DOJ's Big Step

In Golinski, the country got a befitting birthday gift

President Obama last week put wind in his re-election sails with a big move on the marriage front. In so doing, he contrasted himself nicely with Tea Party Republican Michele Bachmann. Let’s begin with the YouTube video of Bachmann’s husband calling gay people barbarians.

“We have to understand,” Marcus Bachmann says. “Barbarians need to be educated. They need to be disciplined. And just because someone feels it or thinks it doesn’t mean that we are supposed to go down that road.”

Meanwhile, The Advocate notes, ”Michele Bachmann, who has a lesbian stepsister, has referred to homosexuality as ‘bondage’ and ‘dysfunction,’ and claimed that encouraging young people to be tolerant of gays is ‘child abuse.’ She has also said that being gay is ‘from Satan.”’

The triumph of the willfully ignorant is their blithe obliviousness to unwelcome evidence and argument. Bachmann, who attacks Medicaid spending, is unfazed by charges of hypocrisy over her husband’s counseling service — a source of her family income — having received more than $137,000 in Medicaid payments since 2005, according to Michael Isikoff of NBC News.

Bachmann’s campaign-fundraising prowess ensures that her provocations can continue pulling the Republican field rightward long into the primary season, even if she loses. Experience suggests that Obama’s greater rationality and cooler demeanor will wear better; but the stubborn jobless rate could still fuel a loss if Democrats are too demoralized or divided to make their case.

After the marriage-equality victory in New York, my own enthusiasm took a hit because of President Obama’s apparent reluctance to “Evolve Already,” to quote the button Dan Savage wore to the White House LGBT Pride Month reception on June 29.

Given Obama’s signed statement in 1996 supporting equal marriage rights, I wondered why he wasn’t reconsidering his subsequent caution on the issue in light of voters’ more recent shift to majority support. Gov. Andrew Cuomo’s triumph in Albany, dependent on a GOP-controlled State Senate and boosted by Wall Street billionaires, showed the Gay Panic well is running dry.

Perhaps the president took Savage’s button to heart. Two days later, on July 1, he took a big step in his evolution when his Department of Justice filed a sharply written brief in Karen Golinski’s federal lawsuit seeking equal health benefits for her wife. The brief begins:

”Section 3 of the Defense of Marriage Act, 1 U.S.C. 7 (‘DOMA’), unconstitutionally discriminates. It treats same-sex couples who are legally married under their states’ laws differently than similarly situated opposite-sex couples, denying them the status, recognition, and significant federal benefits otherwise available to married persons. Under well-established factors set forth by the Supreme Court, discrimination based on sexual orientation is subject to heightened scrutiny. Under that standard of review, Section 3 of DOMA is unconstitutional.”

Here the Justice Department upholds the federal rights of pro-equality states while leaving other states alone, thereby breaching the wall of federal inequality. The Department of Justice was responding to a motion to dismiss by attorney Paul Clement, who was hired by Republicans after Obama stopped defending DOMA.

The Justice Department makes the case that gays are a suspect class under Equal Protection law by describing the history of anti-gay discrimination by government and private parties; arguing that sexual orientation is immutable; showing that gays are a minority with limited political power; and demonstrating that the discrimination relates to no legitimate policy objective. It concludes that, “Section 3 was motivated in substantial part by animus toward gay and lesbian individuals and their intimate relationships.”

This is a crucial step forward — a big effin’ deal, as Vice President Biden would say. With its brief in Golinski v. Office of Personnel Management, the Obama administration gave America a lovely and practical 235th birthday present, and highlighted the electoral stakes in 2012.

Richard J. Rosendall is a writer and activist. He can be reached at rrosendall@starpower.net.

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