The Obama DOJ Files a Timid Brief in Perry/Prop 8!

Picture-1The news was broken, right around 2:00 pm EST by NBC’s Pete Williams, that the Obama Administration would indeed file a brief in support of marriage equality in Hollingsworth v. Perry. Here was the original tweet by NBC’s Williams:

Obama Justice Dept to file Supreme Court amicus brief today opposing Prop 8 in Calif and expressing support for same-sex marriage to resume.

Here was Williams’ followup story at NBCNews.com. The inherent problem with the original report was that it tended to indicate the Obama Administration was briefing only on the restricted Romer v. Evans posture heinously crafted by Judge Stephen Reinhardt in the 9th Circuit.

So, we were left hanging wondering exactly how the Obama Administration really briefed the issue, was it a limited Romer brief, or one for full marriage equality and heightened scrutiny under the equal protection and due process clauses that would give all citizens, nationwide, equality as I argued for earlier this week?

We now have the answer, and the brief, and here it is the brief in all its not quite glory:

The Obama Administration has, shockingly (okay, I do not mean that in the least), tried to nuance its way and split babies. Typical cowardly bunk by Mr. Obama. Lyle Denniston at SCOTUSBlog depicted it thusly:

The historic document, though, could give the Court a way to advance gay marriage rights, without going the full step — now being advocated by two California couples who have been challenging Proposition 8 since 2009 — of declaring that marriage should be open to all same-sex couples as a constitutional requirement.

Administration sources said that President Obama was involved directly in the government’s choice of whether to enter the case at all, and then in fashioning the argument that it should make. Having previously endorsed the general idea that same-sex individuals should be allowed to marry the person they love, the President was said to have felt an obligation to have his government take part in the fundamental test of marital rights that is posed by the Proposition 8 case. The President could take the opportunity to speak to the nation on the marriage question soon.

In essence, the position of the federal government would simultaneously give some support to marriage equality while showing some respect for the rights of states to regulate that institution. What the brief endorsed is what has been called the “eight-state solution” — that is, if a state already recognizes for same-sex couples all the privileges and benefits that married couples have (as in the eight states that do so through “civil unions”) those states must go the final step and allow those couples to get married. The argument is that it violates the Constitution’s guarantee of legal equality when both same-sex and opposite-sex couples are entitled to the same marital benefits, but only the opposite-sex couples can get married.

Honestly, I think Mr. Denniston is being kind. President Obama’s position bears the mark of a full throated coward. Clearly, when Mr. Obama said this to ABC News, he was blowing smoke up the posterior of the American public:

…obviously, my personal view, which is that I think that same-sex couples should have the same rights and be treated like everybody else. And that’s something I feel very strongly about and my administration is acting on wherever we can.

That statement would say that Obama actually supports full equal protection for ALL Americans. But the position staked out today in the Administration’s brief filed by his Solicitor General puts the lie to Obama’s rhetoric.

Mr. Obama has consistently lied about his dedication to civil liberties, privacy and the Fourth Amendment, I guess it should not be shocking that he would lie about his dedication to civil rights for all, across all the states, in the form of marriage equality. And that is exactly what he has done. And as Denniston’s article makes clear, this decision bore the active participation and decision making of Obama personally. The cowardice is his to bear personally. Thanks for the fish Mr. Obama.

That is the biggest of the Hollingsworth v. Perry briefing news today, but certainly not the entirety of it. Also filed today, among others, was a brief by a group of 14 states led by Massachusetts and New York and an interesting brief by NFL players Chris Kluwe and Brendon Ayanbadejo. The brief by the 14 states is helpful in the way it portrays marriage in the states, both straight and gay, and in that it, on page four, adopts the position of Olson, Boies and the Prop 8 Plaintiffs that the Supreme Court must find for full heightened scrutiny protection for sexual orientation under the Equal Protection and Due Process Clauses. The Kluwe and Ayanbadejo brief, frankly, is not particularly helpful in that regard as it only discussed the limited Romer based finding that would leave marriage equality up to the states.

The same group of American businesses who weighed in on the DOMA cases also filed a brief today in Hollingsworth v. Perry. In a more negative development, former Solicitor Walter Dellinger also filed an amicus brief today that is literally loathsome and dangerous in it’s argument against even giving standing for appeal to the Supreme Court. Dellinger embarrassed himself, but so too did Barack Obama. Must be something in the water of centrist Democratic thought.

So, there you have it. It was a rather important, if not quite as fulfilling as should have been, day in the life of the Hollingsworth v. Perry litigation. I guess credit should be given to Mr. Obama even for weighing in at all, and undoubtedly most media and pundits will slather him with praise for just that. Somehow, I cannot. The full measure of greatness was there for the taking, and Barack Obama, Eric Holder and Donald Verrilli, Jr. whiffed at the full mark of greatness. They will be remembered for their support, and their failure to truly step up will likely dissipate with time; but let it be said here and now.

In spite of the cowardly and restrictive actions by the “liberal President Obama” the cause of true heightened scrutiny protection for ALL Americans endures and lives on. Just not with the support of the President of the United States of America. that “leader” took the cheap “states rights” cowardly way out. Let us hope Anthony M. Kennedy and the majority of the Supreme Court have higher morals and muster as men.

[As always on these Prop 8 posts, the absolutely incredible graphic, perfect for the significance and emotion of the Perry Prop 8 case, and the decision to grant marriage equality to all citizens without bias or discrimination, is by Mirko Ilić. Please visit Mirko and check out his stock of work.]

Bmaz is a rather large saguaro cactus in the Southwestern Sonoran desert. A lover of the Constitution, law, family, sports, food and spirits. As you might imagine, a bit prickly occasionally. Bmaz has attended all three state universities in Arizona, with both undergraduate and graduate degrees from Arizona State University, and with significant post-graduate work (in physics and organic chemistry, go figure) at both the University of Colorado in Boulder and the University of Arizona. Married, with both a lovely child and a giant Sasquatch dog. Bmaz has been a participant on the internet since the early 2000’s, including active participation in the precursor to Emptywheel, The Next Hurrah. Formally joined the Emptywheel blog as an original contributing member at its founding in 2007. Bmaz grew up around politics, education, sports and, most significantly, cars; notably around Formula One racing and Concours de Elegance automobile restoration and showing. Currently lives in the Cactus Patch with his lovely wife and beast of a dog, and practices both criminal and civil trial law.

35 replies
  1. Eli says:

    The argument is that it violates the Constitution’s guarantee of legal equality when both same-sex and opposite-sex couples are entitled to the same marital benefits, but only the opposite-sex couples can get married.

    Wha? So civil unions with full marital benefits are somehow less equal than nothing at all? I’m not advocating civil unions instead of full marriage equality, just saying that this line of argument, or the scope of its deployment, makes no sense to me at all.

  2. Teddy says:

    There is not a single word in that brief from Team Obama that will ring down in history. No bit of it will be carved in marble, no future president will quote it approvingly. This brief will not be part of the president’s eulogy.

  3. Eli says:

    @Teddy: “And when it came time for the Supreme Court to rule on marriage equality in California, President Obama courageously didn’t oppose it.”

  4. Kelly Canfield says:

    How much you want to bet that this whole states rights thing won’t matter when it comes to legal weed in Colorado?

    It just sickens me, this have it “one way when you want it, and another day when you don’t” sort of behavior from this admin.

    Also too, bodes ill for DOMA, where the real action about getting real equality will happen. “Leave it to the States” signals no real support for getting rid of DOMA which would actually put teeth into inheritance, Social Security survivorship, etc.

    Hand over the tequila, bmaz…I needs me some giant cocktail about now.

  5. P J Evans says:

    I wasn’t expecting much, given that they waited until the 11th hour to even file a brief, but I did think that they might do a good job when they did finally file.

    Remind me again of the quality of legal education and knowledge in this administration? [/rhetorical question]

    We should have primaried him last year.

  6. lefty665 says:

    @P J Evans: “We should have primaried him last year.” Yes! Now we’re stuck with impeachment. Targeted killings using signature strikes may be the issue.

  7. Peterr says:

    @Eli: All you need are some of the coconut-clapping minstrels from Monty Python and the Holy Grail and you’ve got a song . . .

    . . . Brave Obama ran away.
    Bravely ran away away.
    When danger reared its ugly head,
    He bravely turned his tail and fled.
    Yes, brave Obama turned about
    And gallantly he chickened out.
    Bravely taking to his feet
    He beat a very brave retreat,
    Bravest of the brave, Obama!. . .

    (With apologies to Sir Robin)

  8. Peterr says:

    The passage most blatantly at odds with President Obama’s ABC interview is the statement that leads off the Argument section of the brief on page 9:

    The Court can resolve this case by focusing on the particular circumstances presented by California law and the recognition it gives to committed same-sex relationships, rather than addressing the equal protection issue under circumstances not present here.

    IOW, pay no attention to the need for equal protection of people in the other 42 states, plus DC, plus US territories and possessions.

    It is at great odds with the words of Anthony Kennedy, cited at the very end of this brief, and the single sentence from the briefers that summarizes the entire argument:

    “Prejudice, we are beginning to understand, rises not from malice of hostile animus alone. It may result as well from insensitivity cause by simple want of careful, rational reflection or from some instinctive mechanism to guard against people who appear to be different in some respects from ourselves.” Board of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356 (2001) (Kennedy, J., concurring). Prejudice may not, however, be the basis for differential treatment under the law.

    But these words notwithstanding, the brief asks SCOTUS to rule that gays and lesbians ought to be treated differently, based on the state in which they reside.

    Unbelievable.

  9. Peterr says:

    @bmaz: The fact that they could put both those passages in the same brief is stunning.

    Are they betting that the justices will fall asleep before getting to the end, or that the justices will skip past all the blather in the middle and just go to the conclusion?

    I’d love to see Kennedy ask Verrilli about these two passages during the oral arguments.

    AK: I appreciate being quoted as much as the next justice, but I’m wondering how you can quote these words at the end of a brief that asks me to rule in a way that creates differential treatment under the law, based on what state is involved. Care to try explaining that to me, because it sure appears to be insensitive and wanting of a little careful rational reflection?

    DV: Ummm . . .

  10. Frank33 says:

    In this Post, Bmaz is correct. President Obama is a coward.

    But Bmaz does agree with the President. Bradley Manning must be destroyed. Once again, as he has done for at least two years, Bmaz trashes Manning. I will tell you the value of said plea. It is truth about war criminals and a criminal war.

    bmaz ‏@bmaz

    @kgosztola @a_greenberg @nathanLfuller Still yet to hear any explanation for why said plea today was of positive value or smart for defense.

  11. PWS says:

    This is like complaining that the Emancipation Proclamation didn’t free any slaves. Literally true, but the end results was to free all the slaves.

  12. bmaz says:

    @Frank33: And what in the hell does that have to do with the actual defense of the man in the court docks? The simple fact is that it has NOTHING to do with his actual personal defense. It may suit your and my personal ideology (and I think it does for both), but it does NOT further his actual defense to the charges. And that is what lawyers are tasked with doing.

  13. bmaz says:

    @PWS: Yeah, will the end of Mr. Obama’s brief is to only free “all of the slaves” in eight more states. As opposed to the entire 50 states. so, thanks for the lousy and false analogy.

  14. Peterr says:

    @PWS: An amicus brief is not an executive order. It’s a statement of arguments, designed to persuade SCOTUS to accept a particular point of view.

    For Obama to proclaim that marriage ought to be for everyone, but then argue in a brief that only the residents of 8 particular states should have marriage equality is disingenuous at best.

  15. jo6pac says:

    I wonder how how anyone would expect anything other than this, all he’s after is Oh look at the shine object and when scotus decides against 8 it will be 0 normal at least I tried. The guy is a genuis at fog.

    Thanks bmz for pointing this out.

  16. Peterr says:

    @phred: If I’d written them and they employ the same high standards of internal logical coherence as this brief, I’d sure want to keep anyone else from seeing them.

  17. Frank33 says:

    @bmaz:
    His “plea” has nothing to do with his “defense”. This is a Kangaroo Court and he is already guilty. The goal is to destroy Bradley Manning, just as they destroyed Aaron Swartz.

    Stop pretending this is an actual Court. This Kangaroo Court is just part of the American Gulag.

  18. bmaz says:

    @Frank33: That is not, and never has been the history of UCMJ courts martial. But, hey, just make up your own deluded reality and press on dude. How a criminal defendant conducts his defense always matters. If you treat it as a PR show for little hangers on like Frank33, then it is a joke. But that is all you care about really, isn’t it Frank? You are just a loud mouthed troll.

  19. phred says:

    @Peterr: Logical consistency and legal clarity of thought have not been hallmarks of this administration.

    Nope. I wouldn’t hand in that homework either ; )

  20. Frank33 says:

    @bmaz:
    !!!! Troll! I am so hurt. But, a hanger on? If I was a real hanger on, I would frequently pontificate in 140 characters on the Tweeter as you do.

    Free Bradley Manning Now!

  21. PWS says:

    bmaz: Not true. The aim of the Emancipation Proclamation was to free the slaves in the states in rebellion, but leave the ones in the loyal states untouched. Only a shallow understanding could criticize it on that ground.

    I stand by my analogy.

  22. Peterr says:

    Eric Holder weighs in:

    In our filing today in Hollingsworth v. Perry, the government seeks to vindicate the defining constitutional ideal of equal treatment under the law. Throughout history, we have seen the unjust consequences of decisions and policies rooted in discrimination. The issues before the Supreme Court in this case and the Defense of Marriage Act case are not just important to the tens of thousands of Americans who are being denied equal benefits and rights under our laws, but to our Nation as a whole.

    Our nation as a whole? Not just California and a couple of other states?

    Either he didn’t read the brief or he really likes to spin.

  23. P J Evans says:

    @PWS:
    As you should have learned in your history class, there were a hell of a lot more slaves in the parts in rebellion.

  24. P J Evans says:

    @Peterr:
    Both, I think. He hasn’t read it (and probably won’t, since it doesn’t actually involve corporations and their money), but as AG, he feels he needs to defend his department and himself.

Comments are closed.