normally afforded in such cases.

The Supreme Court has made somewhat similar statements about the need for scrutiny when examining federal statutes intruding on regulation of state election processes. Nw. Austin Mun. Util. Dist. No. One v. Holder, 129 S. Ct. 2504, 2511 (2009); cf. City of Boerne v. Flores, 521 U.S. 507, 534 (1997) (calling RFRA a "considerable congressional intrusion into the States' traditional prerogatives and general authority to regulate for the health and welfare of their citizens").

True, these federalism cases examined the reach of federal power under the Commerce Clause and other sources of constitutional authority not invoked here; but a statute that violates equal protection is likewise beyond the power of Congress. See Moreno, 413 U.S. at 541 (Douglas, J., concurring). Given that DOMA intrudes broadly into an area of traditional state regulation, a closer examination of the justifications that would prevent DOMA from violating equal protection (and thus from exceeding federal authority) is uniquely reinforced by federalism concerns.

This is a remarkable move! The enumerated powers cases involve judicial line-drawing about what matters may be governed by federal law and what are left exclusively to the states. The cases about rights concern what is left to individual citizens. It's one thing to say that federalism concerns affect what is governed by federal law and what is left exclusively to the states, quite another to say that the realm that belongs to the individual increases or decreases based on federalism concerns. Our rights are bigger when states have interests and smaller when they don't? The court seems to be creating a hybrid of rights and state interests.

Or we might understand this as an idea about deference to Congress: The question isn't so much whether Congress has power or not, but whether the court will see the lack of power. What the court is doing is looking at all the factors that affect how closely it ought to look at what Congress has done. Although as a matter of doctrine, the official level of scrutiny is minimum — Congress need only have a legitimate interest that's rationally related to the policy it has adopted — the fact that this isn't just economic legislation makes the court look a little more closely and, separately, so does the fact that the states are burdened in an area they have traditionally controlled.

With the degree of scrutiny established, the court goes on to the interests that supposedly support DOMA. One is "preserving scarce government resources."

But, where the distinction is drawn against a historically disadvantaged group and has no other basis, Supreme Court precedent marks this as a reason undermining rather than bolstering the distinction. Plyler v. Doe, 457 U.S. 202, 227 (1982); Romer, 517 U.S. at 635. The reason, derived from equal protection analysis, is that such a group has historically been less able to protect itself through the political process. Plyler, 457 U.S. at 218 n.14; United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938).

Another purported interest is "to support child-rearing in the context of stable marriage," but the court finds "a lack of any demonstrated connection between DOMA's treatment of same-sex couples and its asserted goal of strengthening the bonds and benefits to society of heterosexual marriage."

A third interest is "moral disapproval of homosexuality":

But, speaking directly of same-sex preferences, Lawrence ruled that moral disapproval alone cannot justify legislation discriminating on this basis. 539 U.S. at 577-78. Moral judgments can hardly be avoided in legislation, but Lawrence and Romer have undercut this basis. Cf. Palmore v. Sidoti, 466 U.S. 429, 433 (1984).

Lastly, it was argued that Congress, facing a period of changing state laws, had an interest in "freezing" the law in place, taking "a temporary time-out." But, the court says, DOMA isn't framed as a temporary measure.

If we are right in thinking that disparate impact on minority interests and federalism concerns both require somewhat more in this case than almost automatic deference to Congress' will, this statute fails that test.

Invalidating a federal statute is an unwelcome responsibility for federal judges; the elected Congress speaks for the entire nation, its judgment and good faith being entitled to utmost respect.... 

But what about deference to tradition — the tradition of marriage as the union of one man and one woman? Why can't Congress base its law on that?

Traditions are the glue that holds society together, and many of our own traditions rest largely on belief and familiarity--not on benefits firmly provable in court. The desire to retain them is strong and can be honestly held.

For 150 years, this desire to maintain tradition would alone have been justification enough for almost any statute. This judicial deference has a distinguished lineage, including such figures as Justice Holmes, the second Justice Harlan, and Judges Learned Hand and Henry Friendly. But Supreme Court decisions in the last fifty years call for closer scrutiny of government action touching upon minority group interests and of federal action in areas of traditional state concern.

To conclude, many Americans believe that marriage is the union of a man and a woman, and most Americans live in states where that is the law today. One virtue of federalism is that it permits this diversity of governance based on local choice, but this applies as well to the states that have chosen to legalize same-sex marriage. Under current Supreme Court authority, Congress' denial of federal benefits to same-sex couples lawfully married in Massachusetts has not been adequately supported by any permissible federal interest.

"If we consider this to be a civil right, and I do, I don’t think civil rights ought to be left up to a state-by-state approach."

"I think we should have a national policy on this."

Here comes the pull from the left on same-sex marriage. That's James Clyburn, who ranks 3rd among Democrats in the House.

Marriage is actually unusually hard to handle at the state level — which was why Congress passed the Defense of Marriage Act. If any state permits same-sex marriage, couples who want to marry can travel to that state. Are you going to allow individual states to decide whether to recognize that marriage? DOMA was a decision to say yes, but Obama has said he believes DOMA to be unconstitutional, and he withdrew from defending it in court. Presumably, in appointing federal judges, he hopes to find individuals who share that legal opinion. And the federal government uses marriage status for many purposes. It must either accept the same-sex marriages from the states or not.

So the federalism solution really doesn't work. I know I said — just this morning — that "Leave it to the states is a fine — truly excellent — way to package the issue and set it to the side." It's not as though I'm not aware of the legal problem. I teach the topic in law school classes frequently. It's only that I think the issue can be politically packaged that way. But I must acknowledge that a truly probing questioner would succeed in opening that package back up, and Clyburn is encouraging that inquiry.

"Ann -- Today, I was asked a direct question and gave a direct answer: I believe that same-sex couples should be allowed to marry."

Obama emails:

I hope you'll take a moment to watch the conversation, consider it, and weigh in yourself on behalf of marriage equality:

http://my.barackobama.com/Marriage

I watched. What struck me was how much he struggles to drag the statement out of himself and, specifically, how intently he stared down and to the left. There's some evidence that a person's eye direction indicates whether a person is accessing their memory or making something up. For a left-hander like Obama, looking down and to the left happens when the person is experiencing an internal dialogue — talking to himself.

Back to the email:

I've always believed that gay and lesbian Americans should be treated fairly and equally. I was reluctant to use the term marriage because of the very powerful traditions it evokes. And I thought civil union laws that conferred legal rights upon gay and lesbian couples were a solution.

But over the course of several years I've talked to friends and family about this. I've thought about members of my staff in long-term, committed, same-sex relationships who are raising kids together. Through our efforts to end the "Don't Ask, Don't Tell" policy, I've gotten to know some of the gay and lesbian troops who are serving our country with honor and distinction.

What I've come to realize is that for loving, same-sex couples, the denial of marriage equality means that, in their eyes and the eyes of their children, they are still considered less than full citizens.

Even at my own dinner table, when I look at Sasha and Malia, who have friends whose parents are same-sex couples, I know it wouldn't dawn on them that their friends' parents should be treated differently.

So I decided it was time to affirm my personal belief that same-sex couples should be allowed to marry.

"Affirm" is such a studied word choice. I think he's pretty directly saying I decided to stop lying.

I respect the beliefs of others, and the right of religious institutions to act in accordance with their own doctrines. But I believe that in the eyes of the law, all Americans should be treated equally. And where states enact same-sex marriage, no federal act should invalidate them.

In the end, he's going to leave it to the states. Would he support a federal law to require states to recognize same-sex marriages from other states?
If you agree, you can stand up with me here.

Thank you,

Barack

Lawsuit seeks equal immigration treatment for same-sex couples.

The NYT headline is "Noncitizens Sue Over U.S. Gay Marriage Ban," but both the citizen and the noncitizen are parties to the suits, and I think it's obvious that the claim of the citizen spouse is stronger. Why is one married American citizen treated differently from another married American citizen with respect to the ease with which her/his spouse can obtain legal residence in the United States?

Under [the Defense of Marriage Act], federal authorities do not recognize same-sex marriages, even from states that allow them. In recent years, as same-sex marriage became legal in several states, gay and lesbian couples have come forward to say they were facing a painful choice: either deportation for the immigrant or exile to life in a foreign country for the American.

“I’m a citizen of this country just like anybody else,” said Heather Morgan, 36, a plaintiff in the lawsuit together with her spouse, María del Mar Verdugo Yañez, 42, who is from Spain. After a 13-year friendship that evolved into a romance, the couple was married in August 2011 in New York City, where they live.

What a lovely couple they've chosen as the face of this lawsuit! I'm absolutely unsurprised that the NYT features the attractive female same-sex couple rather than males.

Requiring same-sex couples to marry if they want to keep health insurance benefits they've previously enjoyed with domestic partnerships.

This issue arises in the 6 states (plus D.C.) that allow same-sex marriage.

On the surface, this appears to put the couples on an even footing with heterosexual married couples. After all, this is precisely what they have been fighting for: being treated as a spouse. But some gay and lesbian advocates are arguing that the change may have come too soon: some couples may face complications, since their unions are not recognized by the federal government.

So, when opposite-sex couples decide whether to marry, to the extent that it's an economic calculation, they are weighing a much different set of pros and cons. For example, joint federal income tax returns can save a huge (or cost) amount of money. And under federal tax law, the spouse/"spouse" who receives his/her partner's health benefits has treat the benefit as income and pay tax on it.

If one of the spouses is not a U.S. citizen and is in the country on a temporary visa, the state-level-only marriage "could flag your renewal application and reflect your more permanent decision to stay." Marriage, instead of helping you get to citizenship, would send you in the direction of losing your visa.

What if one spouse is in the military? Getting married violates Don't Ask, Don't Tell, which isn't completely gone yet.

In addition, a state-level-only marriage causes problems if the couple moves to a state that doesn't recognize that marriage (and is entitled, under the Defense of Marriage Act, to decline to recognize the marriage):

Getting a divorce can be complicated, since one member of a couple may have to return to the gay marriage state and live there before their split can be completed.

The employers making the changes [to require marriage to retain benefits] said they spoke regularly with their gay and lesbian employee groups and planned to phase in the requirement. Corning, based in Corning, N.Y., said it would offer a reasonable grace period, though it had not completed the details.

“After waiting so much time for that right, we want them to have the opportunity to enjoy that,” said Christy Pambianchi, a senior vice president for human resources at Corning, which put the policy into effect in New Hampshire and Massachusetts when gay marriage became legal there. She said employees did not raise concerns about the requirement. “They are delighted,” she said.

So the New Hampshire and Massachusetts same-sex couples didn't notice the problem? It took New York. Why was that? Are New Yorkers more legalistic and inclined toward economic analysis? Are they more likely to speak up in their own self-interest even when they are getting something they'd been asking for that's supposed to be good?

Obviously, some same-sex couples are happy to be allowed to get married, but under the law, marriage is a complicated matter. It's not just about pledging your love and devotion. In fact, you can do that without a legal marriage. As Joni Mitchell sang a long time ago: "We don't need no piece of paper. From the city hall. Keeping us tied and true."

Legal marriage is about a whole lot of other things, and the set of things is not the same for opposite sex and same-sex marriage. The decision to get married is a different decision for same-sex couples, and it's not real equality to have to decide between losing your health insurance benefits and entering into the kind of marriage that is works only in at the state level and only in some of the states.

"The excuse that you're not breaking new gossip you're just helping to spread gossip seems like a pretty lame excuse."

Jack Craver — the Isthmus writer who did that hit piece on me — takes some heat for writing "Oh, and Herb Kohl is long-rumored to be gay." That came in the context of talking about whether Congresswoman Tammy Baldwin — who is openly gay — could run successfully for Herb Kohl's Senate seat.

If the question is what counts as outing? then it's not outing to report the existence of well-known rumors. How well-known are the rumors about Herb Kohl?

But the question isn't really how to define the term "outing." It's whether it's whether a journalist should bring up the subject of rumors in a particular context. Here, the context is whether an openly gay candidate will be successful running for an political position now held by a rumored-to-be-gay person. Another context where it might seem justified is reporting the rumored-to-be-gay person's vote on the repeal of Defense of Marriage Act or Don't Ask, Don't Tell.

I think the mainstream norm is to avoid mentioning the rumor and to wait until the person identifies himself as gay — even in those special contexts. Perhaps it depends on how obvious the rumors have been balanced against how gay-related the context is. And the thumb on the scales is: How edgy/mainstream do you want to be?

Isthmus is our "alternative newspaper." We could talk about what that term means. And Craver's on-line writing self-identifies as a "blog," whatever the hell that is.

Why King & Spalding backed out of the DOMA case.

TPM reports:

Sources with knowledge of the backlash confirm that one of King & Spalding's top clients, Coca Cola, also based in Atlanta, directly intervened to press the firm to extricate itself from the case....

Other King & Spalding clients likewise conveyed to the firm that its decision to take the DOMA case could cause them problems, both internally and with customers...

King & Spalding also faced escalating protests from gay rights groups. The LGBT community in Atlanta has significant political influence, and the firm quickly became a target for major gay rights organizations including the Human Rights Campaign and the group Georgia Equality -- the largest gay rights advocate in the state. The groups planned an aggressive ad campaign, direct communication with the firm's clients, and a diminution of its Corporate Equality Index ranking -- the metric HRC uses to track corporate support for gay rights....

Complicating matters for King & Spalding, the firm's contract with the House of Representatives contained a curious provision that seemingly barred firm employees -- even those not involved with the case -- from advocating for gay equality in their private capacities outside the firm, so long as the firm was defending DOMA. Employees, the contract stated, "will not engage in lobbying or advocacy for or against any legislation [to] alter or amend in any way the Defense of Marriage Act."

According to the National Law Journal, "Gay-rights lawyers interpret that to be a gag order for firm employees." That includes one employee, Atlanta associate Brian Basinger, who is president of the Stonewall Bar Association of Georgia, a group that pushes for gay rights.

Former Solicitor General Paul Clement quits King & Spalding over his defending the Defense of Marriage Act.

He writes:

"I resign out of the firmly held belief that a representation should not be abandoned because the client's legal position is extremely unpopular in certain quarters. Defending unpopular clients is what lawyers do... I recognized from the outset that this statute implicates very sensitive issues that prompt strong views on both sides. But having undertaken the representation, I believe there is no honorable course for me but to complete it."

Politico's Ben Smith reported the firm's withdrawal from the case as "a real victory for supporters of same-sex marriage -- and marking what seems like real marginalization for its foes." It quoted the chairman of the firm, Robert D. Hays, Jr., saying: "In reviewing this assignment further, I determined that the process used for vetting this engagement was inadequate." I'd love to hear the gory details.

Anyway, we talked about Clement's role last week, here. I said:

I would like to see the Defense of Marriage Act go, and I encouraged the Obama administration to decline to defend it, but I don't think it's "indefensible," and in fact, it deserves to be defended, and the House Republicans did the right thing in hiring Clement. The country deserves a well-briefed, well-argued case presented to the Supreme Court. The other side is already represented by Theodore Olson, another former Solicitor General. I hope Olson wins, but not because he's the better lawyer. It is absolutely fitting that he be matched with a lawyer of equal stature, skill, and will to prevail.

Obama orders Justice Department to drop its defense of the Defense of Marriage Act.

Politico reports:

“After careful consideration, including a review of my recommendation, the president has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a more heightened standard of scrutiny,” [Attorney General Eric] Holder said in a statement.

“The president has also concluded that Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional. Given that conclusion, the president has instructed the department not to defend the statute in such cases. I fully concur with the president’s determination.”

(Last fall, I was very critical of Obama's willingness to defend DOMA in the courts.)

ADDED: Watch me — last October — criticize Obama for fighting against gay rights in the courts:



Hmmm. October... Had to win some votes back then.

A liberal blogger confronts Barack Obama about gay rights... with tediously grim results.

I'm going to pick apart the transcript from Obama's big meetup with the liberal bloggers. The "Q" is Joe Sudbay of Americablog.

Q ... do you think that “don’t ask, don’t tell” is unconstitutional?

That's exactly what I would ask him. You may remember my dissecting his MTV townhall last week and showing you how evasive he was about that.

THE PRESIDENT: It’s not a simple yes or no question, because I’m not sitting on the Supreme Court. And I’ve got to be careful, as President of the United States, to make sure that when I’m making pronouncements about laws that Congress passed I don’t do so just off the top of my head.

See? Infuriating. He's the President. He took an oath to "preserve, protect and defend the Constitution of the United States" — "to the best of [his] ability." He won the Presidency in part because of his high achievement at Harvard Law School. He accepted responsibility for the U.S. military. His administration is fighting to defend DADT in courts. This issue didn't pop up yesterday, so his answer couldn't possibly be "just off the top of [his] head. He sure as hell better have an answer to the question. This preamble to his answer is therefore either a lie or an outrage.

I think that -- but here’s what I can say. 

Thanks for revealing that you know you are withholding what you really think.

I think “don’t ask, don’t tell” is wrong. I think it doesn’t serve our national security, which is why I want it overturned. I think that the best way to overturn it is for Congress to act. In theory, we should be able to get 60 votes out of the Senate. The House has already passed it. And I’ve gotten the Secretary of Defense and the Chairman of the Joint Chiefs of Staff to say that they think this policy needs to be overturned -- something that’s unprecedented.

That's his canned answer, which was also served up at the MTV townhall. It's completely nonresponsive to the question. 

And so my hope and expectation is, is that we get this law passed. It is not just harmful to the brave men and women who are serving, and in some cases have been discharged unjustly, but it doesn’t serve our interests -- and I speak as Commander-in-Chief on that issue.

If you really believe it is that harmful and unjust, then how do you resist the conclusion, under the case law, that it is unconstitutional? Even at the level of minimal scrutiny, what is the rational basis for this law? You are saying — in so many words — that there is no rational basis, so why do you not conclude that it is unconstitutional? Are you lying when you intone your criticism of DADT, or are you lying when you purport to adhere to the sort of constitutional analysis that is done by the kind of people you nominate to be on the Supreme Court?

Are you trying to say you'd have joined Justice Scalia's dissent in Lawrence v. Texas? Here's Scalia: "What Texas has chosen to do is well within the range of traditional democratic action, and its hand should not be stayed through the invention of a brand-new 'constitutional right' by a Court that is impatient of democratic change. It is indeed true that 'later generations can see that laws once thought necessary and proper in fact serve only to oppress,'; and when that happens, later generations can repeal those laws. But it is the premise of our system that those judgments are to be made by the people, and not imposed by a governing caste that knows best." Hello? That's what Obama is saying about Don't Ask, Don't Tell.

Back to the transcript:

Let me go to the larger issue, though, Joe, about disillusionment and disappointment.

Oh, yes! The larger issue is how people feel about Barack Obama. Constitutional rights just aren't that large compared to the grand question of Me. And apparently Joe doesn't have the nerve to stop the President and point out that there has been no answer to the question. The President has called him by name and wants to talk about his feelings.

I guess my attitude is that we have been as vocal, as supportive of the LGBT community as any President in history....

But no other President directly inspired the hopes of gay people and won big support with promises like you did. You're not even saying that you're better than all those other Presidents, only that none of them were any better. Your support for "the LGBT community" is as good as George Washington's. Thanks a lot.

On “don’t ask, don’t tell,” I have been as systematic and methodical in trying to move that agenda forward as I could be given my legal constraints, given that Congress had explicitly passed a law designed to tie my hands on the issue.

Admit it: You love having your hands tied like that. Because you're fighting against a legal decision that deemed DADT unconstitutional! The rope of legislation was untied, and here you are begging for other judges to tie you back up again. Don't ask me to believe you don't love the bondage.

And so, I’ll be honest with you, I don’t think that the disillusionment is justified.

I'll be honest with you... Speaking of Don't Ask, Don't Tell. That's a "tell." He's lying. "I’ll be honest with you" means I'm about to lie to you.

Now, I say that as somebody who appreciates that the LGBT community very legitimately feels these issues in very personal terms. So it’s not my place to counsel patience. One of my favorite pieces of literature is “Letter from Birmingham Jail,” and Dr. King had to battle people counseling patience and time. And he rightly said that time is neutral. And things don’t automatically get better unless people push to try to get things better.

Speaking of time, he's really trying to run the clock out on this interview. He's also, I imagine, ashamed of what he finds himself needing to say. He wants to identify with King, but he knows he's on the wrong side of King when he asks gay people to wait longer. Obama sounds like an old man rifling through his memories for something relevant to say. He calls “Letter from Birmingham Jail" "[o]ne of my favorite pieces of literature" — as if it's all about him and people who are waiting for their rights to be recognized are fascinated by what pleasure reading he enjoys. Under the circumstances of this conversation, “Letter from Birmingham Jail” is or should be nagging at his conscience. ("Now is the time to lift our national policy from the quicksand of ... injustice to the solid rock of human dignity.")

So I don’t begrudge the LGBT community pushing...

Begrudge! That he would even think of that word suggests these people are annoying him!

... but the flip side of it is that this notion somehow that this administration has been a source of disappointment to the LGBT community, as opposed to a stalwart ally of the LGBT community, I think is wrong.

The short answer to Sudbay's original answer was: Don't Ask.

Q So I have another gay question. (Laughter.)

THE PRESIDENT: It’s okay, man. (Laughter.)

I am resisting typing curse words here. Look at Sudbay abasing himself. Now these rights he must care about are reduced to jocose "gay questions." Something to laugh at. There indeed was a time, and it was not too long ago, that the idea of gay rights itself seemed funny to people. And Sudbay allows himself to get pushed back toward that place. The President treats the remark as if it were an apology. He says "It's okay, man." Man. See? He's a cool guy. He's taming Sudbay.

Q And this one is on the issue of marriage. Since you’ve become President, a lot has changed. More states have passed marriage equality laws. This summer a federal judge declared DOMA unconstitutional in two different cases. A judge in San Francisco declared Prop 8 was unconstitutional. And I know during the campaign you often said you thought marriage was the union between a man and a woman, and there -- like I said, when you look at public opinion polling, it’s heading in the right direction. We’ve actually got Republicans like Ted Olson and even Ken Mehlman on our side now. So I just really want to know what is your position on same-sex marriage?

Another good question. Sudbay came prepared. Let's see if he lets Obama push him back again.

THE PRESIDENT: Joe, I do not intend to make big news sitting here with the five of you, as wonderful as you guys are. (Laughter.) But I’ll say this --

Q I just want to say, I would be remiss if I didn’t ask you this question.

THE PRESIDENT: Of course.

Q People in our community are really desperate to know.

Oh, don't beg, Joe. Don't apologize.

THE PRESIDENT: I think it’s a fair question to ask. 

That's big of him.

I think that -- I am a strong supporter of civil unions. As you say, I have been to this point unwilling to sign on to same-sex marriage primarily because of my understandings of the traditional definitions of marriage.

Check out those weird plurals: understandings of the traditional definitions. That's another tell. He is lying, I presume. His opposition to same-sex marriage is, quite simply and obviously, politically expedient. It is impossible for me to believe that Obama, coming from his academic background, is hung-up on the traditional definition — or "definitions" — of marriage. He's posing as a seeker of truth, slowly coming round.

But I also think you’re right that attitudes evolve, including mine. 

Attitudes? I thought he was into traditional definitions.

And I think that it is an issue that I wrestle with and think about because I have a whole host of friends who are in gay partnerships. I have staff members who are in committed, monogamous relationships, who are raising children, who are wonderful parents.

So is he saying that previously he had an attitude that was antagonistic to gay people and by extensive social contact with gay people, he came around to perceiving them as fully human? I just don't believe that. And if I did, I would think less of him.

And I care about them deeply. 

You know, your position on the rights of others should not depend on whether they are your friends. That's not the way law works. People have rights whether you care about them or not. And rights don't spring into existence because you care about the people who want them.

And so while I’m not prepared to reverse myself here, sitting in the Roosevelt Room at 3:30 in the afternoon, I think it’s fair to say that it’s something that I think a lot about. That’s probably the best you’ll do out of me today. (Laughter.)

Laughter. Oh, it's so lovely sitting with the President in the Roosevelt Room. Something that I think a lot about. Men have thought more clearly in jail.

Later, the conversation comes back to DADT, and the President intimates that he will try to push its repeal during the lame duck session of Congress. He makes an effort to shift the blame to the Republicans, especially John McCain, and he indicates that it will be a problem getting the votes for cloture. (He loves that problem, I'll bet. It's so helpful to appear to want to act and have your hands tied.)

He wonders why the Log Cabin Republican are pursuing their court case, when they could instead try to get a few Republican Senators to vote for repeal. He says he doesn't "understand the logic of" using the courts when you could go to Congress, but of course he does. People conceive of their equality in terms of their individual rights — which don't depend on the support of political majorities and supermajorities. As a Harvard-trained lawyer and sometime law professor, he knows that. He knows why people go to courts. I don't buy his understanding of the logic. Or should I say his understandings of the logics?

‎"Did I mention I'm fighting against your constitutional rights in court?"

(The quote that is the post title was written by my son Chris as he posted this video on Facebook.)

Hillary says: Don't kill yourself.

I can only imagine the impression this makes on a young, gay person who actually is suicidal. I'm old, heterosexual, and an immense fan of staying alive. But I can't see why would it would help to hear this dreary, robotic intonation of conventional advice from a representative of an administration that is fighting, in courts, against the rights of gay people to serve in the military and to marry.

ADDED: "Tomorrow will be better"... that's the message. I note the red dress. Why not:



AND: I think that song really makes you want to stay alive. Look:



There's so much room for personal taste. To each his own. For love partners and for things that stimulate the will to live.

"As a policy matter, the President has made clear that he believes DOMA is discriminatory and should be repealed" — but his Administration must continue the fight against gay rights.

The Obama administration will appeal the decision from a district court in Massachusetts that the Defense of Marriage Act is unconstitutional.

The appeal comes at a tough time for Obama, who has been trying to shore up his liberal base ahead of the contentious congressional elections when his fellow Democrats are expected to lose many seats to Republicans. Democrats could lose control of the House of Representatives.

A key concern has been whether those who have supported Obama in the past will show up to vote in the November 2 midterm elections. He has opposed same-sex marriages but supported civil unions and extended some benefits to gay partners of federal employees.

To be fair, in his 2008 campaign, Obama said he was opposed to same-sex marriage. But, of course, people who wanted to believe he embodied the hope that they wanted to hope believed that he really, secretly, supported same-sex marriage. And he opposed DOMA:

As your President, I will use the bully pulpit to urge states to treat same-sex couples with full equality in their family and adoption laws. I personally believe that civil unions represent the best way to secure that equal treatment. But I also believe that the federal government should not stand in the way of states that want to decide on their own how best to pursue equality for gay and lesbian couples — whether that means a domestic partnership, a civil union, or a civil marriage. Unlike Senator Clinton, I support the complete repeal of the Defense of Marriage Act (DOMA) – a position I have held since before arriving in the U.S. Senate

If you brightened at that February 2008 statement, did you perceive that if a court said the same thing — that DOMA is antithetical to federalism principles and to equality — that Obama would fight against that court decision? Obama only supports Congress repealing DOMA — did you notice that at the time? — and if Congress — the new Democratic Congress — applies its first burst of power in 2009 to other matters...  well, too bad. Vote for them again in 2010 and maybe they'll do something for you some day. The arc of history is long!

But heaven forbid that the courts rouse themselves to the point where they strike down the statute. Did Obama ever give you the impression that he believed that courts should be in the forefront, protecting the rights of the oppressed and downtrodden — that courts ought to have "the empathy to recognize what it's like to be ... gay"? Did you take that empathy remark the wrong way? To say a judge should "recognize what it's like" is not to say the judge should perceive that you have rights and actually enforce them. You silly voter!

Remember how it felt in '08 when Obama won? Remember stuff like "Barack Obama: America's First Gay President"?

Because if Barack Obama follows through with even half of the promises he made to the LGBT community during his campaign, he'll have done more to advance gay rights in this country than any President before him – combined.

Remember how it felt in 2009, in the first spring of Obama's power? The NYT had an article titled "As Gay Issues Arise, Obama Is Pressed to Engage." My reaction was:

How can he rake in votes just by seeming to care about the rights and interests of gay people? Not even seeming all that much — he's against same-sex marriage! — but just by stirring hopeful feelings and looking like somebody who cares. Well, he's already done it once. Why shouldn't he believe that what worked once will work again?

That was written in May 2009 — Springtime for Obama — and now it's Fall 2010. Things aren't so warm and sunny anymore, and now is when he needs to maximize the votes. Most Americans oppose gay marriage, and he can't alienate them, so won't you gay people (and you people who support them) continue to do what you're supposed to do and vote for those Democratic candidates? You know the Republicans won't help you. That's the grubby argument.

***

A reading from the word of Obama:

I will never compromise on my commitment to equal rights for all LGBT Americans. But neither will I close my ears to the voices of those who still need to be convinced. That is the work we must do to move forward together. It is difficult. It is challenging. And it is necessary. Join with me, and I will provide that leadership. Together, we will achieve real equality for all Americans, gay and straight alike.

"The federal government, by enacting and enforcing DOMA, plainly encroaches upon the firmly entrenched province of the state..."

"... and, in doing so, offends the Tenth Amendment. For that reason, the statute is invalid."

Wrote federal district judge Joseph Tauro. In a second case, he said DOMA violates equal protection.

Andrew Sullivan presents — without cynicism — Bill Clinton's explanation of why he's now for same-sex marriage.

And the explanation is a big, verbose mush:

I think, what made me change my mind, I looked up and said look at all of this stuff you’re for. I’ve always believed that—I’ve never supported all the moves of a few years ago to ban gay couples from adoption. Because they’re all these kids out there looking for a home.... So I said, you know, I realized that I was over 60 years old, I grew up at a different time, and I was hung up about the word. I had all these gay friends, I had all these gay couple friends, and I was hung up about it. And I decided I was wrong.

That our society has an interest in coherence and strength and commitment and mutually reinforcing loyalties, then if gay couples want to call their union marriage and a state agrees, and several have now, or a religious body will sanction it, and I don’t think a state should be able to stop a religious body from saying it, I don’t think the rest of us should get in the way of it. I think it’s a good thing not a bad thing. And I just realized that, I was, probably for, maybe just because of my age and the way I’ve grown up, I was wrong about that. I just had too many gay friends. I saw their relationships. I just decided I couldn’t, I had an untenable position.

Clinton is a master blabber, but what did he say? He's not even for a right to marry, only for leaving it up to the states: "if gay couples want to call their union marriage and a state agrees...." He's only implicitly admitting that the Defense of Marriage Act — which he signed — was wrong. He doesn't even apologize for what he did back when he had actual power to do something. He's presenting it all as a personal journey of his. He's older and wiser. Bleh!

Clinton signed DOMA when he thought it was in his political interest, and I suspect he thinks it's in his political interest now to embrace same-sex marriage. I can understand Sullivan enthusing over whatever high-level support he gets for his big cause, but I would find him a much more interesting writer if he would shine a sharp, critical light on everything.

Obama's DOJ defends the Defense of Marriage Act.

On federalism grounds.

"DOMA does not address whether a same-sex couple may marry within the United States," the motion says. "Instead, it permits the citizens of each state to decide that question for themselves."