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.