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.

(Follow the link. It’s funny, even though I think my side of the blogosphere is making too big a deal out of that particular remark and should be concentrating on the substance of her jurisprudence.)

Responding to a Vanity Fair writer who asked her last December who she might like to see nominated for the Supreme Court, Hill named a few names and closed her note with this admission that she sees the Supreme Court as a Supreme Legislature (emphasis mine):

I’d also like for him to go outside the Northeast corridor and Ivy League Schools for someone who has been on a state supreme court deciding significant social/economic issues.

They don’t even try to hide it anymore.

 Then again, as Robert L. from Neo-Libertarian at Large noted in a comment on my post about filibustering radical judicial nominees:

I think part of the dilemma is that there is a game of chicken going on over who is going to be the first to admit that SCOTUS has turned into just another legislative/political body.

Both parties, the Republicans very belatedly, are increasingly maneuvering based on this assumption but the messenger on this issue will definitely be shot.

I think we can forget about the court ever settling just legal disputes instead of moral/social/economic ones. That horse left the barn a long time ago. While I think certain conservative judges may claim in good faith that their job is to avoid deciding social issues, these matters are thrust upon them.

Perhaps conservatives and/or Republicans could, as Robert L. suggests, be more honest about the reality of the Supreme Court.  That, of course, would draw howls from the left along the lines of “Hypocrites!  For years, you’ve railed against using the court to advance a social agenda, and now you’re trying to do the same thing!”

But what choice do we have?  If we refuse to acknowledge the court’s function, then it becomes worse than a mechanism for social change. It becomes a mechanism for one way social change. Maybe it’s about time we just give up and play by the rules liberals have established.

Morrissey closes his post with this:

In 2012, Republicans can point to the radicals Obama appointed to positions at OLC and show voters that he was lying about being a moderate. That’s where the effort needs to go.  Filibusters on appointments for ideological disagreements are every bit as illegitimate in 2009 as they were in 2005.

Morrissey is way too optimistic about 2012. I have no idea why he thinks the slobbering press coverage of Obama during the 2008 campaign will be any different then.  In that environment, how successful does he think Republicans could actually be at getting out the message he suggests?

And why not do both?  Threaten a filibuster and then, after the inevitable failure because of another “gang of 14,” hammer Obama in 2012?  At least if they do both, Republicans could say in 2012 that they tried to stop the radical train Obama had claimed not to be driving. Why not bring that up now instead of in 2012?

But I’m afraid that won’t happen because, bogus accusations from Kossacks and DUmmies notwithstanding, Republicans are always bringing knives to a gunfight.  They are so cowed by press coverage and distortions of their positions that they refuse to take any.

Case in point: the Democrats never had to actually filibuster Bush’s nominees.  All they did was threaten filibuster, and that was enough to keep them from coming to a vote. The Republicans should have actually forced them to drone on and on on the senate floor.  For every American that saw someone taking a principled stand, there probably would have been two that saw the Democrats as obstructionist.  Any objection I might eventually have to a filibuster would be for this reason only — purely tactical. But if they can accomplish the same thing just by threatening one, I’m all for it.

And does he think for one minute that if Republicans refrain from this, it will make any difference in the future? Charles Krauthammer pointed out in 2005 that the Democrats’ use of the filibuster was unprecedented in many ways:

This technique is defended by Democrats as traditional and rooted in history. What a fraud. The only example that comes close is Lyndon Johnson’s nomination in 1968 of (sitting) Supreme Court Justice Abe Fortas to be chief justice. But this case is muddied by the fact that (a) Fortas was subject to allegations involving conflictsof interest and financial impropriety, (b) he did not appear to have the votes anyway, and (c) the case involved elevation on the court, not appointment to the court.

Even if we concede Fortas, that is one successful filibuster, 37 years ago, in two centuries of American history. In 2000, a small number of Republicans tried to filibuster two Clinton judicial nominees but were defeated in that attempt not only by Democrats but also by Republicans voting roughly 3 to 1 for cloture. 

***

Senate Majority Leader Bill Frist seems intent on passing a procedural ruling to prevent judicial filibusters. Democrats have won the semantic war by getting this branded “the nuclear option,” a colorful and deliberately inflammatory term (although Republican Trent Lott, ever helpful, appears to have originated the term). The semantic device reminds me of the slogan of the nuclear freeze campaign of the early 1980s: “Because nobody wants a nuclear war.” (Except Ronald Reagan, of course.)

Democrats are calling Frist’s maneuver an assault on the very essence of the Senate, a body distinguished by its insistence on tradition, custom and unwritten rules.

This claim is a comical inversion of the facts. One of the great traditions, customs and unwritten rules of the Senate is that you do not filibuster judicial nominees. You certainly do not filibuster judicial nominees who would otherwise win an up-or-down vote. And you surely do not filibuster judicial nominees in a systematic campaign to deny a president and a majority of the Senate their choice of judges. That is historically unprecedented.

If Republicans want to take a really principled stand, the could threaten a filibuster now but propose to take it off the table if legislation or senate rules (I’m just not sure what is necessary) abolished the filibuster on judicial nominees (or at least appellate court nominees) forever.  The change would have to be very hard to reverse, so Democrats could not change it later when they see the political ground shifting.  I’d have a hard time swallowing this change, too, but at least it would make it easier to accept a refusal to a filibuster now.

Don’t expect a repeat of the Gang of 14. I doubt there are any Democrats right now who have the obvious need for media love that the Republicans in the Gang of 14 so obviously craved. 

Morrissey is, I think, naive on this subject. Look at history, and you’ll see that Democrats (and Republicans) have definitely sharpened their knives.

Start with the Supreme Court. Reagan had one nominee (Robert Bork) rejected, but his other three nominees to the Supreme Court — O’Connor, Scalia, and Kennedy — received unanimous confirmation, which would never happen today. Under Bush 41, Souter (apparently a sleeper agent for The Left) sailed through with only 9 “no” votes, but Thomas barely made it, 52-48. In President Clinton’s first term, while Republicans were still in the minority, his two Supreme Court nominees — Ruth Bader Ginsburg and Steven Breyer — received only 3 and 9 “no” votes, respectively.  And that was after Ginsburg avoided answering nearly every question on the ground that it would be inappropriate to comment on matters that might come before her as a justice (an innovation Bush’s nominees likewise exploited, to some extent). Then the votes on Alito and Roberts under Bush 43 were 58-42 and 78-22, respectively.

On to the appellate courts, where it looks like both sides have sharpened their knives.  According to a report from the Congressional Research Service (PDF):

Over the course of five successive presidencies, the Senate confirmation percentage for a President’s circuit court nominations has declined.

The great majority of each President’s district and circuit court nominations have been confirmed, except for the circuit court nominations of Presidents William J. Clinton and George W. Bush 

The confirmation percentage for district and circuit court nominations combined was greater than 60% for every congressional session from 1977 through 1990, whereas the district and circuit combined confirmation rate has been less than 60% for nine of the last 13 congressional sessions. !The average number of days elapsing between nomination date and confirmation has been higher for most Congresses in the post-1990 period than for prior Congresses. 

Starting with the 100th Congress (1987-1988), and in five of the eight Congresses since, an average of more than 100 days has elapsed between nomination dates and committee votes on either district or circuit court nominations, or on both. 

For almost every Congress in the post-1990 period, the percentages of district and circuit court nominations left pending at the end of the Congress were higher than corresponding percentages for the pre-1990 Congresses.

The Senate returned substantially more nominations during the 102nd, 106th, and 107th Congresses than during any other Congresses in the 1977-2002 period. 

The average number of days between nomination date and final action increased in Congresses ending in presidential election years. 

The vast majority of judicial nominations submitted during the 1977-2003 period received committee hearings and votes, as well as full Senate votes. However, the share of nominations receiving committee and Senate action declined during the 102nd , 106th, and 107th Congresses, and less than half of the circuit court nominations in the current 108th Congress received Senate votes on whether to confirm by the end of the first session.

Over the course of five successive presidencies, the Senate confirmation percentage for a President’s circuit court nominations has declined.

I’m afraid Morrissey’s argument is one for unilateral disarmament after one’s adversary has developed a new weapon. It would amount to a “nuclear option” that applies only when Republicans are out of power.  That’s not the high road.  That’s driving over it’s edge.

UPDATE and CORRECTION: 

I realized that in one place in the post I said not to expect another “Gang of 14″ yet in another said another “Gang of 14″ was “inevitable.” Hopefully, my meaning was clear from the context, but I should clear it up.  My reference to “inevitable” really meant that some Republicans would cave, not necessarily that they would have to join with Democrats to reach a consensus.  By saying not to expect another, I meant that Democrats have no incentive to join in one and won’t need to.

Now, for my updated thought . .  . I think the effectiveness of filibuster at enhancing 2012 prospects will depend largely on how well targeted the filibusters are. Morrissey advocates against opposing nominees because of ideological disagreements, but that is too absolute a rule. If filibusters are limited to the most radical fringe nominees, Republicans could later point to that exercise of discretion to say, “we weren’t obstructionist, we approved almost everyone; we reserved the filibuster  only for the most radical of the nominees,” then detail why those nominees were radical.  (Of course, if the filibusters fail, the nominees become appointees and we will have plenty of first hand experience with their radicalism.)

From what I’ve read, appellate court nominee David F. Hamilton seems to fit this description to a “T” — making it very smart for Obama to make Hamilton his first judicial nominee. No matter how well-deserved the criticism, Obama can argue that Republicans filibustered his very first judicial nominee and thus were obstructionists right out of the box.

UPDATE #2: Here’s a little Rule 2 for RSM’s generous response to my Rule 1 plea.

What I find laughable, though, is Singer’s rationale for having more former legislators on the court (emphasis mine):

[T]his is the first time in United States history that the Supreme Court is entirely made up of former federal appellate judges. It is also only the second time in 220 years that the Court is without a justice with legislative experience (the other time being the period between Hugo Black’s retirement in 1971 and Sandra Day O’Connor’s selection in 1981). Indeed, as of 2005, when I first wrote on this subject, more than two in five members of the Supreme Court throughout history have had experience serving in a legislature, including more than one in five who had served in Congress.

This doesn’t mean that the Supreme Court should function like a super-legislature, or that it was intended to function as such. But those who have previously served in public office, more than those who have remained in the ivory tower of academia or the highest of courts, have a better sense of the practical impact their decisions can have on citizens of this country. Perhaps more importantly, they, better than those who haven’t spent some times in politics, understand how to expand a divided and divisive 5 to 4 majority — which we seem to be seeing more and more of as the narrow conservative majority on the Court appears intent to press it’s advantage to overturn decades of precedent — into a more stable 6 to 3, or even 7 to 2 majority.

Has anyone seen any evidence of the point in italics?  You could use almost any act of congress to illustrate the law of unintended consequences.  The purpose of the pointy-headed intellectual approach of justices to the law is that the consequences, except insofar as they might affect the actual legal process, are not normally a consideration. I can see how someone might object to that approach.  But to argue that legislators are more prescient about what those consequences will be . . . well, that strikes me as crazy.

Singer’s final point is intellectually troubling.  Apparently, he wants people skilled at backroom deal-making to cary that practice to the nations’s highest court.  From what I know of the court’s operation (prescious little), that already goes on, in a sense.  Justices compromise on language in order to bring other justices on board, sometimes because they just disagree over how to say the same thing.  But legislators are more used to substantive bargaining than quibbling over precise expression of the same idea, and I don’t want the justices haggling with each other like they’re at a flea market.

The case, which will probably be argued in the spring, will present the Obama administration with several difficult strategic choices. It can continue to defend the Bush administration’s expansive interpretation of executive power, advance a more modest one or short-circuit the case by moving it to the criminal justice system.

Obama’s decision would have been an easy prediction if one were asked to make it the day after the election. I would have bet Obama would take the last option. Now that the more nuanced Obama has reversed course, or at least backtracked, on several national security issues, it’s not that easy to call.

Maybe Ace can start a pool. Though the pictures accompanying the post announcing the pool certainly couldn’t live up to the standards of their weekly pool post.

[T]he divorce rate for Christians is about the same as for other people. These things are a total disgrace, and a clear indication that our society has abandoned marriage. Now that somebody else wants it, we grab the toy and scream, “Mine!” People rightly call us out as hypocrites for this behavior. We can’t unring this bell. It’s over. As Ed Morrissey points out, “Government stopped being in the sacrament business at the moment it offered no-fault divorces.” Whether California successfully passes legislation to undo the Court’s decision is a moot point. Same sex marriage is going to be a reality in this country in our lifetimes. And polygamous marriage will inevitably follow.

***

The rallying cry in response to this verdict will be to “Save marriage!” but we need to begin with our own. Pastors need to stop renting out churches to brides who simply want a beautiful set for their big wedding productions and reserve church weddings for Christians who have undergone counseling and understand the ramifications of what they’re doing. As Christians we need to make sure our own marriages are solid and we need to stand up with our friends whose marriages are in trouble and help fight to preserve their marriages.

Hat tip: The Anchoress.

This is a big, big, case (actually, several cases decided together), particularly if you’re one of those who believes California is a trendsetter in all things cultural.

I don’t plan to blog about the decision, regardless of how it comes out.  I’ll leave that to the other 20 million bloggers that are going to write about it.  You’re not going to miss one more.