Frank Wolf, wrong side of history

Correction below: The New Republic is most definitely not The National Review. I was thinking of an entirely different article. My mistake.

Frank Wolf thinks that the Justice Department should still be defending Section 3 of DOMA in court:

“Congress has a reason to be concerned” over the Justice Department’s decision not to defend the Defense of Marriage Act (DOMA), Rep. Frank Wolf (R-VA) said Tuesday.

Wolf told Attorney General Eric Holder at an appropriations subcommittee hearing that the Obama administration had abandoned its duty.

“It almost looks like a political decision,” Wolf said. “I think it’s inappropriate and it’s a bad decision.”

I can understand why he’s concerned. It means that if anyone is going to argue in defense of DOMA, it will have to be Congress. That will be an uncomfortable position to be in.

First, let’s clear up any lingering misconceptions resulting from uninformed statements by people who should know better. First, the Obama administration has not stopped enforcing DOMA, nor has DOMA been ruled unconstitutional; second, the decision to no longer defend it only concerns Section 3 of DOMA (the provision that denies federal benefits to same sex couples legally married under state law), not the entire act; third, an executive branch decision to no longer defend a law is not unprecedented; and fourth, the decision does not represent a change in the president’s views (he has always opposed DOMA), only a change in circumstance with regard to the cases under court review.

That change in circumstance is this: in previous cases in which the Justice Department has defended DOMA, the level of scrutiny had already been established by precedent in those courts. In these new cases, it has not. Therefore, anyone in the position of defending the law in these cases must first establish that the lowest level of scrutiny – rational basis review, which basically means that the government doesn’t have to come up with a reason for the discrimination in question – is the appropriate one. What the Justice Department is saying is that they don’t think that can be done anymore, given the changes in the legal landscape since the passage of DOMA in 1996 – but that Congress is welcome to try to do so if that is what they want to do.

What Congress will be required to argue, in order to establish that a rational basis standard is fine and dandy, and that heightened scrutiny is NOT warranted, is the following (adopting the Supreme Court language cited in the Justice Department memo:

1. That gay and lesbian people have NOT “suffered a history of discrimination”;

2. That gay and lesbian people do NOT “exhibit obvious, immutable, or distinguishing characteristics that define them as a discrete group”;

3. That gay and lesbian people do NOT constitute a group that “is a minority or is politically powerless”; and

4. That the characteristics distinguishing gay and lesbian people as a group have some important “relation to legitimate policy objectives or to an individual’s ‘ability to perform or contribute to society'”

You can see how uncomfortable it would be for anyone wishing to be taken seriously as a legislator or political leader to openly support these arguments. In fact, the proponents of Proposition 8 in California had a hard time finding witnesses to make them at all. Linda Hirshman, observing the pitiful failure of “culture war” arguments to stand up to the unblinking logic of cross examination, advises the Republican majority not to walk into this trap. And as one of those cross examiners, David Boies tells us, “the witness stand is a very lonely place.”

Since Mr. Wolf believes so strongly that the Justice Department should be making these ridiculous arguments, I can only conclude that he would be willing to make them himself. The ultimate irony has to be that his loooooong record in Congress is one that has contributed to the very conditions that make the arguments he feels compelled to make so patently ridiculous. He has for over thirty years voted in a way that codifies systematic discrimination against gay and lesbian people. He has opposed every bill that would end such discrimination, and thereby demonstrate the “political power” of the gay community. If opposition to allowing openly gay soldiers to serve in our military doesn’t define gay and lesbian people as a discrete group singled out on the basis of a distinguishing characteristic, I don’t know what would. Likewise, I can think of nothing that would demonstrate political powerlessness more than our inability to pass the Employment Non-Discrimination Act.

Walter Dellinger has a piece in the National Review New Republica publication which could hardly be more conservative in which he suggests this: “Those who have criticized the decision not to defend DOMA…have given too little consideration to what a brief defending the law would have to say, and what a brief declining to defend could say instead.” If Frank Wolf and others inclined to defend DOMA choose to continue down this misguided path, (to paraphrase Mr. Dellinger) history will not be kind.

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