Reporting on the DOMA Brief, Part 2

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.

Eleveld had done a balanced piece on the initial outrage and followed it up with an interview with the highest ranking openly LGBT person in the Obama administration, John Berry.

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.”


3 Responses

  1. With respect, you’re guilty of some sloppy reporting yourself, for you declaredthat Eleveld’s Tribe interview is a priori “thorough” and “balanced” when it is neither.

    1. She did not disclose that Tribe, whom both she and you posit as an objective legal expert, is, in fact, an extremely close personal friend of the President, having been his Constitutional law professor at Harvard. Tribe appeared in at least one TV commercial for Obama during the primaries, and “called ABC News at the request of the Obama campaign” after the LOGO forum to justify the candidate’s positions [and denounce those of Sen. Clinton] on the very subject of Eleveld’s article: DOMA.


    2. She also did not report what was directly relevant to understanding what is “behind the curtain” where this unnecessary, dishonest, incoherent, ignoble, and indefensible attack on gay equality was authored and approved.

    Specifically, that Tribe seemed to have never been asked to do contact the media again and why. He apparently revealed too much about what Obama’s ENTIRE positions were despite his grandstanding about being superior to Sen. Clinton because he supported repeal of “ALL” of DOMA. In short, Obama would still support a state’s right to do whatever it wanted re gay unions, good OR bad, even after DOMA was repealed. That “states’ rights” prime directive was reitereated in Obama’s statement about the Iowa Supreme Court decision and reflected in the DOMA brief.


    3. Where was the “balance” when Eleveld quoted ONLY Tribe in the article even if he WERE indisputably “objective,” she should have quoted directly and by name other “experts” who disagree with him rather than just let him refer to them unnamed thus stacking the proverbial deck in favor of HIS personally biased opinion alone.

    Thank you.

  2. The Tribe comments were typical of the commentary you saw in the blogosphere from non-LGBT people and legal analysts who aren’t directly involved in this kind of litigation. When reporters (and bloggers) were able to get people to step back from the anger, you got commentary that put DOJ’s brief in some perspective.

    • And I still assert that HIS “perspective” was entirely shaded by his PERSONAL relationship with the person he was, in effect, defending. Tribe: Obama was “the “best student I ever had” and the “most exciting research assistant.”

      Further, Tribe has OFTEN been “directly involved in this kind of litigation,” e.g., representing gays in “Board of Education v. National Gay Task Force” and “Bowers v. Hardwick,” as well as having written the ACLU’s amicus curiae brief supporting Lawrence in “Lawrence v. Texas,” and written about the constitutionality of DOMA in the “New York Times,” et al.

      In ANY case, it was at BEST poor journalism for Eleveld not to disclose Tribe’s intimate relationship with Obama, nor interview anyone who disagreed with him, thus turning a “news” piece into a de facto editorial.

      And, to my greater point here, it’s inconsistent with your complaints about others’ alleged poor journalistic standards in Part 1 of this thread not to acknowledge that.

      Forgive me if I smell a whiff of someone else cherry picking to support his own “perspective.”

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