Obama losing ground on gay rights

I've been grudgingly supportive of some of Obama's positions on gay rights that I don't necessarily agree with. I can see why he's dragging his feet on repealing DADT, and I think he sees problems supporting gay marriage, because it will make him a lightning rod for homophobia, at a moment when he doesn't need another reason to piss off moderates and the right.

But he does owe his gay supporters, and he hasn't done much to repay them, or even much to advance the cause of gay rights. This is starting to disappoint.

The latest is a brief filed by the DoJ in a case in California. Andrew Sullivan, by far Obama's most articulate conservative gay supporter, is not happy. AmericaBlog rips the Administration's case to pieces.

A couple of thots, trying to square this with my admiration for Obama:

This is a brief written by someone in the DoJ. Obama quite probably didn't read it. I would be surprised if he were aware of it before today - the DoJ probably files briefs like this every day. In some sense, there is a principle that the civil service lawyers in the DoJ, not the political appointees, should be allowed to make the strongest case possible for the government. They do not care about the political consequences, and they shouldn't.

But this is policy by other means. The Obama DoJ can not make these arguments if they want to avoid the political headaches.

Even if the Obama administration wants to take a hands-off approach to letting the DoJ make the best argument the lawyers think they can, the administration should be prepared to deal with the fallout from the gay community. There are thousands of people who gave lots of time and money to Obama.

Now for some seriously counter-intuitive thinking: Maybe this is a tough-love move by the Obama administration. Maybe they are playing devil's advocate in public. Maybe they are saying to the gay community - OK, you want marriage, and repeal of DADT? Fight for it. Lay the groundwork. Provide us with some political cover.

This makes some sense, because the gay community did not do much fighting last fall over Prop 8. I got the feeling that many members of the gay community, and their liberal friends thot that gay rights in California were a done deal. I include myself in the latter group - I just about assumed that defeating Prop. 8 was a foregone conclusion - this is California in 2009, right?

I'm not sure the gay community realizes the stakes for the Obama administration. Obama won in 2008 because he won states like Indiana, Virginia, and North Carolina. If he is too closely associated with gay rights, he could easily lose those. And with them, the election.

If I sound schizophrenic on this issue, it's because I am. I am strongly supportive of gay rights, and I am strongly supportive of the Obama administration. I don't think Obama did the right thing with this brief in California, but I'm also not sure that Obama himself had much to do with it. But I do think he should do something about it. He needs to placate some very pissed off -and very legitimately pissed off - solid supporters.

Update: Laurence Tribe, the constitutional scholar at Harvard, is somewhat supportive of the Administration. He's paying attention to the details of this particular case. It's worth quoting him at length:

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

Even though I personally believe that DOMA is unconstitutional, I think that this particular lawsuit is very vulnerable; it’s not anywhere near as strong as the one that was brought in the federal district court in Massachusetts [a suit filed by Gay and Lesbian Advocates and Defenders].

In an environment where the Supreme Court is still quite conservative, what makes a suit a strong one is that it finds a point of entry in which it’s possible to invalidate a law in a number of its applications by using more of a scalpel that might appeal to five justices rather than a bludgeon that will almost certainly ask more of the court than it is willing to do.

What’s strong about the Massachusetts case is that these are concrete situations of people who are legally married under the laws of states like Massachusetts or Vermont, and who are being discriminated against by the federal government with respect to federal benefits simply because they are same-sex couples. There’s no other difference between them and other couples in that state, and the court could agree with that without accepting any of the broader theories advanced in the [Smelt] lawsuit in the central district of California, which is basically a bet-the-farm lawsuit that almost dares a conservative Supreme Court to slap it down.

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

He also understands the political reality, and sympathizes with gay groups. But he also understands the legal reality, and how it intersects with the political reality. This was not a good case for challenging DOMA. The disappointment of gay rights groups is an example of what I call the "magic wand" theory of social change. That's the idea that a president can arrive at the White House, start waving a magic wand, and voila! solve all the problems of the world. Doesn't work like that, folks. Again, Tribe is worth quoting at length:

The important point here is that the solicitor general traditionally seeks to dismiss lawsuits against federal laws whenever there is a plausible basis to do it. A lot of the outcry about the administration’s position doesn’t take that institutional reality into account.

It doesn’t surprise me very much because I understand the frustration of some of the groups. They have lived under the burden of DOMA, of “don’t ask, don’t tell,” for a long time, and they understandably hoped that this would be an administration that would side with them on these issues.

And I think the frustration of having to wait so long for a progressive and intelligent president who, nonetheless, occasionally does some things that people find disappointing on matters that cut deeply into where they live -- it’s understandable that would lead to some strong reactions in this case.

The other problem is that this is vastly more important to gay rights groups than it is to Obama. Whether or not a gay person can get married has a major impact on their lives. It has a much greater and more immediate impact than, say, whether or not there is peace between the Israelis and Palestinians. But peace in the Middle East is vastly more important to Obama than whether or not a couple million Americans can get married. It is also far more immediate for Obama; he has a chance to achieve peace in the Middle East right now, and he can't afford to let this chance slip away. Gay marriage is an issue that will be around for a long time. And the odds of repealing DOMA in the next year are, honestly, slim to none. Not while there are still something like 40 states with anti-gay marriage laws on their books.