On Barack Obama and DOMA
I remember sitting in my Federal Courts class during my third year of
law school when my professor, Mel Zarr, describing a string of cases
on some issue or another, asked me why the court rulings started to
change over time. I said it was because there was an election and the
new conservative judges were starting to implement their judicial
Some of my classmates (future inside-the-beltway smartypants) were
appalled that I had suggested that judges were “political.” I was
appalled at their naivete. And I’m just as appalled at how some of our
friends reacted yesterday to the Obama administration’s brief in
support of the Defense of Marriage Act (DOMA).
I took family law in my last semester of law school that just ended a month ago. Anne Coughlin is one of the most wonderful progressive professors one could hope to have at any law school , let alone UVa.
You can’t get through a modern family law course without discussing gay marriages and relationships. In one of our first classes to cover the topic, she solicited comments regarding the policy reasons for anti-gay marriage statutes – how they would be defended against the various “scrutiny” levels in courts.
After two or three fellow students proffered sanitized opinions re: statutory history, etc., I couldn’t keep my mouth shut any longer. I raised my hand and she called on me.
I said the obvious: that these laws can be dressed up in any number of ways, but really we know that there’s a pig under all of the lipstick. That the laws are the embodiment of a society riven by, at best, misunderstanding and fear, and at worst, rank hatred. I expressed frustration that we pretend – we allow the fiction to be perpetuated – that there was any “sound policy reason” of any kind driving the legislative result.
Even in Anne Coughlin’s class, that was heresy. In law school, you aren’t allowed to argue the obvious.
It’s frustrating, but there’s probably a good reason for that. In the end, the argument that will carry the day before any deciding court will most certainly not be “Religious fundamentalists have a grip on Republicans and Democrats are afraid of the polls, so this is the law we got – a law that obviously targets gays for no good reason.” The lawyers that argue the case for the good guys have to live within the reality of this contrived parallel universe that we call the Judiciary. And they are going to have to make their arguments within the rules of that universe.
The legal system kinda sucks.