Could Justice take a dive?

By Phil Lawler ( bio - articles - email ) | Aug 18, 2009

 Let's imagine that you've been charged with a serious crime. You hire a good lawyer and prepare to mount a vigorous defense. You're innocent, naturally, and you plan to prove it.

Then, just before the trial begins, you hear that your lawyer has told colleagues that people like you should rot in jail. How confident would you be that your lawyer was going to give you the best possible representation in court? Not very.

Now let's take a slightly different case. The US Congress passed the Defense of Marriage Act. That law is being challenged by homosexual couples. The Justice Department is defending the law, as it defends all federal laws that undergo court challenges. But the people at the Justice Department work for President Obama, and Obama has said that he would like to see DOMA repealed. 

The President says that he'd like to persuade Congress to overturn the law. But that would involve a costly political battle. It would be much easier, from his perspective, if the Supreme Court ruled that DOMA is unconstitutional, and the law was wiped off the books without requiring the White House to spend any political capital. 

I don't mean to suggest that the Justice Department will deliberately undermine the defense of DOMA. But I doubt that the Obama appointees at the top ranks of the Justice Department regard this case as their top priority. They'll do their duty... but no more. The defense might not be conducted by the brightest lawyers in the department; the legal strategy might not be inspired or aggressive. Don't expect a ringing endorsement of DOMA, complete with the rhetorical flourishes that might give a boost to the defenders of traditional marriage in the legislative realm. That's exactly the sort of defense the White House does not want in this case. DOMA may survive the court challenge, but if it does, President Obama doesn't want any leftovers from the oral arguments hanging around to complicate things as he works for its repeal.