President must defend ‘don’t ask’

LGBT-rights advocates were outraged when Wisconsin Attorney General J.B. Van Hollen decided in August 2009 not to defend the state in a lawsuit over the domestic partner law. Van Hollen’s unusual move forced Gov. Jim Doyle to hire outside counsel to defend the law, forcing taxpayers to pay for a job that Van Hollen was elected and paid to do.

But now advocates are harshly criticizing the U.S. Justice Department for defending the military’s “don’t ask, don’t tell” policy in a lawsuit brought by Log Cabin Republicans in California. It is the duty of the White House to implement and enforce laws passed by Congress, just as it is Van Hollen’s obligation to defend laws passed by the Legislature.

Van Hollen justified refusing to defend the Wisconsin law by claiming it violated the state’s constitutional ban on same-sex marriage or its equivalent. However, the attorney general lacks the authority to make such decisions. They must be decided by the courts. Van Hollen’s argument was specious, but it was a convenient way for him, as a social conservative eyeing higher office, to avoid defending a law that he – and his followers – politically oppose.

Our advocates are asking the Obama administration to do the very thing we criticized Van Hollen for doing. They’re asking the president not to defend “don’t ask” on the basis that it violates his personal principles and could cost him our votes. Their specious argument is that the White House is currently working to overturn “don’t ask” and should not defend a law that’s in peril. But the president does not have the discretion to avoid defending a standing law on the basis that it faces an uncertain future.

WiG has argued that the administration should let stand a U.S. district court ruling that a section of the Defense of Marriage Act is unconstitutional. But the situations are different. The administration has already fulfilled its Constitutional duty to defend DOMA in court. It is not obligated to file an appeal.

In the current case, the Justice Department doesn’t appear to have much choice. The LGBT community and its advocates must continue to press for repeal and not to let the White House’s defense of “don’t ask” divert our energy from this goal or divide us.

Let decision stand

A U.S. district court judge in Massachusetts ruled on July 9 that a section of the U.S. Defense of Marriage Act (DOMA) is unconstitutional. This is a welcome development for married same-sex couples in that state, but its impact on same-sex marriages elsewhere is unclear.

To become federal law, the decision first would have to survive an appeal at the federal circuit court level. From there, the case would go to the U.S. Supreme Court. It’s nearly impossible to imagine the current justices supporting the decision, which states that the federal marriage ban violates the Constitution’s equal protection clause and interferes with states’ rights to establish their own marriage laws.

The decision puts the Obama administration in a quandary. The White House has condemned DOMA, but the nation’s chief executive has an obligation to use the Justice Department to defend laws enacted by Congress.

As of press time, the White House had not spoken on the ruling except to say that the president believes DOMA is discriminatory and should be repealed by Congress. But the administration had so far refused to comment on whether it believes DOMA is unconstitutional.

If the administration chooses to let the decision stand, it will not have any impact beyond the state of Massachusetts. But if the White House appeals the decision, the outcome is unlikely to be favorable.

Still, the best course of action the White House can take is none. Allowing the ruling to stand will establish a framework of legal encroachment against the discriminatory federal law. The administration should argue that marriage law falls under the sovereignty of the state and leave it at that. After all, the states’-rights argument is a mantra of conservatives, when it suits their purposes. Turn it back on them.

Moreover, the nation needs – and wants – a president who stands by his or her convictions. The voters, including an overwhelming majority of LGBT people, cast their ballots in 2008 for a promise of change and “no more politics as usual.” But Obama has provided mostly half-measures and capitulations on a host of the issues that drove many of us so enthusiastically to the polls.

It’s time for courage and leadership, for change we can believe in. The White House should let the decision stand.