In addition to the discussion of errors in the blogging on the DOMA brief, the other big story about the brief is that it hasn’t been much of a story, at least as far as the MSM press goes.
ABC’s Jake Tapper has done some good blogging on the issue, although nothing has made it on-air. CBS has also mentioned the controversy in its blog, as did MSNBC. The coverage was all quick, relying primarily on John Aravosis’ section-by-section analysis or Andrew Sullivan’s analysis.
The Associated Press had the main print story on the brief, with the NYT offering a single paragraph. The LA Times covered the story on its blog, and in a gay pride day story. The San Francisco Chronicle also covered the intial response.
The heavy lifting–and the best reporting–has been done by the traditional LGBT press. Kerry Eleveld of the Advocate did the smartest thing a reporter could do, which was call up a legal expert to better understand whether the brief made sense from a legal and litigation perspective.
Harvard professor Laurence Tribe told Eleveld that while he opposes DOMA, he believes DOJ was justified in its attack on the case.
Under the traditions of the solicitor general’s office, the government does have an obligation to provide a defense in any lawsuit where there is a plausible argument to be made, even if the president does not agree with the law.
There certainly are cases where the government declines to defend the law, but those are few and far between. If congress were to pass a law that flew directly in the face of a binding Supreme Court precedent — a law outlawing early-term abortion or a law providing for “separate but equal” schools — the obligation of the Justice Department to the Constitution would trump its obligation to defend the laws of congress.
But DOMA is in a gray area where there are experts like me, who think it’s unconstitutional, and you can find experts who hold the opposite view, and it’s certainly not a slam-dunk.
Another example of thorough, balanced coverage was done by Chris Johnson of the Washington Blade. Johnson’s first story included interviews with Robert Raben and Nan Hunter who provide more nuanced explanations of why DOJ did what it did in filing the brief.
Robert Raben, a former U.S. assistant attorney general for legislative affairs under President Clinton who’s gay, said a motion to dismiss a case targeting a federal law isn’t unusual because “the Department of Justice doesn’t have standing to decide which statutes they will or won’t defend.”
“The statute sucks,” Raben said. “It’s disgusting. We’ve opposed it from day one. We’ll continue to oppose it, but the Department of Justice is doing what the Department of Justice does, which is defend the statute.”
Nan Hunter, a lesbian Georgetown University law professor, also said the Justice Department “almost always defends the constitutionality of federal statutes.”
“When a federal statute is challenged as being unconstitutional, the policy of the Justice Department, with very few exceptions, is to defend the federal law, even if there’s a new administration that doesn’t agree with it,” she said.
While Raben accuses DOJ of saying “really stupid things,” Raben’s comments puts a spin on the problem that differed from what you were hearing in the noisy blogosphere.
“Like many lawyers, it’s over-argued,” he said. “There’s too much in there — much more than is necessary to state the opinion of the Department of Justice.”