'President Goldilocks' Heads for the Middle

Imagine if Goldilocks were president and had to chime in on something more controversial than porridge temperature? What if Goldilocks had to weigh in on the federal law that forces Uncle Sam to be mean to married gay couples by refusing to honor our marriage licenses?

Well, first Goldilocks' ringlets would curl tighter in horror as she read the Justice Department's June response to a challenge to that law: It compared gay marriage to incest. "That argument's too hard," she would declare.

Then, having heard gay Americans' howls of pain and disbelief at the brief, Goldilocks would listens to pleas that she instead tell judges that the harsh 1996 law misnamed the Defense of Marriage Act (DOMA) should be ruled unconstitutional. "That argument's too soft," she would sigh.

Always most comfy in the middle, Goldilocks would embrace saying DOMA is a very bad law but judges shouldn't be the ones to erase it. "That argument's just right," Goldilocks would conclude.

Now, I suspect President Obama has never thought of himself as Goldilocks. But when it comes to how his administration has responded to a lawsuit challenging DOMA's constitutionality, he's doing a darn good imitation.

The latest peek at Obama's evolving strategy on gay marriage came with the Justice Department's second brief in Smelt v. U.S., brought by Arthur Smelt and Christopher Hammer, who married in California before voters last November banned future gay marriages there.

Gone are the offensive tone and hostile language of the first Justice brief. The new one stresses that the Obama administration views DOMA as "discriminatory and supports its repeal," but feels a responsibility to defend acts of Congress in court "as long as reasonable arguments can be made in support of their constitutionality."

Evan Wolfson, executive director of Freedom to Marry, translates that mixed message to judges as, "This law is discriminatory — uphold it."

The president's message to Congress is much more straightforward: This law is discriminatory — repeal it.

That's the essence of the encouraging White House statement issued on the very day that Justice unveiled its second brief. Obama reiterated his campaign pledge to "work with Congress to repeal DOMA."

What's particularly heartening about the new brief itself is that it flatly states "the United States does not believe that DOMA is rationally related to any legitimate government interest in procreation and child-rearing." As the brief points out, the American Academy of Pediatrics and many other professional associations have found that "children raised by gay and lesbian parents are as likely to be well-adjusted" as other kids.

In a wry touch, the brief recruits anti-gay Justice Antonin Scalia to further dismantle the procreation argument, quoting his dissent in Lawrence v. Texas that procreation isn't an argument against gay marriage because "the sterile and the elderly are allowed to marry."

The new brief fumbles in continuing to ask judges to use their most lax gauge — "rational basis" review — in measuring whether DOMA is constitutional:

"Under that deferential standard of review, this court should find that Congress could reasonably have concluded that there is a legitimate government interest in maintaining the status quo regarding the distribution of federal benefits in the face of serious and fluid policy differences in and among the states."

As gay legal expert Arthur Leonard complains, "That's like saying that any discriminatory law can be frozen in place ... so long as there is political controversy among the states."

Upholding a discriminatory law should never be easy. And the Obama administration should say so when it responds to powerful DOMA challenges headed its way from Massachusetts — one by eight married couples and three widowers, the other by the state attorney general.

The harm done by DOMA is no fairy tale. Defending it anywhere will never be "just right."

Deb Price of The Detroit News writes the first nationally syndicated column on gay issues. To find out more about Deb Price and read features by other Creators Syndicate writers and cartoonists, visit the Creators Syndicate web page at www.creators.com.

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