Thursday, May 14, 2009

Time to 'Defend' DOMA? Removes Repeal from Civil Rights Goals

WorldNetDaily, edited by a founder bent on "taking back America" from the liberal elites, is no great friend of gay rights or Barack Obama.

It should come as no surprise, then, that "the fiercely independent newssite committed to hard-hitting investigative reporting" can barely contain its manic glee in reporting Unhitched! White House scrubs marriage promise: Obama's pledge to homosexuals disappears from official agenda.

The report appears to convey accurately how the White House website has changed.

According to WorldNetDaily, the Civil Rights page at used to say that the 1996 Defense of Marriage Act (DOMA) needs to be repealed so that "the 1,100+ federal legal rights and benefits currently provided on the basis of marital status are extended to same-sex couples in civil unions and other legally-recognized unions."

It now says more generically that President Obama "supports full civil unions and federal rights for LGBT couples and opposes a constitutional ban on same-sex marriage." The Civil Rights page confirms that this is the current wording.

However, I suspect what the report has totally missed is the most likely reason for the change and its timing: that the White House is strategizing how to 'defend' the constitutionality of DOMA against a federal lawsuit filed against DOMA by GLAD "on behalf of eight married couples and three surviving spouses from Massachusetts who have been denied federal legal protections available to spouses." I covered the significance of the lawsuit here on April 28th.

The lawsuit puts a president who wants to repeal DOMA in the dicey position of having to defend it. Yet it gives the president a tempting opportunity: he could easily sink DOMA by having his Solicitor General simply concede in court that GLAD is right--that DOMA deprives legally married same-sex couples of the equal protection of federal laws that apply to married people. But Obama almost certainly will not yield to that temptation, because it would drive social conservatives back into the Republican Party at a time when he needs them to accomplish other important items on his agenda.

What he is more likely to do is have the Solicitor General offer a tepid defense of DOMA--which is, after all, about the best even the most dedicated government attorney could achieve--and let the federal courts sink DOMA on its own demerits. It would be, to put it politely, awkward to have a White House that is 'defending' DOMA still attacking it on its website. But eliminating mention of Obama's specific opposition to DOMA makes perfect sense if the White House thinks it can play into GLAD's hand. That would allow Obama to accomplish DOMA repeal yet divert conservative wrath to the judiciary.

If I am right about this strategy, it's worth acknowledging that it is not risk-free. The courts--and especially the Supreme Court, if it comes to that--may not agree that DOMA is as constitutionally bereft as GLAD and other progressives think it is. But the risk is probably worth taking, because it could accomplish Obama's DOMA objectives without putting other major reforms in jeopardy. If GLAD does not succeed, there will still be time to work on legislative reversal of DOMA down the road.

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