Obama DOJ makes historic shift on DOMA, in the middle of the night so no one would notice

I don’t mean to always be throwing rain on the parade, but the reason I started AMERICAblog was to inform you of the news within the news: To inform you, based on my more than 20 years experience in national politics, of what was really happening, not just what they report in the papers. That’s why I have to play the role of Debbie Downer with regards to this story that the administration is now filing briefs on behalf of gay plaintiffs challenging DOMA in court.

Don’t get me wrong. The administration’s brief is historic. It’s a big deal, as Lambda Legal noted in its press release the other day. The problem is that the brief was apparently filed late on a Friday night at the beginning of a major holiday weekend. In Washington, DC, the only news you leak late on a Friday night, not to mention 4th of July weekend, is news you want to bury. That’s my problem with all of this. From all appearances, the administration didn’t want the mainstream media reporting on the fact that President Obama had evolved quite significantly on DOMA, far beyond simply no longer defending the anti-gay law in court. And their apparent embarrassment over just having done quite a good thing is a rather disturbing problem.

First, here’s Lambda Legal:

On Friday, the U.S. Department of Justice (DOJ) filed a brief strongly arguing that the Defense of Marriage Act (DOMA) is unconstitutional in a case brought by Lambda Legal and Morrison & Foerster LLP on behalf of Karen Golinski, a lesbian federal court employee denied medical coverage for her wife, whom she married when same-sex couples could do so in California. The DOJ had previously announced they would no longer defend DOMA, but this is the first legal filing in the country in which they have fully argued to a court that DOMA is unconstitutional. They asked the federal court not to dismiss Golinski’s claim.

The law is still being defended by legal counsel hired by the leadership of the House of Representatives.

“DOMA is unconstitutional and there are no reasonable arguments left to defend it,” said Lambda Legal Staff Attorney Tara Borelli who is representing Golinski. “The government itself has now forcefully argued that the marriages of same-sex couples cannot be treated as different and inferior under the law, and that any laws that treat lesbian and gay people differently must be reviewed with heightened scrutiny and presumed to be unconstitutional. Lambda Legal has been arguing that for years — it’s great to have them on our side. The Department of Justice is living up to its name in seeking to uphold the constitutional guarantee of equality for lesbian and gay people.”

The DOJ brief offers a detailed description of the history of discrimination by the government against lesbians and gay men, concluding: “The federal government has played a significant and regrettable role in the history of discrimination against gay and lesbian individuals.” The brief also provides evidence that passage of DOMA in 1996 was motivated by prejudice against gay people. After putting forth a thorough argument that laws that treat lesbian and gay people differently must be subject to heightened scrutiny, the DOJ concludes that DOMA fails to meet the required legal test and is unconstitutional.

“This is an historic shift with enormous significance,” Borelli said. “As more courts adopt this analysis, DOMA will fall along with other laws that set lesbian and gay people apart for unequal treatment.”

This is huge. So why didn’t the Justice Department submit the brief earlier in the day when the White House itself could have crowed about the accomplishment, and the mainstream media could have covered it? The brief had to be filed by that evening, not DURING that evening. It could have been filed a day before, a week before, it was up to DOJ.  So why file it in the middle of the night when it’s guaranteed no one will cover it?

We’re to believe that the week the President is meeting with gay community leaders at the White House to celebrate the anniversary of Stonewall (last Wednesday), the week the President is coming under incredible media scrutiny and criticism of his lack of evolution on gay marriage, the administration, rather than tout a clear example of the President’s significant evolution on the larger issue of marriage equality (by actively opposing DOMA in court), thus silencing critics of the President’s lack of evolution in the media and in the community, the administration chose instead to have the brief filed and made public late on a Friday night on a holiday weekend when it would be guaranteed that no one would hear about it.

This was either intentional, or criminally negligent. And it’s hard to believe the latter.

DOMA wasn’t the first gay bimbo eruption the Obama administration faced, but it was certainly the biggest. It was the administration’s anti-gay DOMA brief, the one that invoked laws against incest and pedophilia to justify laws against gay marriage, that caused the first and most serious rupture with the community. It’s therefore curious that the Obama administration didn’t try to take advantage of this new “historic” brief opposing DOMA. They could have taken things full circle and seriously helped to expunge the original sin of that initial brief.  So why didn’t they?

Some might say that it’s not clear the White House even knew the brief was coming out. After all, the President can’t be aware of EVERYTHING taking place in every agency at every minute.

That’s bunk.  We’re to believe that nobody in the Justice Department tipped off the White House that they were about to file a historic brief in support of gay plaintiff’s challenging the constitutionality of DOMA in the middle of the White House’s gay pride week celebrations where the President himself was meeting gay leaders, and facing considerable scrutiny for his non-evolved views on marriage equality.  No one thought it might be important to let the White House know of this huge shift of policy taking place in the middle of “gay week” at 1600 Pennsylvania?

Right.

More likely is that DOJ tipped off a senior White House official that the brief was coming – hell, they probably asked the White House if they could do it at all – the President was alerted to the fact in advance, and it was mutually agreed that the brief would be filed late Friday night.

Now, is it possible that the late filing of the brief was not intended to hide the story from the mainstream media in order to spare the President the “embarrassment” of being seen as more pro-gay than he’d like? Perhaps. But that would mean that from the President on down, everyone felt it was more important to finish the brief whenever it was finished, even if that meant it might not be done until late Friday night when the administration would not be able to take full political advantage of the brief’s legal change of heart. More important than asking a few Justice Department lawyers to pull a few late-nights at the office to get the brief done, say, 12 hours earlier, or even better, 60 hours earlier, so the President could announce history in the making at the White House Stonewall reception, which would have gotten a lot of coverage in the media.

If the White House and DOJ seriously got together and decided that it was better to not take political advantage of the filing of this brief, then this administration has a serious messaging problem.  And while it does in fact have such a problem on issue after issue, they can’t seriously be this obtuse.

Then again, and this is just a hunch, maybe this was the President’s decision. Maybe he was informed of the brief, knew he was meeting gay leaders within days, knew the media was beating the bejesus out of him on the issue of “not evolving,” and
rather than use the brief to silence both the media and his critics, and shore up the community’s support for his re-election, by boldly holding forth proof that he had really and truly evolved, the President thought it better to be “above the fray” by burying the entire story in order to ensure that no one could say he was “politicizing” the Justice Department (as if his magnanimity would be enough to stop them).  And in any case, his advisers probably told him that he didn’t need to feed the incessant questions he was getting about marriage by doing something big on DOMA, so letting it come out on a Friday night of a holiday weekend had the dual benefit of killing the story as well.

Yes, doing something right, and issuing a press release about it during normal business hours, is quite possibly considered “gauche” by this President.

But that’s the way the world works in politics. You have to sing your own praises because no one is going to do it for you. You have to release information in a way that will guarantee maximum coverage to maximum benefit – that doesn’t just benefit the President, it benefits the policy, which benefits all of us. It’s not gauche, it’s not tacky, it’s not a Republican dirty trick. It’s a simple fact of life in politics dating back a few thousand years. Good PR doesn’t just work, it’s vital, to a successful administration.

That’s why I’m forced to conclude the following about this entire episode:

1) The President knew this brief was coming, and probably approved it and saw it before it was filed.
2) He made no effort to have the brief finished in time for either the Stonewall reception or in time for media to cover it on Friday.
3) The President didn’t want mainstream media coverage on this issue at all.
4) His decision was either based on some odd sense of making DOJ apolitical or outright political homophobia (not wanting to be seen as “too” pro-gay, lest he anger the Republicans, independents, blah blah blah).

And a final point about this notion of making DOJ political, or politicizing the issue of DOMA. Newsflash, the issue (and the agency) already is political. The Republicans already think that the President made a political decision when choosing to no longer defend DOMA. And he did. Just as the President’s previous support, then non-support, and now supposed evolution on marriage is an entirely political decision. Every decision an administration makes it political or at least tinged by politics. And even if it weren’t, it will be perceived as such by the Republicans, regardless of what the administration does or doesn’t do. To shoot yourself in the foot, PR-wise, in order to woo Republicans who won’t ever agree with you anyway, is foolhardy.

Or to put it another way, the GOP already believes, and is telling people, that Obama is for gay marriage. So why miss opportunities like this, with people who want to like you, with people you need for your re-election, in an effort to win over people who will never vote for you, and want to destroy you?

Why, indeed.

That is what I have problem with this historic moment.  Even when doing something truly beneficial for our community, the administration has to find a way to muck it up.


Follow me on Twitter: @aravosis | @americablog | @americabloggay | Facebook | Instagram | Google+ | LinkedIn. John Aravosis is the Executive Editor of AMERICAblog, which he founded in 2004. He has a joint law degree (JD) and masters in Foreign Service from Georgetown; and has worked in the US Senate, World Bank, Children's Defense Fund, the United Nations Development Programme, and as a stringer for the Economist. He is a frequent TV pundit, having appeared on the O'Reilly Factor, Hardball, World News Tonight, Nightline, AM Joy & Reliable Sources, among others. John lives in Washington, DC. .

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