When Barack Obama ran for President, he pledged to fully repeal the federal Defense of Marriage Act (DOMA) – a mean-spirited piece of legislation that Bill Clinton signed in 1996 for crass political reasons. Obama says it’s still his intent to do so, but has yet to follow up with any action. Meanwhile, the U.S. Justice Department filed a brief late last week defending a constitutional challenge to DOMA. The brief did not merely argue against the lawsuit on technical grounds such as the plaintiffs’ lack of standing, but advanced legal arguments that – if pursued by the courts – could greatly damage gay and lesbian rights. Most lawyers at the Justice Department who write these briefs are civil servants who cannot be replaced by a new President, and one of the authors was in fact a right-wing holdover from the Bush years. But Tony West, an Obama appointee and the brother-in-law of San Francisco District Attorney Kamala Harris, allowed it to be filed in court – and his name appears on the front page. As Assistant Attorney General for the Civil Division, West may argue that he’s “just doing his job” – i.e., defending existing federal law. But the Administration can use discretion in these lawsuits, making this unacceptable.

The Politics Behind DOMA

Sponsored by Georgia Republican Bob Barr, the Defense of Marriage Act (DOMA) passed the Newt Gingrich Congress in 1996 – and Bill Clinton signed it into law while denouncing it as gay bashing. Clinton’s re-election campaign then advertised on Christian radio, touting his passage of DOMA as being pro-“family values.” The federal law did two things. It allowed states to refuse recognition of same-sex marriages performed elsewhere, which is why California was able to pass Proposition 22 in March 2000. It also barred federal benefits for same-sex couples (e.g., federal taxes, Social Security and immigration rights) – even if a state had marriage rights or civil unions.

In 2007, I asked Hillary Clinton if she would support repealing DOMA. She argued it “served a very important purpose,” but agreed that Part 3 (which bars all federal benefits) should be scrapped. Barack Obama, who was running against her for President, promised to repeal the whole legislation. For this and other reasons, I argued that he would make a better President for the LGBT community. I did not fault Obama for his rhetoric that marriage is “a man and a woman,” because his policy pledges were sound. While many gays and lesbians complained throughout the campaign, I retorted that he (a) opposed Proposition 8 and (b) would repeal DOMA.

Today, Congress has yet to pass – and Obama has yet to sign – legislation repealing DOMA. Which is not by itself a betrayal, because he never promised when the repeal would happen – and the recession has understandably kept the White House busy. Obama is cautious to a fault, and it’s clear he has tried during the first year to avoid getting pigeon-holed like Bill Clinton did on gays in the military. Prop 8 was also politically devastating to the effort at repealing DOMA, because it showed that even California rejects marriage equality. As a community organizer, Obama understands that activists cannot expect change without mobilizing a base. While advocates must keep pushing Obama on his promise, it will require a few more political victories before DOMA gets repealed.

Justice Department Brief is a Betrayal

Action by the Justice Department to oppose a lawsuit challenging DOMA, however, is a betrayal. A gay California couple that legally married before Prop 8 passed has sued to repeal DOMA on constitutional grounds, after the Bush Administration defeated their prior effort. Last week, the Obama Administration – through the U.S. Justice Department – filed a motion to dismiss their case. The brief argued that the couple lacks standing to sue, because they had not applied to get federal benefits that married couples enjoy – nor did they attempt to have their marriage recognized in a different state. The case could get thrown out for that reason alone, but I don’t have a problem with the Obama Administration raising those arguments.

But the brief then proceeds to defend DOMA “on the merits” – using language that is factually incorrect, and arguments that (if adopted by the courts) would damage future attempts to secure gay rights. The Administration argued that the Full Faith and Credit Clause of the U.S. Constitution does not bar states from denying out-of-state gay marriages, and they cited prior cases of out-of-state marriages that were between (a) an uncle and niece, (b) a 16-year-old and adult and (c) first cousins. Comparing same-sex marriage with incest and pedophilia is what one would expect from a Republican Administration, and for a court to agree with such reasoning is unhelpful.

I was not surprised that the brief said homosexuals are not a “suspect class,” because that is what federal courts currently recognize (as opposed to the California or Iowa Constitutions.) But I was shocked to see it argue that DOMA is “related to legitimate government interests,” because the federal government has an interest in saving money. In Romer v. Evans, the U.S. Supreme Court found that a Colorado proposition did not have a “rational basis” – because its only possible justification was anti-gay bias. For the Obama Administration to distinguish DOMA from Romer by dreaming up a “rational basis” will hurt future legal efforts on this issue.

But the most offensive part of the brief was how it defended Part 3 of DOMA, which bars same-sex couples from any federal benefits. Calling DOMA a “cautious policy of federal neutrality towards a new form of marriage,” the lawyers argued that Part 3 “does not discriminate against gays for federal benefits.” Which, of course, is patently false. DOMA is not a case of the federal government taking a “neutral” stance on a controversial topic. Part 3 expressly says the federal government will not recognize gay couples, even if a state chooses to acknowledge their marriage. Nor is it merely a “cautious” policy. Only twice has the U.S. Congress ever acted in its 200-year history to restrict marriage: (a) in 1865 when it made polygamy a crime, and (b) in 1996 when it passed DOMA.

Who Wrote it – and Who’s Responsible?

Many federal employees are civil servants who cannot be replaced because the new Administration disagrees with their politics. And because the gay couple in this case had previously challenged DOMA when George Bush was President, it is no surprise that the Justice Department had attorneys ready to defend the suit. In fact, one of the lawyers who wrote the brief – Scott Simpson – is a Mormon Republican, and a holdover from the Bush Administration. Alberto Gonzales even awarded the guy for his legal defense of the Partial Birth Abortion Act. Arguably, the Obama Administration could not replace him with a new attorney.

But the first lawyer listed on the brief is Tony West, an Obama political appointee. West served as California finance chairman for Obama’s campaign, where he raised at least $500,000. He is the brother-in-law of San Francisco District Attorney Kamala Harris, who strongly supports gay marriage and is running for California Attorney General. His wife, Maya Harris, was until recently Executive Director of the Northern California ACLU. The ACLU issued a joint statement this weekend with other groups condemning the legal arguments in the brief, saying they were “very surprised and deeply disappointed” with the Obama Administration.

Of course, there is no evidence that West wrote the legal brief – or even knew about it. His name was on the brief, because he heads the Justice Department’s Civil Division (which handles all lawsuits filed against the federal government.) But that means he supervises the attorneys who wrote it, and he can be held accountable. Before gay marriage advocates start asking whether Obama or Attorney General Eric Holder authorized the legal brief, they should ask West: (1) did he review the legal brief before it was filed, (2) if so, why would he agree to have it submitted as written, (3) if not, would he have done so and (4) why were the arguments appropriate?

The Justice Department Had a Choice

West would probably say that he was “just doing his job.” His career shows he has taken controversial cases and clients before, such as defending John Walker Lindh (the American Taliban) on charges of treason. White House spokesman Shin Inouye told the Los Angeles Times that the Justice Department was following its normal practice of defending current law. “The President has said he wants to see a legislative repeal of DOMA,” he said. “However, until Congress passes legislation repealing the law, the administration will continue to defend the statute when it is challenged in the justice system.”

Some advocates feel this is a double standard. The Justice Department chose not to prosecute officials in the Bush Administration for torture and other war crimes, even if their task is to “uphold the law.” But prosecutors always have the discretion on whether or not to press charges, unlike a defendant forced to respond to a lawsuit. The Obama Administration arguably has a political double standard in this case, but it still doesn’t answer the basic question: did the Justice Department have a choice?

Richard Socarides, a former top Justice Department official in the Clinton White House, argues that they did. “I know and accept that one of the Justice Department’s roles is to (generally) defend the law against constitutional attack,” he wrote this weekend. “But not in all cases, certainly not in this case – and not in this way … Where there are important political and social issues at stake, the President should make a policy decision first and then the lawyers figure out how to apply it to actual cases. If the lawyers cannot figure out how to defend a statute and stay consistent with the president’s policy decision, the policy decision should always win out.”

Moreover, consider how California Attorney General Jerry Brown handled the suit against Proposition 8. Rather than defend state law (as his predecessor did for Prop 22), his office argued in front of the Supreme Court that Prop 8 was unconstitutional. Kenneth Starr (on behalf of the religious right) intervened to defend Prop 8, which the court accepted. It is not unusual when a law gets challenged in court that some advocates fear the government will not vigorously defend it. Occasionally, the court allows them to get involved. The Obama Administration did not have to defend DOMA, especially when there are plenty of right-wing groups ready to do it themselves.

There has been a lot of talk this weekend from lawyers, who claim the Obama Administration had no choice. Much of this analysis has taken a strict legal approach, without considering the inherent politics behind these decisions. But one lawyer said it differently. “The law can be very fluid,” he wrote, “and lawyers are taught in law school to find new ways to interpret words. Lawyers who craft new legal strategies and theories that sway courts are venerated in history as civil rights heroes … Sure, the brief was a legal document, but it was also very much a political document … Anyone who says that Republican and Democratic presidents alike don't let their politics influence their arguments before the courts is either a liar or terribly naïve.”

I completely agree. Judges, at the end of the day, are politically connected lawyers who wear robes – and lawyers cannot pretend to live in an abstract ivory tower. In a highly emotional and political case as this, we cannot discount the consequences of “upholding the law” – and the Obama Administration should have used their proper discretion in this case. Obama cannot claim to support the complete repeal of DOMA, if the Justice Department spews out arguments that may adversely affect gays and lesbians when they fight for their rights in court. Marriage equality advocates must express their displeasure, as we hope that Obama gets the message loud and clear.

EDITOR’S NOTE: Paul Hogarth was an intern for Equality California in 2005, and received his J.D. at Golden Gate University. He is an attorney licensed to practice law in California, but this piece is not intended as legal advice. He actively campaigned for Obama in last year’s presidential election.