Tuesday, July 19, 2011

Why the Obama Admin should be Praised - not Scolded - for Filing Gay Rights Brief

On Friday, July 1, 2011, the U.S. Department of Justice filed a brief on behalf of the lesbian plaintiff in the case of Golinski v. U.S. Office of Personnel Management in the federal district court for the Northern District of California. The brief took a strong position against the Defense of Marriage Act ("DOMA") and urged the court not to dismiss the plaintiff's claim against the federal government.  The brief also called DOMA unconstitutional and urged the court to adopt a new standard under the Equal Protection Clause of the 14th Amendment as it relates to discrimination against people on the basis of sexual orientation.  Currently, laws which discriminate against gays and lesbians on the basis of their sexual orientation must only pass what is known as the "rational basis test," which is the lowest of the 3 scrutiny levels under the Equal Protection Clause.  The Obama Administration argued that "strict scrutiny" should be applied to all laws which seek to discriminate against gays and lesbians on the basis of their sexual orientation, which is the highest and most difficult level of scrutiny under which a law can be reviewed by a court.  In addition, the DOJ's brief chronicled the history of the government's specific role in discriminating against the LGBT community in America.  Lastly, the brief squarely addressed and dismissed the position taken by the private attorney, Paul Clement, who was hired by House Speaker John Boener on behalf of House Republicans to argue in favor of DOMA.  In short, the brief demonstrated in unequivocal terms the Obama Administration's referendum against DOMA.

Given the unmistakable position in favor of LGBT rights taken by the Obama Administration in this case, it is difficult to see how anyone in favor of LGBT rights would take issue with such a measure.  However, that didn't stop gay blogger J didn't want the mainstream media reporting on the filing of the brief because Obama is ashamed to be associated with LGBT rights.

 Per Aravosis:

So why didn't the Justice Department submit the brief earlier in the day when the White House itself could have crowed about the accomplishment, and the mainstream media could have covered it? The brief had to be filed by that evening, not DURING that evening. It could have been filed a day before, a week before, it was up to DOJ.  So why file it in the middle of the night when it's guaranteed no one will cover it?

We're to believe that the week the President is meeting with gay community leaders at the White House to celebrate the anniversary of Stonewall (last Wednesday), the week the President is coming under incredible media scrutiny and criticism of his lack of evolution on gay marriage, the administration, rather than tout a clear example of the President's significant evolution on the larger issue of marriage equality (by actively opposing DOMA in court), thus silencing critics of the President's lack of evolution in the media and in the community, the administration chose instead to have the brief filed and made public late on a Friday night on a holiday weekend when it would be guaranteed that no one would hear about it.

This was either intentional, or criminally negligent. And it's hard to believe the latter.

Some people in life are just determined to see the glass as half-empty no matter what. So let's consider what is being argued here:

"So why didn't the Justice Department submit the brief earlier in the day when the White House itself could have crowed about the accomplishment, and the mainstream media could have covered it?"

Oh I dunno, perhaps because the Justice Department was still working on said brief?  That would certainly seem like a more plausible explanation than suggesting that the DOJ is involved in a non sequitur conspiracy to hide something that it spent a considerable amount of time to create.

"The brief had to be filed by that evening, not DURING that evening."

Actually, that's not true.  Two words: Electronic Filing.  Any lawyer or paralegal familiar with federal practice knows that the e-filing PACER system allows filings to take place up until midnight on the date that a document is due to be filed. That's what it was invented for - so that you don't have to break your neck running to the courthouse trying to file a document by 5pm. 

I suppose the counter argument here would be to ask why the DOJ waited until the last day.  Again, going back to the first point, briefs can't (and shouldn't) be rushed.  Especially one this important.  Briefs get done when they get done.

"We're to believe that the week the President is meeting with gay community leaders at the White House...the administration chose instead to have the brief filed and made public late on a Friday night on a holiday weekend when it would be guaranteed that no one would hear about it."

Um, yeah.  The very notion that the last day filing was intentional, as opposed to coincidental, is founded in a conspiracy theory that doesn't exactly line up with reality.  So let me get this straight, the Obama administration announced to the entire country that it is no longer defending DOMA, which is beyond huge for an Executive branch to make such an announcement, then, weeks before the brief in the instant case is to be filed, Obama personally attends a New York LGBT fundraising gala hosted by Neil Patrick Harris where Obama weighs in publicly in favor of New York's then-pending same-sex marriage amendment, all so that two weeks later he could NOT take credit for his Attorney General's decision to PUBLICLY file a brief (all filings = public record) in a federal district court (not the Supreme Court of the United States mind you, not even a federal Circuit Court of Appeals, but an entry-level District Court) which - for all we know - MIGHT get tossed out of Court before the case is over???

Really?

Here's a suggestion that just sort of came to me on the humbug, so please take it as you will.  If the true goal here is the equality of LGBT Americans under federal law, then maybe, just maybe, we should be more concerned with the substance of what was said publicly in a court of law by the agency charged by the Obama Administration with the responsibility for making that happen (that would be the Justice Department, in case you forgot), and less concerned with mere media coverage.

When the Justice Department filed a suit against Philadelphia's Valley Club last year for discriminating against Black children who wanted to swim in their pool, as a Black person, I didn't need to hear the President come on Television and announce to the media that justice was being done in order to know that justice, was in fact, being done.  Why should he have to do anything differently here for to know that justice is being done on behalf of the LGBT community?

Moreover, let's try to keep things in perspective here.  I applaud the Justice Department for taking a stand against DOMA in the Golinski case, but in the grand scheme of things, this is only the filing of a legal brief, folks.  It's not like Eric Holder made an oral argument in front of the Supreme Court.  Even if Obama had made an announcement to the press, we can hardly assume that the general public would care about such legal procedures.  This is not to downplay the importance of the brief itself.  As an attorney, I understand the significance of the position taken here by the Justice Department.  But the time and date that a legal document was filed is hardly grounds to accuse the President of the United States of trying to sweep the crusade for LGBT equality under the rug.


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