Duly noted.

I am a bit disadvantaged here , because I cannot access the scribd document (have to be registered to download, it seems).

Because, you see, today’s Party is so much more secure than your Grandfather’s Party. I.e., the site is blocked, and work arounds don’t, for stuff like registering.

So no brief for me until I find a freaking pdf link somewhere.

Anyway, I am going to let this discussion go. It was just a thought, and (still, to me) makes the most sense, but its an academic point.

I mean, it could just be a huge screw-up by Obama and Holder, where they get egg on their faces, like, totally, and no one trusts them any more on anything.

A gigantic screw up that, ironically, ends up pitting the two Bush v. Gore lawyers (Bois and Olsen), two big names, against a fundy lawyer with (apparently) little supervision or oversight.

[Never post before coffee.]

Now, one interesting thing, from the link provided by Aravosis here:

The U.S. Justice Department has moved to dismiss the first gay marriage case filed in federal court, saying it is not the right venue to tackle legal questions raised by a couple already married in California.

The motion, filed late Thursday, argued the case of Arthur Smelt and Christopher Hammer does not address the right of gay couples to marry but rather questions whether their marriage must be recognized nationwide by states that have not approved gay marriage.

That, my friends, is the Full Faith and Credit Clause, which, iirc, was somehow blocked as to this very issue years and years ago, back in the mid 90s I think.

The Clause that should require every state to (again, iirc, and straight off the top of my head) afford citizens granted rights in another state those same rights while habitating in that state. I.e. the legal protections of marriage should be afforded to gay couples living in-state even though your state didn’t approve gay marriage.

To explain, as a 1l I happened to be attracted to free food one evening. It turned out there was a seminar, and I had time, first year immersion and all that (I think the organizer was having trouble getting a decent audience, Midwest and all).

It was this issue of gay marriage. And the speaker’s book would probably look prescient right about now. I will have to dig through my folk’s attic and find it one of these days. So I kept up on the issue after that.

And I do remember this topic because it was the Constitution, and was being made a pawn for such a small and inconsequential issue. Little did I know where that was going.

Anyway, this is a very, very interesting position to take, extremely.

And let’s leave it at that.

Unless, of course, this was an elaborate scam to set up some Regent/BYU left-over who has burrowed into the bureaucracy and others like him for mass firings from DOJ…Tony West can say “I had no idea this was in the brief, I’m so busy with 500 other things going on in the Civil Division, this guy is a loose cannon filing important briefs without our approval.” But again, I think that’s a generous interpretation.

@Dodgerblue: Very glad to hear that re: Judge Carter. You’re not just saying that b/c he’s a Bruin, right?

I wouldn’t ask you to stop pushing for the policies you think are right. I will be right there with you. Well, until we disagree, of course. Then it will certainly come to pass that you will have lost your mind.

I am not arguing that we can just relax and chill out cuz Obama agrees with us on everything. Of course we have to keep the pressure on, all the time pretty much. And your point about the Supreme Court is well-taken.

the language and examples are positively egregious.

Ding ding ding! You think that brief, those arguments, are going to win? Personally, I suspect a wingnut lawyer got duped on this one, else who would dare to write it?

But I as well know little about how the Justice is structured.

Let’s keep going, keep pushing, and keep debating. But when these egregious arguments get summarily shot down, let’s pretend to be shocked, shall we?

As someone who wants to see DOMA dismantled and invalidated, I would love it if this ninth circuit case would evaporate into the ether…

A strategic Justice Department interested in a litigation strategy that has some realistic chance of success certainly would not have taken [this] case as the one in which the constitutional vulnerabilities of DOMA should be explored.

So the argument would be to shoot this case down now, before it can cause harm with the Supremes. And there’s a long history to that conversation, most recently with the Boies/Olson filing: You can’t trust the current Supreme Court to do the right thing, so be careful what you set before it.

But what’s setting off other well-informed folks is that this filing goes far beyond what would be needed for such a strategic opposition: the language and examples are positively egregious.

The best spin here is that it’s a political fumble. And if Obama wasn’t dragging his feet on related issues, that might well be an acceptable explanation. But right now, he ain’t earning any trust.

But right now, I just don’t trust him on a collection of issues, and I’m not inclined to extend the benefit of the doubt. He’s been very clear about squatting on what he perceives as the political center, which has the practical benefit of forcing his opponents ever more to the right. And, as I’ve said before, you can’t fault the raw politics of his moves — that’s how you win elections.

That, in a nutshell, is the Grand Strategy, and that’s why he’s letting civil liberties slide — he sees them as divisive, and that’s not his style. He prefers mediation, not confrontation.

None of this is to say Obama signed off on the brief, or even knew about it. Maybe Holder didn’t even know about it — I don’t know how the bureaucracy works at Justice. This could very well be an accident of administration, with a burrowed-in Bushie taking advantage of lax oversight.

But the pattern develops, and I’d love to see an exception.

It fits a developing pattern for sure, and I really wonder what that pattern means. My argument is optimistic, obviously, (and I am not 100% convinced), but I haven’t seen an argument that makes more sense. Yet.

SFL, absolutely you are right, it would be a dangerous game if that is what they are doing. But seeing as everyone is scratching their heads over this and the other moves, I really continue to wonder whether they could be doing this intentionally.

Remember that outside our concise (ahem) legal discussion is a very practical one: the election sent a strong message to everyone that we are moving in a different direction, the spell was finally broken (ok, not completely, as Cheney still roams the earth), and those legal theories closely tied to the Bush Admin are now highly suspect.

Most of the big middle of our political system has seemingly agreed on this issue, that’s why we are here in the first place. Its called an accountability moment, I believe.

Notice that every time this has happened it is the most outrageous theory that is still going forward, (and in addition argued in a full-throated manner), not some reasonable-sounding theory that just happens to come from the loyal Bushies. Oh, I guess there were not any of those…my bad.

And of course you and I say, viscerally, what the heck are these people thinking! Now think about the people who are in charge of all this, that you just described. Are they psychotic, in your estimation? Hence, this little pet theory.

Bush & Co. left one some of their pet theories behind when they moved out, and somehow, it they got broken. Too bad about that.

Yes, it must. I’m just waiting for a “state secrets” argument in defense of DOMA.

Anyway, when I finally get federal recognition of my gay-marriage I guaran-fuckin’-tee you it will be ANARCHY IN THE US!

More to the point, as you mention: This is not an exception. It fits a developing pattern. You can read (or not) Barry’s fine words on the White House website, or the handwritten note that made the rounds a few weeks back, but that’s about it. Must have something to do with national security.

Re the brief: I’m not about to return to the pre-election Unicorn-boosterism of yore, but I think in this case we may assume that there are dozens or hundreds of Regent University-type (whether they actually went to BYU is almost beside the point) leftovers in Justice, ready to advance the previous administration’s agenda as long as they can get away with it. So many fires to put out, you can’t expect the Preznident himself to review every legal argument filed on his behalf.

On the other hand, I’m not Hope™ful that Obama himself, when this kind of thing is brought to his attention, would do anything significant to turn the ship of state. He has demonstrated, repeatedly since taking office, that civil rights is NOT a high priority for the “change” administration.