After the jump, the 54-page DOMA motion to dismiss from the Obama Justice Department. Please note, we cannot be responsible for bashing your head against your monitor.

Obama defends DOMA in federal court. Says banning gay marriage is good for the federal budget. Invokes incest and marrying children. [AmericaBlog]

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Please, if there’s such a thing as a lawyer nearby, I have no real understanding of who wrote this and what they might be doing. Is this as bad as it seems or might there be some reason for making it this extreme?

I don’t have time at work to wade through this thing (and I’m not sure if my uninsured blood pressure should risk it) but just the titles of Arugments III-VII–and especially the BS about “full faith and credit” and equal protection”–make me want to run screaming into the night. Please, could someone talk Benedick and me down? Or should we just jump and get it over with?
I can tell I’ll have to do some serious baking this weekend to comfort myself.

@Mistress Cynica: or you could stop by Casa RML Saturday evening for a Frito pie or a chili dog (made with homemade chili using organic Colorado beef raised by my oldest friend in the world). Also: short ribs from a happy cow who formerly roamed the plains of Nevada.

For the uninitiated:

Could it possibly be that they have decided to run with every single wingnut argument, just to get them all shot down and hopefully killed off?

Remember the DOJ did the same thing with the state’s secret doctrine?

Then, they got smacked down.

Engineering precedent?

@redmanlaw: I must have discovered these during my years in Texas. The other day we were in the concession line at my son’s little league game and I saw “walking taco” on the board. When they described it for me, I exclaimed “Frito Pie”, to the utter confusion of the teener staffing the stand.

I sent my boy back to the dugout saying “Talking Walk-o anyone?”….

@Benedick: @Mistress Cynica: Best I got out of it was the feds decided to punt it back to the states, saying “we’re not going to keep you from doing what your political policies and constitutions allow you to do.” One disturbing element is the argument that there is a federal interest in creating incentives for male-female marriage, but they don’t explicitly say something like “because that combo produces new taxpayers”.

But I ain’t no lawyer.

@RZ: That’s a very generous interpretation to make as to the motivation, and if true, they are playing a really dangerous game of gambling on this. I suppose to bolster your interpretation, note that Tony West, the head of the Civil Division, is from SF and while an attorney at Morrison & Foerster, worked on the team that defended John Walker Lindh. He’s also married to Maya Harris, the former Executive Director of the ACLU of Northern California, and the brother-in-law of Kamala Harris, the San Francisco District Attorney and candidate for Calif. A.G. All very odd that his name would be on such a disgusting brief.

The judge is a Clinton appointee, a double Bruin like DB, and is a former Orange County Prosecutor. So how does all that shake out? Perhaps the LA office of Law.Stinque.Com has some thoughts on that.

One of his biggest rulings, however, is this, per the Wikipedia:
Gay-Straight Alliance (Colin ex rel. Colin v. Orange Unified School District)

In the first ruling of its kind, Carter issued a preliminary injunction in 2000 ordering Orange County public school officials to allow a Gay-Straight Alliance club organized by students to meet on campus. In so doing, Carter held that the Equal Access Act, 20 U.S.C. §§ 4071-4074, requires a public high school that accepts federal funding and established a limited open forum for non-curriculum-related student groups must allow a student group promoting tolerance for homosexual persons to meet on campus.

The case settled after Carter issued the injunction, with the school board agreeing to recognize the Gay-Straight Alliance organization. Although the case was politically controversial, Orange County School Board member Linda Davis later admitted at a board meeting on November 18, 2000 that Carter’s legal ruling was correct when she stated, “We know the law is on their side, but our community members don’t want it.”

@Nabisco: I lurve Frito Pie. During the Texas-U$C football championship game a few years back, I had a big party where I made Frito Pie for everyone.

@SanFranLefty: Perhaps the LA office of Law.Stinque.Com has some thoughts on that.

Foul temptress! Every time I see that, I’m desperate to set it up.

Which I can. Just not sure what to do with it.

@nojo: I thought the consensus was that she was actually a pretty hot temptress.

It’s really weird reading the comments on other blogs as Obama supporters desperately contort themselves into various pretzels trying to justify and rationalize his declaration of open war on the gay community. Everything from how stupid we were to believe the lies that he told us, to how he has some great masterplan for our lives (um, messiah-complex much?). Even worse are the too-far-gone-to-save, Stockholm syndrome suffering gay people who still support him by claiming that he’s just upholding the law (ugh, that repulsive legal positivism rears its ugly head again).

I don’t give a flying fuck what his & his (In)Justice Department’s motives are. They did everything but end that brief with “DIE FAGS!” They can suck it, and my only regret is that I can’t convey that sentiment in person.

We have to accept the fact that we’re dealing with an Administration that’s openly hostile to our needs and that hasn’t changed from the worst of the Caligutard years.

@Mistress Cynica: Was you over at TLo voting for Audrey Hepburn over Julie Andrews earlier today?

@Original Andrew: I just don’t understand it. He’s not a stupid man, god knows. And this would seem to be a very stupid document. He must know it’s not going to gain him brownie points from any part of the population he might want to reach. Which is why I’m wondering if there’s something behind it. Not to make excuses for him but it just doesn’t really make sense. There is, BTW, a very reasonable essay on marriage in the new NYRB.

Lame-O explanation from DOJ spokesmodel. “Defending the law on the books” doesn’t mean you have to invoke pedastry and incest to do so.

I read this and heard: States’ Rights. Period.


Reading legal reactions from around the webs, pretty much everyone is totes gobsmacked by this brief. It goes far beyond formality, and makes many arguments that are gratuitously sadistic, hateful and deeply offensive (ex. we have marriage rights if we just marry someone of the opposite sex, DOMA saves the gummit $$$, the whole beastiality/pedophilia agle). It could’ve been ghostwritten by Pat freakin’ Robertson for fuck’s sake.

My own take for what it’s worth: Rahm & Co. have decided that we gaze aren’t just expendable, we’re demonizable and can be used as a ploy to siphon off Repukelican & xtian conservative votes for shits and giggles.

For an Administration headed by a child of a mixed race marriage to be making these kinds of arguments… it just jacks the irony dial up to 1 million.

And again, it’s not just marriage.

It’s DADT, hate crimes, ENDA, the HIV travel ban, the exclusion of same sex couples from immigration sponsorship benefits–which even hardcore Catholic countries like Brazil consider inhumane and immoral–it’s all of it.

The DEMONcratic “leadership” has failed us on every level.

@Original Andrew: … it just jacks the irony dial up to 1 million.

Maybe that’s it; in the Age of Irony, he’s the First Sardonic.

@Original Andrew: I’m sure you’re right. However, I just took a look at the WH website and all the language is still there. I think if they’d been planning something awful they’d have scrubbed the site, no? Not wishing to delude myself but the very fact that the ruling went as far as it did seems not right.


Words are cheap. It’s actions that matter.

Grabbed this off of Pam’s House Blend, grabbed off of Kos, etc.

Shattered pictures…

@JNOV: Hey you need to do some research work. I think that the DOJ attorney on the case who wrote the brief (inevitably the last attorney listed is the one who wrote it) is a Mormon, or at the very least he is a graduate of BYU Law. I have to go out right now and can’t do more research, but I figure between you and Cynica you’ll have the mystery cracked by the time I’m back on the computer.

@Original Andrew: A Lily Allen song indeed comes to mind..

@SanFranLefty: You are correct. From a friend:

Would it surprise you that the hate filled brief comparing gay equal rights to incest and peole marrying children was written by a mormon?…The guy who is in charge of the case: Scott Simpson the chief trial attorney. Certainly his superiors, including the newly appointed AAG whose name is also on the brief, right on up to Obama himself also share blame. But the nastiness of the arguments come from the author of the brief, who is the Chief Trial Attorney.


Jeebus, is Magic Underpantz, Inc. gonna put a mob hit on us next?

Who pissed in their Cheerios?

@Original Andrew: MU, Inc. has had it out for gays for a long time. I know a straight older woman (and by “older” I mean late twenties or so) and a gay man who were coerced into marriage to reach the Celestial Kingdom. Has kids, the whole nine yards.

Do you know about Evergreen? A quick look at YouTube shows that TSCC (the so called church) might have had the videos pulled. Anyway, it was aversion torture BYU students had to endure. Hmm.. can’t find it on Wikipedia either. Jesus. TSCC is clamping down hard on dissent on the intertubez.

I’ve been reading briefs that make me angry all day. I guess one more won’t hurt.

Judge Carter is a decent guy and a good judge.

There is something weird about all this. It does not make sense. I know that people are angry but something is fishy.

OK, here’s my prediction. Judge Carter will duck the tough issues and toss this case on procedural grounds. What’s fishy here, Mr. Dick, is the way the plaintiffs’ lawyers sleazed this case into federal court after they first filed there and got a fee-waiver request denied. Judge Carter ain’t gonna like that. Neither would I, in the alternate universe in which I am a federal judge.


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.

@Pedonator: Guess I didn’t get around to posting a comment I started — they could spin it as a Bush holdover with insufficient supervision. But so far, they haven’t.

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.

@nojo: Must have something to do with national security.

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!

@SanFranLefty: @nojo:

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.

@RZ: If only we could jump ahead two years and skip the wondering…

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.

@RZ: Via Sully, Laurence Tribe suggests a mitigating factor:

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.


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?

@RZ: But the point is, the case never should have been moved to federal court, and the brief could have addressed that. If, to use lawyers’ favorite phrase, in an abundance of caution, they decide to not just make the procedural argument but also address the substantive issue in chief, there’s a lot of ways to do it without using such disgusting language and arguments.

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?

@SanFranLefty: Right. He’s a decent judge and a no-bullshit guy. I think the plaintiffs here will have a problem with the “no bullshit” part because they obviously finagled their way into fed court without paying the fees. That might fly for a pro se, but not for litigants with a bunch o’lawyers on the papers.


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.

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