Wednesday, October 13, 2010

Obama’s “Excruciating Trap” on Gay Rights?

One of the many challenges facing Obama this election season is having to contend with the cognitive dissonance generated by his Department of Justice’s ("DoJ") stance toward the Defense of Marriage Act (“DOMA”) and Don’t-Ask-Don’t-Tell (“DADT”). During his presidential campaign Obama didn’t pull his punches; he opposed, and promised his best efforts to get Congress to repeal, both laws. Now his administration is defending them both in court. That leaves Obama, according to Andrew Sullivan, struggling to extricate himself from an “excruciating trap” (my emphasis):
“So once again, we will have the political prospect of the Obama administration simultaneously legally defending the Defense of Marriage Act and Don't Ask, Don't Tell in court, while politically saying they oppose both. There is a case for such a position, and Obama's insistence on orderly executive defenses of laws passed by Congress is constitutionally sound. But in the arc of history and morality it is an increasingly perverse and bizarre one. It could also mean disaster for gay servicemembers. . . .

“[I]n the short run, it could very well mean that this awful policy [DADT], opposed by 75 percent of the country, that imposes intolerable burdens on servicemembers risking their lives for us ... could be in place for the indefinite future. And Obama will be the commander-in-chief enforcing it.”

“Yes, the GOP is the main party to blame. But no, this does not excuse the extra-cautious, gays-are-radioactive mindset of the Obama administration.”
I share Sullivan’s moral discomfort with the administration. But the words I’ve italicized make me doubt that he’s put his finger on exactly what trap Obama needs to extricate himself from. What, exactly, makes the Obama administrations positions on DOMA and DADT “perverse” and “bizarre”?

The administration is putting out the word that it’s appealing the DOMA and DADT trial court rulings out of an institutional obligation Obama incurs as the head of the executive branch. Here, for example, is the official administration explanation of its decision to appeal the DOMA ruling:
"'As a policy matter, the President has made clear that he believes DOMA is discriminatory and should be repealed,' said Justice Department spokeswoman Tracy Schmaler. 'The Justice Department is defending the statute, as it traditionally does when acts of Congress are challenged.'"
That’s a cop-out. Yes, the executive branch “traditionally” defends federal statutes from constitutional challenges in court, but that doesn’t mean it’s obligated to do so. It’s perfectly permissible for any administration not to appeal an adverse court ruling when it determines, in its sole discretion, that it wouldn’t serve the interests of justice or be an efficient use of its limited judicial resources. If according to DoJ’s best legal judgment, DOMA and DADT really are unconstitutional, that’s a more-than-adequate justification for not appealing correct District Court judgments. The administration is hiding behind an institutional obligation that doesn’t exist.

It would be different if DOJ lawyers really thought that, even if they’re unwise or immoral, DOMA and DADT may well be constitutional. That’s a coherent and defensible legal position for them to take. There’s nothing paradoxical about believing that, although both policies are wrong, they are mistakes that the political branches have the authority to make. (For what it’s worth, I’m a lawyer who thinks that’s probably the correct legal position with respect to DADT, but probably the wrong one with respect to DOMA.)

But the administration isn’t saying anything like that. Maybe that’s not what Obama or the DoJ really believe. Or maybe they believe it, but aren’t saying so for nakedly political reasons. Although both positions are coherent and defensible, believing in either policy’s constitutionality and wrongness, or unconstitutionality and rightness, doesn’t seem to be a psychologically tenable position for most people in either the Democratic and Republican base. So the administration might not have the stomach for exposing itself to the charges of hypocrisy its real legal positions would excite from liberals and conservatives alike.

If the administration really does believe that DOMA and DADT are constitutional, its not saying so is another cop-out. In a well-functioning constitutional democracy, citizens need to keep questions about the constitutionality and the wisdom of public policy at a logical and psychological distance from each other. Each side needs to know that the other is prepared to acknowledge that the winners of the last election have the constitutional right to enact unwise public policy. When each side gets into the habit of confusing the constitutionality of a policy with its advisability, neither side will expect to get a fair chance at governing after it wins an election, or be inclined to act as a loyal opposition after it loses. Any administration has a pretty weighty civic obligation not to facilitate such confusion.

So what “excruciating trap” is Obama caught in? If he and the Democratic congressional leadership wanted to, they could have repealed DOMA and DADT at any time during the last two years. They didn’t because they thought other objectives were more important and/or they didn’t want to take the political heat. A politician's moral compass and his sense of political expedience don't always point in the same direction.  You can call that an "excruciating trap" if you want to, but it's one that all politicians sign up for.


KenB said...

Agreed. Another funny part of that post is the bit about the GOP being the main party to blame, considering that Democrat Bill Clinton instituted the policy after Democrat Sam Nunn blocked his efforts to lift the ban entirely.

AFAICT the main party to blame is the electorate, whose overall discomfort with the idea of gays openly serving in the military is apparently still high enough (at least regionally) to discourage politicians of either party to lift the ban, regardless of their personal opinion of the matter.

Anonymous said...

This administration is a bunch of amateurs ...
Quick, where's the manual ???