On the DOJ’s gay-hostile brief filed in a Defense of Marriage Act case, Andrew Sullivan and his readers/cohorts seem baffled. What was Obama Thinking? Is it a Bush-era holdover brief? Is he playing some game with eliminating “don’t ask, don’t tell”?
I want to suggest an alternative to those I’ve read. When I look at the brief and it’s very nearly absurdist anti-gay arguments, I’m thinking this is one big softball for some court to create a new 14th Amendment gay equality right.
I don’t deny that the arguments are offensive to many gay people, especially in their use of vivid language. However, as legal reasonng, they are a hoot and a knee slapper. Nevertheless, they also state the legislative record behind the statute, IIRC the Senate “debates.” Remember the now-gone GOP senators who voted for the beast?
Not even a conservative court would have an easy time accepting these arguments. At the least, these arguments will be judicially rejected in whatever decision comes from the Courts. In the case, I think this one is headed for the 9th Circuit, the most unpredictably left wing of those appeals courts. These arguments are tailor made to a response of “disparate treatment” under the 5th and 14th Amendments. A refusal of a right of marriage sounds also to me like one of the “badges” of slavery, which would be an interesting argument to make. (Cf. Lawrence, Loving)
Obama wouldn’t be the first president to hide behind the courts, oh so reluctantly as it will turn out.
Blogblah