An unbelievable amount of crap and hypocrisy in the wake of the DOJ’s defense of DOMA

I’m finally catching up with the lefty blogs regarding their fury over the arguments that the Department of Justice is using to support the Defense of Marriage Act against a challenge to its constitutionality in a California federal court. Short story:

1. Homosexual married (to each other) guys in California file suit against the U.S. and the State of California challenging the constitutionality of DOMA.
2. United States files a motion to dismiss the lawsuit.
3. Department of Justice — the United States’ “law firm,” if you will — files a document supporting its client’s motion to dismiss. (Since everyone is calling this document a “brief,” I will do likewise, even though it isn’t.)
4. Lefty and LGBT bloggers go absolute apeshit and start spewing dishonest attacks on the brief’s substance.

Among the hysterical descriptions of the brief: it is a “hate brief against gays,” includes “gratuitous demeaning statements,” is “filled with hate and bigoted religious right talking points,” is “breathtakingly bigoted” and repeats “countless spurious and unnecessary slurs against gay people.”

I can fully understand why they’re covering it this way. What the brief is really about — and I’ve read every word of it — consists mostly of dry arguments about jurisdiction, sovereign immunity, jurisdictional standing, prudential standing, full faith and credit, equal protection and due process. None of that makes for very exciting blogging or other media coverage. Much better to scream Bigot! Homophobe! Hater! That will get everyone’s attention. In a normal world, it would also thoroughly discredit these folks, but the media will not challenge them on it at all.

In fact, the brief explicitly disclaims any argument regarding the morality of homosexual relationships. After noting that states have taken different approaches and acknowledging that some states have reaffirmed traditional marriage “as a matter of profound moral and religious conviction by many of their citizens” the brief carefully notes that “[t]his case does not call upon the Court to pass judgment, however, on the legal or moral right of same-sex couples, such as plaintiffs here, to be married.” Now, if the case doesn’t call for the court to decide the morality of gay marriage, why would the brief spend any time on it?  Answer: it doesn’t.

Andrew Sullivan writes: “I also understand the need to defend existing law. But the zealous defense of DOMA – including repeating countless spurious and unnecessary slurs against gay people – need not be a lawyer’s duty.” The part about slurs is a plain lie, and the remainder demonstrates a breathtaking ignorance of an attorney’s ethical obligations. Sully, pick up a legal ethics textbook or look at the the ethical code for attorneys in any state, and you’ll see that zealous representation of one’s client — in this case, the United States — is exactly what is required of an attorney.

The passage (or at least one of them) that seems to have set these folks off is this:

The courts have followed this principle [that a state may refuse to enforce another state's law that is at odds with its own public policy] moreover, in relation to the validity of marriages performed in other States. Both the First and Second Restatements of Conflict of Laws recognize that State courts may refuse to give effect to a marriage, or to certain incidents of a marriage, that contravene the forum State’s policy. See Restatement (First) of Conflict of Laws § 134; Restatement (Second) of Conflict of Laws § 284.5 And the courts have widely held that certain marriages performed elsewhere need not be given effect, because they conflicted with the public policy of the forum. See, e.g., Catalano v. Catalano, 170 A.2d 726, 728-29 (Conn. 1961) (marriage of uncle to niece, “though valid in Italy under its laws, was not valid in Connecticut because it contravened the public policy of th[at] state”); Wilkins v. Zelichowski, 140 A.2d 65, 67-68 (N.J. 1958) (marriage of 16-year-old female held invalid in New Jersey, regardless of validity in Indiana where performed, in light of N.J. policy reflected in statute permitting adult female to secure annulment of her underage marriage); In re Mortenson’s Estate, 316 P.2d 1106 (Ariz. 1957) (marriage of first cousins held invalid in Arizona, though lawfully performed in New Mexico, given Arizona policy reflected in statute declaring such marriages “prohibited and void”).

This merely notes that states have refused, apparently legitimately, to accord married status to couples whose union would be unlawful  in their own state. It does not equate homosexuality to incest or pederasty.

Then the lefties thought they were on to something when they discovered that W. Scott Simpson, the junior attorney on the brief (and presumably its principal writer) is a “Bush holdover” and — horror — a Mormon. To Andrew Sullivan, this explained everything, even in the absence of any reference in the brief to Joseph Smith or Brigham Young. (To his credit, Sullivan removed the reference to the attorney’s religion). I don’t expect others who picked up on this to back off, though.

These people are both stupid and bigoted. Stupid because they jumped on the “Bush holdover” language to infer that Simpson was a political appointee instead of the DOJ career lawyer he is. Bigoted because they assume Simpson can’t stick to the law when writing the brief.

The most unhinged response to the identify of Simpson that I ran across is Jim Yeager at Skippy the Bush Kangaroo revising his evaluation of AMERICAblog’s reaction to the brief (lack of capitalization in original):

i owe john aravosis a big apology…

you know that department of justice brief calling to dismiss the case against the defense of marriage act i mentioned in this post? at the time, i thought while obama’s defense of doma was a real downer, it was also legitimate, and john was overreacting to it.

well, it turns out he wasn’t: one of the people who wrote the brief, w. scott simpson, is both a holdover from the bush administration and a mormon. i didn’t know that yesterday.

john? i am very sorry for calling you hysterical. obama has some explaining to do for this one after all.

The content of the brief (and the decision to file it) all remained exactly the same before and after Yeager knew the author. But it only became objectionable once Yeager knew a Mormon drafted it. And he thinks Simpson is the bigot. If anything, this is proof that Simpson kept religion out of the brief.

And that wasn’t all. Yeager also wrote that Obama “letting a mormon co-write his policy on anything concerning marriage — when mormons are probably the last group of people who should be lecturing the rest of us on marriage — is unacceptable.” Like Sullivan, he demonstrates no knowledge of the role of the attorney in the attorney-client relationship. The client makes the policy. The attorney carries it out with his actions in court.

Oh, and never forget, the same people that want Simpson run out of the department (what else are we to make of the “Bush holdover”coment?) are the same folks who object to politicization of the justice department. And, at the same time, complain that the gay community wasn’t consulted before this brief was filed. And the same people who think empathy is a valuable component for a supreme court justice, but who show none at all for people who think differently on the issue of gay mariage.

You want to argue that Obama’s promises meant he would direct the DOJ to do otherwise? Fine. Complain that the legal arguments are insupportable? Great! (I find some of them rather weak.) Want to represent the brief as some hateful screed virtually calling for homosexuals to be burned at the stake and insinuate that the (presumed) principal author injected religious tenets that are wholly absent from the brief? Not cool. Not cool at all. But predictable.