Yet Again
by digby
I assume that most of those who read this blog are following the reaction to the administration's inexplicably bigoted defense of the DOMA yesterday. If not, you can catch up all over the blogosphere as people weigh in with justifiable dismay and anger.
Americablog has, unsurprisingly, been leading the charge. And if you read nothing else on this issue, read this piece by Joe Sudbay. Here's a short excerpt:
Yesterday, a Democratic President of the United States of America, in the year 2009, and an African-American child of inter-racial parents no less, gave his lawyers the go ahead to compare our marriages to incest on the same day that 42 years ago the Supreme Court ruled in his parents' favor in Loving v. Virginia. And these people, along with our President, are suggesting that the appropriate response is to shrug our shoulders and go home, since, after all, the law is the law?
So, yes, I am advocating that we push the envelope and demand new and creative thinking on legal issues, on our civil and human rights. That's how change happens (there's that pesky word again). That's what we expect from our President who promised change, who promised to be a "fierce advocate" for our rights.Yesterday's homophobic brief would have met the expectations we had from George Bush (or Jerry Falwell). From President Barack Obama, it was an appalling betrayal of our humanity, and his own.
It's important that people keep in mind that there is often a difference between justice and the law. Lately, we are seeing this sort of creeping, legalistic literalism in a number of different ways, such as when people rebuke Bush and Cheney for torture with a simple "because it's illegal, that's why."
What if it weren't? Would that make it ok?
I think we are about to find that out as we see the administration asking the congress to retroactively legalize secrecy on the photos, (on the heels of the Bush administration having the congress "legalize" the Guantanamo policies under the ultimately reversed MCA.) We all rightly excoriated the "unitary executive" theory as being an unconstitutional usurpation of power, but that was only half the story. What the unitary executive used his theory for was equally important. If congress had signed off on every one of Bush's War On Terror policies in detail it still wouldn't have made them just or proper under the constitution.
And likewise, merely because an unjust law is on the books doesn't mean that it's right for the DOJ to defend it, particularly with the kind of inflammatory and (one hopes) disingenuous arguments used in the brief. This isn't God's Law we're talking about (assuming there were such a thing.) This is just a system set up by human beings to create an orderly and (hopefully) just society. Separating justice from the law makes the law nothing more than an arbitrary exercise in power. (I recognize that it is that mostly anyway, but there's no reason to legitimize that by saying that anything goes as long as it's "legal.")
If he really felt constrained by the law in this case, Eric Holder could have simply argued that the couple in question didn't have standing and let it go at that. The other arguments were gratuitous and seem to me to be designed to form a strong legal bulwark in favor of the law rather than setting the stage for reversing it. Which brings us to the politics.
Needless to say, after so many slights, snubs and various betrayals it's pretty hard to deny that the LGBT community is being used as a pawn in the president's "outreach" to social conservatives. It's a cruel dismissal of a strong and loyal constituency on an issue of fundamental civil rights. I can't defend it and I don't know how the administration is going to keep defending it. And it won't buy them a single vote, I guarantee it.
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