Thursday, February 24, 2011

Did Obama Set a Marriage Trap fro the GOP?

With the professional Christians in full cry for the GOP members of Congress to intervene in the DOMA litigation now that - according to the Christianist hate merchants - Obama has rejected his duties to defend DOMA, some are questioning what other motivations Obama and his DOJ might have been seeking to achieve. Some in the blogosphere have suggested that Obama may be trying to seek a narrow reversal of Sec. 3 of DOMA which cuts against the full faith and credit clause of the U.S. Constitution. As Bob Felton correctly notes, that provision reads as follows and is aimed at preventing chaos and a patch work of conflicting laws on basic issues:
*
Such Acts, records and judicial proceedings or copies thereof, so authenticated, shall have the same full faith and credit in every court within the US and its Territories and Possessions as they have by law or usage in the courts of such State, Territory or Possession from which they are taken.
*
The clause means that if you are married in Idaho, you are married in Oklahoma, as well. That is, each state must recognize the civil arrangements of the other states. . . . The point of the Founders’ inclusion of that clause is obvious; without it, the country would be consumed by constant interstate chaos.
*
Felton also aptly notes as follows as to the hystrionics of the Christianists:
*
Fix this in your head and be ready when some jabbering moron gets to carrying on about the ruin of the Constitution: DOMA is a federal law that aims to void a portion of the Constitution for the purpose of upholding religion-based discrimination: It was never a part of the Constitution, and it was never Constitutional.
*
Another possible goal of Obama is conjectured to be setting the stage for the Christianists and their political whores in the GOP to rush into court where the rules of evidence apply and mere posturing and slogans do not carry the day as was evident in the trial court in Perry v. Schwarzenegger. Linda R. Hirshman at Salon looks at this possibility. Here are some highlights:
*
By all conventional analysis, this decision by the Obama administration represents a risky and courageous act. . . . Thus, the Republicans who run Congress may now be tempted to follow the administration's subtle suggestion in its Wednesday announcement that Congress should act to defend DOMA in court itself if it disagrees with this move.
*
That would be a mistake. . . . . Defending the exclusionary law in court, however, is something very different from braying about it on talk radio. The defenders of California’s Proposition 8, who rushed in when that state's governor and attorney general refused the job, learned this lesson in a federal case last year, when their arguments and witnesses were utterly dismantled by the all-star legal team of David Boies and Ted Olson.
*
If House Speaker John Boehner and his fellow Republicans elect to wage a fight for DOMA, they will undoubtedly phrase their announcement in the culture war language that plays so well with their party base.
*
But then, the Republicans and their lawyers will have to step into federal court and prove -- subject to cross-examination -- how the republic would be damaged if same sex spouses can get, say, federal railroad retirement benefits. As Boies said after dismantling that disqualified expert in the Proposition 8 trial, "the witness stand is a very lonely place." Moreover, the gay marriage opponents during that Proposition 8 trial didn’t just look dumb -- they looked mean.
*
As Republican House members contemplate stepping in to defend the Defense of Marriage Act, they might want to consider all of these negatives. Oh, and that poll showing how many Republicans oppose gay marriage? In the 2010 election, the issue polled at dead last among voters' concerns.

2 comments:

The Honourable Husband said...

"They didn't just look dumb, they looked mean."

Unfortunately, in America, "dumb" has become difficult to define. So much that one might think is patently "dumb", gets high marks and is celebrated.

But "mean" is obvious to everybody, when the light shines on it.

May the courts continue to expose mean-ness as well as stupidity.

Stephen said...

As you know, the capacity for rational analysis is severely undeveloped among the Republican leadership AD 2011 and they may take the bait.