View From Washington Justice

If President Obama hoped the Department of Justice brief that surfaced earlier this week defending "don't ask, don't tell" was an April fool's joke, he was probably sorely disappointed.

When I saw the DOJ brief, the first thing that sprang to mind was the lead of a New York Times article written just after the State of the Union suggesting that Obama decided to end the gay ban specifically so he wouldn't have to defend it in court.

"President Obama and top Pentagon officials met repeatedly over the past year about repealing 'don't ask, don't tell,' the law that bans openly gay members of the military," read the January 31 piece. "But it was in Oval Office strategy sessions to review court cases challenging the ban -- ones that could reach the Supreme Court -- that Mr. Obama faced the fact that if he did not change the policy, his administration would be forced to defend publicly the constitutionality of a law he had long opposed."

Given this week's developments, it's a particularly fascinating account, which made me wonder if the president was as blindsided by this latest Justice installment as he reportedly was by the infamous DOMA brief from last year.

Since I'm not a lawyer, I consulted several to see what they thought of the DOJ defense in this case, Log Cabin Republicans v. U.S.A. And while it's true that Justice does not absolutely have to defend the constitutionality of a law, it's also true that not doing so is extremely rare. Although Obama has said DADT is bad policy and should be repealed, to my knowledge, he has never proclaimed it unconstitutional. So instead of examining whether DOJ should be defending the law, I was more interested in how the department defended it.

Some legal scholars like Dale Carpenter, the Earl R. Larson professor of civil rights and civil liberties law at the University of Minnesota, found the brief less deleterious than last year's initial DOMA defense in the Smelt case.

"As compared to the DOJ's truly offensive brief defending DOMA last summer, which really did go out of its way to insult gays and lesbians and to come up with new rationales for discrimination, this DADT brief is almost as constrained rhetorically and substantively as it could have been consistent with a constitutional defense of the policy," said Carpenter.

While many activists have taken issue with the DOJ attorneys' use of Colin Powell's 17-year-old testimony to make their point, Carpenter thought it was perfectly reasonable given that they were making a "rational basis" case for the law.

"As my old law professor liked to say, the rational basis test means that a law is constitutional as long as some fool can come up with a bad reason for a stupid policy," Carpenter said. "Under this test, it really does not matter that General Powell (or anybody else) has abandoned his earlier views on DADT."

But Diane Mazur, co-legal director at the Palm Center, a think tank on sexual minorities in the military, found the brief extremely troubling on several levels, even calling it borderline unethical because it misrepresented the deposition of two Palm Center witnesses.

"Usually, in a summary judgment brief you are trying to explain to the court that the parties agree about all of the facts, and the only question at hand is what is the legal significance of those facts," explained Mazur, a law professor at the University of Florida. "If you start playing around with what the facts are at that point, there's a serious problem."

According to Nathaniel Frank, one of the Palm Center witnesses and a pro-repeal advocate, DOJ lawyers twisted his testimony to make it appear as if he agreed with the facts being presented by the government.

In the brief, for instance, DOJ lawyers argued that Frank said the privacy concerns of soldiers provide a legitimate rational basis for the DADT policy.

But Frank said that although he was not willing to categorize a person's individual privacy concerns as irrational, "nowhere do I say that those feelings constitute a rational basis to discriminate against gay people."

Mazur viewed the misrepresentation as egregious. There are certainly points in a case, she said, when it's appropriate for attorneys to interpret the testimony of people through more of an advocacy lens. But the summary judgment stage is the wrong platform for that.

"It is outrageous in that setting for a lawyer to try to get a motion of summary judgment granted by shading or misrepresenting testimony," she said.

Beyond the ethical considerations, Mazur felt the brief was a definite step backward for LGBT equality by virtue of the fact that it minimizes the findings of landmark LGBT cases such as Lawrence v. Texas, which overturned sodomy laws nationwide.

"In taking that approach, the administration is going on record saying that Lawrence v. Texas isn't really saying much about the civil rights of gay people," she said.

Ultimately, the Log Cabin suit may not be the case LGBT advocates want to go before the Supreme Court, she said, "but the way the Obama administration is trying to make it go away is causing a lot of trouble."

No matter which way you slice it, the Log Cabin brief is a significant retreat from the advances made in Witt v. U.S. Dept. of the Air Force, in which DOJ let stand a ruling that shifted the burden of proof to the government on whether gay soldiers actually compromise unit cohesion.

"If you were taking the Obama administration at its word that they are moving toward repeal, Witt is actually a perfect intermediate step toward getting there," said Mazur. "The government can no longer rely on this blanket assumption that the presence of gay people is disruptive. It really exposes the inaccuracy of the original assumption."

The difference between DOJ's approach to Witt and the brief filed this week feels borderline schizophrenic, and what exactly motivated the deviation mystifies me. Even though the Civil Division of DOJ is responsible for defending legal challenges to the U.S. Constitution, it does raise the question, What exactly is the department's Civil Rights Division doing? Did Thomas Perez, head of the Civil Rights Division, have the opportunity to weigh in with the head of the Civil Division, Tony West, who was lead attorney listed on both the DOMA and Log Cabin brief?

During a DOJ briefing last December, I asked Perez whether he interfaces with West on civil rights cases important to LGBT people, such as DOMA and DADT.

"The meeting I had just before this was with Tony West," he said. "We have regular coordination meetings with the Civil Division to ensure that we are frequently discussing matters of mutual interest between the Civil Division and the Civil Rights Division. So the Civil Division plays the lead role in the defense of those cases, but we certainly have conversations with them."

Perez added that the Civil Division had been "excellent at being inclusive in terms of ensuring that everybody's viewpoint" is heard within the department. I wonder if his answer would be the same this week.

One thing is clear: Obama's Justice Department is still vigorously defending a law that he, Defense secretary Gates, and Joint Chiefs chair Adm. Mullen have all said must go, while the White House doesn't seem to be in much of a hurry to overturn it based on remarks from Robert Gibbs this week.

As Richard Socarides, former LGBT adviser to President Bill Clinton, noted, "I think it's an outrage that they've got the best and brightest lawyers in Washington working overtime to defend the law when nobody at the White House has an actual legislative plan to repeal it this year."