On a crucial issue, the matter of parenting, the DoJ's DOMA-support brief argues that gays and lesbians are just plain folks

It's worth noting that even as it defends DOMA, the
DoJ brief is explicitly distanced from such sentiments.

by Ken

As I wrote what follows, I realized that it sounds mostly like (yet another) Bad News post. In fact, it's a Sort of Good News post. It just takes awhile to get to the sort-of-good news.

By now we're used to the grim spectacle of the Obama Justice Dept. rising to the defense of appalling federal laws, laws the administration claims to oppose, undergoing challenge in the courts, and we all know the explanation: It's just the way things are done. If duly legal federal laws are challenged in the courts, we're told every time, the administration of the moment is expected to defend them as long as there's a reasonable legal justification.

We've also established that this isn't exactly law, more like custom -- you know, the thing to do. And we also know that there's a fair amount of question as to how invariable the practice has been. I don't know that anyone has come up with a long list of challenged laws that Republican adminstrations have defended despite their ideological disagreement. Perhaps it's just that no one's gotten around to compiling that list. It's also pointed out each time out that if a (nominally) Democratic administration fails to honor the custom, just wait and see what a Republican one will do, although my own (purely intuitive) hunch is that the next right-wing Republican administration is going to do just whatever its predecessors have done: whatever it damn well pleases.

Beyond the fact of the administration jumping to the defense of hateful laws, there has been, in the case of the Obama DoJ, exception taken to the vociferousness of the defenses provided, which has seemed to go well beyond the call of duty, incorporating language that it's all too easy to see right-wing judges (and especially justices) incorporating in opinions affirming the hateful status quo, even purporting to pay deference to the arguments of the administration -- in "hey, they said it, not us" fashion.

So it seemed like yet another enactment of this upsetting ritual when, like clockwork, the DoJ jumped into the fray of the appeal. On CBS News's "Political Hot Sheet" blog on Friday, Stephanie Condon posted a nice summary of where we are, beginning:

Gay Rights Groups Angered by Justice Department's DOMA Defense

The gay rights community is pressing President Obama to take a bolder stance in favor of gay marriage after the Justice Department on Thursday filed a brief defending the Defense of Marriage Act.

Mr. Obama says he is opposed to the Defense of Marriage Act (DOMA), which prohibits federal recognition of same-sex marriages, and the Justice Department has explicitly stated that the president maintains that position. However, after a district judge ruled in July that DOMA is unconstitutional, the Justice Department announced it would appeal the ruling because it has an obligation to defend all federal laws.

Gay rights advocates take issue with that logic.

"The Administration claims that it has a duty to defend the laws that are on the books, despite the President publicly decrying DOMA as discriminatory. We disagree," the Human Rights Campaign (HRC) said in a statement. "And at the very least, the Justice Department can and should acknowledge that the law is unconstitutional."

Condon goes on to explain:

"Now is the time for the President to stand firmly against bigotry and discrimination in our laws and for the full inclusion of our community in marriage," the group said in its statement.

In its brief, the Justice Department argues that the federal government should maintain its current laws on marriage while the states experiment with their own marriage laws.

DOMA, the Justice Department argues, "is supported by an interest in maintaining the status quo and uniformity on the federal level, and preserving room for the development of policy in the states."

The appeal explicitly addresses Mr. Obama's opposition to the law.

"Indeed, the President supports repeal of DOMA and has taken the position that Congress should extend federal benefits to individuals in same-sex marriages," the Justice Department says. "But a consensus behind that approach has not yet developed, and Congress could properly take notice of the divergent views regarding same-sex marriage across the states."

All very familiar, right? Sigh.

But maybe not quite. My legal-whiz informant calls attention to some crucial arguments that the DoJ brief (here's the link again) chooses not to make, and explicitly so. "Since the enactment of DOMA," the brief notes, "many leading medical, psychological, and social welfare organizations have concluded, based on numerous studies, that children raised by gay and lesbian parents are as likely to be well-adjusted as children raised by heterosexual parents." My informant adds: "The government then goes on to cite, and place its imprimatur upon, the studies and statements of policy that have found that LGBT parents have equally good outcomes with their kids and should not be discriminated against. (See brief at 29-30 & n.26.)"

I can't say this make me happy about the government brief. But amid the disappointment, I think it's worth taking a step back to acknowledge just how large a step this is, one that not so many years most of us would have regarded as over the moon: the U.S. Dept. of Justice arguing in official court papers that when it comes to parenting, gays and lesbians are regular people.

At a time when the crazed diehards of the loony right -- the very people from whom, it always seems to me, marriage really needs defending -- are making their to-the-death stand in support of the proposition that LGBT folk are deranged degenerates (on the "it takes one to know one" principle?), this is something, and something real. Of course it will be counterargued by that next right-wing administration we were just talking about, which we can expect to care not a whit for any precedent it doesn't like, this administration position in fact reflects where the country at large is now, and is likely to become even more solidly persuaded, especially given the abundant indications that younger people just don't give a damn about their neighbors' gender preferences.

We're still a long way from "home free," of course, and the remaining struggles are going to be fiercely fought. The most immediate need, surely, is an unequivocal, readily enforceable LGBT employment non-discrimination act, and clearly ENDA is nowhere on the thuggish Republican House leadership's horizon. But important as the front lines of any battle are, sometimes -- especially when it comes to hearts-and-minds battles fought among the citizenry -- the most important action happens away from the front. Of course to people who live in total ignorance of what sort of people LGBT people are (answer: people just like any other kind, with the usual mix of the good, the bad, and the in-between), it's mortal combat between good and evil. However, increasingly to people who have visited reality, the question is arising: What the hell was all the fuss about?

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