After a conversation with my dad, who as I’ve mentioned knows something about constitutional law, here’s how I’m really, really, really hoping the hideous Department of Justice brief supporting the Defense of Marriage Act happened.
1. The makeup of the current Supreme Court, which is where this suit would end up, pretty much guarantees that a constitutional challenge to DOMA would ultimately fail. If that happened, DOMA would be ruled constitutional, and there would be no way to get rid of it other than legislative repeal (very difficult) or a constitutional amendment (well nigh impossible). If the Obama administration really does want to kill DOMA, but is planning to wait until Obama has had a chance to appoint a few more liberal Supreme Court justices (which it’s very likely he’s going to be able to do), such a turn of events would be bad. Therefore, it wants to prevent Smelt v. United States from going to trial. This can happen only if the DOJ files a brief.
2. Now, the DOJ is essentially Congress’s lawyer. As such, it has a legal obligation not just to advocate on behalf of its client but to advocate as vigorously as it can on behalf of its client. It would be unethical for the DOJ to file a pro forma brief or one asking that the case be dismissed for lack of standing. So if they filed a brief at all (which they had to do—see above, “prevent Smelt v. United States from going to trial”) they really had to throw the kitchen sink in. They didn’t have to make it all so insulting and homophobic, but . . .
3. . . . we know the brief was written by W. Scott Simpson, a Bush holdover who was, as Andrew Sullivan points out, given an award by Alberto Gonzales for his defense of the Partial Birth Abortion Act. I believe that it’s reasonable to assume he is not the LGBT community’s best friend.
4. It would be great if he were the highest-ranking DOJ official on the brief, because apparently none of the highest-ups at the DOJ pay attention to briefs filed in district court cases (i.e., lower-than-Supreme-Court cases). Unfortunately he’s not; the highest-ranking DOJ official on the brief is Tony West, the Assistant Attorney General in the Civil Department. So what I’m really, really, really hoping is that Tony West is an idiot and that, when he saw a hideous brief written by a bigot, he idiotically didn’t realize that as a brief on such a high-profile issue it ought to be checked with extreme caution, and he also idiotically didn’t realize he ought to give Lambda Legal, the ACLU, and other gay legal organizations a heads-up beforehand, and idiotically just filed the damn thing.
5. Tony West is at this very moment being reamed a new and extraordinarily painful asshole by many, many, many very, very important people, and a number of other very, very important people are trying to figure out how to clean up the mess he made.
6. (Also, apparently, the people in the DOJ’s Civil Department are widely known to be clumsy fuck-ups whose blunders the DOJ’s Civil Rights Department—not the same—often have to fix.)
So I’m really, really, really hoping that’s how it happened. Because if it’s not, I’m not sure how to escape the conclusion that I voted for a liar.
Even if that is how it happened—which I truly do believe is possible—at this moment I feel that Obama has just used up the last bit of LGBT slack I’ve been willing to cut him.