News
2009-06-12
The Other Side of
Justice 
The Department
of Justice filed a brief Thursday defending the
Defense of Marriage Act, and our original coverage
is available here
.
Below are excerpts from
an int
The Department
of Justice filed a brief Thursday defending the
Defense of Marriage Act, and our original coverage
is available here
.
Below are excerpts from
an interview conducted with Harvard professor Laurence H.
Tribe, who firmly believes DOMA is unconstitutional and would
like to see it overturned, and yet is grateful that the DOJ
filed a motion to dismiss the legal challenge posed by the
ninth circuit court case,
Smelt v. United States.
Why
Smelt
posed a weak legal challenge to DOMA:
As someone who wants to
see DOMA dismantled and invalidated, I would love it if this
ninth circuit case would evaporate into the ether.
Even though I
personally believe that DOMA is unconstitutional, I think that
this particular lawsuit is very vulnerable; it's not anywhere
near as strong as the one that was brought in the federal
district court in Massachusetts [a suit filed by Gay and
Lesbian Advocates and Defenders].
In an environment where
the Supreme Court is still quite conservative, what makes a
suit a strong one is that it finds a point of entry in which
it's possible to invalidate a law in a number of its
applications by using more of a scalpel that might appeal to
five justices rather than a bludgeon that will almost certainly
ask more of the court than it is willing to do.
What's strong about the
Massachusetts case is that these are concrete situations of
people who are legally married under the laws of states like
Massachusetts or Vermont, and who are being discriminated
against by the federal government with respect to federal
benefits simply because they are same-sex couples. There's no
other difference between them and other couples in that state,
and the court could agree with that without accepting any of
the broader theories advanced in the [
Smelt
] lawsuit in the central district of California, which is
basically a bet-the-farm lawsuit that almost dares a
conservative Supreme Court to slap it down.
A strategic Justice
Department interested in a litigation strategy that has some
realistic chance of success certainly would not have taken [the
Smelt
] case as the one in which the constitutional vulnerabilities
of DOMA should be explored.
Defending congressional statutes:
Under the traditions of
the solicitor general's office, the government does have an
obligation to provide a defense in any lawsuit where there is a
plausible argument to be made, even if the president does not
agree with the law.
There certainly are
cases where the government declines to defend the law, but
those are few and far between. If congress were to pass a law
that flew directly in the face of a binding Supreme Court
precedent -- a law outlawing early-term abortion or a law
providing for "separate but equal" schools -- the
obligation of the Justice Department to the Constitution would
trump its obligation to defend the laws of congress.
But DOMA is in a gray
area where there are experts like me, who think it's
unconstitutional, and you can find experts who hold the
opposite view, and it's certainly not a slam-dunk.
There are ways for the
president to get rid of DOMA. He can advocate for its repeal,
he can eventually urge the solicitor general to join in a more
surgical attack, but he certainly isn't obliged to go along
with every plaintiff who brings a lawsuit.
The important point
here is that the solicitor general traditionally seeks to
dismiss lawsuits against federal laws whenever there is a
plausible basis to do it. A lot of the outcry about the
administration's position doesn't take that institutional
reality into account.
It doesn't surprise me
very much because I understand the frustration of some of the
groups. They have lived under the burden of DOMA, of "don't
ask, don't tell," for a long time, and they understandably
hoped that this would be an administration that would side with
them on these issues.
And I think the
frustration of having to wait so long for a progressive and
intelligent president who, nonetheless, occasionally does some
things that people find disappointing on matters that cut
deeply into where they live -- it's understandable that would
lead to some strong reactions in this case.
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