The U.S. Department of Justice has announced it will no longer defend the 1996 Defense of Marriage Act, which bars federal recognition of same-sex marriages. Glenn Greenwald, a constitutional law attorney and legal blogger for Salon.com, who is openly gay, talks about the significance of this decision and how DOMA affected his own choice to live in Brazil with his partner, a Brazilian national. “This is one of those rare instances where I think true and unqualified praise is deserved for the White House,” Greenwald says. [includes rush transcript]
AMY GOODMAN: Our guest is the legal blogger for Salon.com, Glenn Greenwald. Juan?
JUAN GONZALEZ: Well, Glenn, I want to ask you about another major story. Attorney General Eric Holder announced on Wednesday that the Justice Department will no longer defend the 1996 Defense of Marriage Act, which barred federal recognition of same-sex marriages. Talk about the significance of this decision.
GLENN GREENWALD: This is one of those rare instances where I think true and kind of unqualified praise is deserved for the White House. This was not something that was expected or even really demanded by gay organizations and leading gay groups. This had been an issue for some time, that the administration was actively defending the constitutionality of the Defense of Marriage Act. Even lower courts had said that it was unconstitutional, and yet the Justice Department continued to defend it. And the excuse that was given was that, “Well, as the Justice Department, we’re obligated to defend the constitutionality of statutes, even when we don’t agree with them and even when we think they’re unconstitutional.” Well, that excuse has now been thrown by the wayside, as the administration reversed itself and has said that they will no longer defend the constitutionality of DOMA, and in fact will argue to courts that they think it’s actually unconstitutional.
The Defense of Marriage Act is a truly pernicious piece of legislation that was passed with overwhelming support of both parties in the mid-1990s under President Clinton. And what it does is there’s a slew of marital rights, 800 legal rights or so, very significant rights like survivor benefits for federal benefits, the right to be exempt from estate tax, mostly — most important, I think, immigration rights for gay citizens who are in a relationship with a foreign national, that are given freely to opposite-sex couples but, as a result of DOMA, denied to same-sex couples. And the fact that the administration is now going to take the position that this law is unconstitutional — and even more significantly, will say that, in general, gay citizens should be treated the same as racial minorities and women and religious and ethnic minorities when it comes to analyzing laws that are aimed at them constitutionally — is a truly momentous step that this White House didn’t have to take and chose to.
JUAN GONZALEZ: Well, apparently, this has been in the works now for weeks, high-level meetings among the Justice Department officials and the White House about taking this stand. What prompted them at this particular point to do this?
GLENN GREENWALD: Well, so far, all the cases that had challenged the constitutionality of the Defense of Marriage Act were brought in circuits. The United States judicial system is divided into 11 circuits. And they’ve all been brought in circuits where there was very bad precedent against gay people and the question of whether they deserve heightened scrutiny under the Constitution. And so, the administration’s excuse was, “Well, in all these cases, we’re not saying that the law should be against gay people; we’re simply saying that binding precedent in these circuits means that lower court judges must find DOMA constitutional under this bad law.”
Now cases have been brought in New York in the Second Circuit, where there is no such authority on this question, and therefore the administration is going to be required in these cases to take a position not just about what the law is, but what they think the law should be. So they would have had to have stood up and said either, “We think that you should give gay people heightened scrutiny under the Constitution and therefore find this law unconstitutional,” or, “No, they should be denied this kind of scrutiny and protection, and you should find the law constitutional.” And apparently, they were unwilling, to their credit, to stand up and take that latter position, the anti-gay position, and to urge the Second Circuit to adopt it, and instead they’re going to say that gay people, with their history discrimination, should be given special scrutiny when laws are aimed at them.
AMY GOODMAN: Glenn, talk about how the marriage laws in this country have affected you, why you live in Brazil.
GLENN GREENWALD: Well, as I mentioned, one of the rights that is denied to same-sex couples are immigration rights. So, if you’re a gay citizen who enters into a spousal relationship with someone from another country — if you’re straight and you’re in an opposite-sex relationship, that foreign national is essentially automatically entitled to citizenship — to a green card and then citizenship rights, so they can work and live and study in the United States, and you can live with the person that you want to choose to live your life with. For gay couples in that situation, because of DOMA, for your partner, you cannot get immigration rights. So, if you’re a gay American, as I am, in that kind of a relationship — my partner is Brazilian — you cannot live in the United States with the person that you want to spend your life with, because the INS won’t recognize your relationship, won’t give them immigration rights.
So, Brazil, fortunately, is one of the now many Western civilized countries that does grant immigration rights to same-sex couples, even though they’re only a 25-year-old democracy. They were a military dictatorship until 1985. They have the world’s largest Catholic population of any country in the world. And yet, they refuse to put their gay citizens in the horrifying situation of having to choose either to exile themselves from their own country or to live away from their spouse. And so, we’re able to get — I’m able to get immigration rights in Brazil, which is why I live in Brazil with my partner.
The one thing I should say, though, is I am actually lucky. A lot of — there’s tens of thousands of gay Americans in this situation. In the globalized world, it’s now more common to have relationships with people who are from another country. For lots of people, they are in relationships with people from countries whose governments don’t give immigration rights or who are unable to move to another country. And there are thousands of people who are separated, thousands of miles away, from the person that they love or forced to live illegally in one country or the other, truly heinous circumstances that this law causes.
JUAN GONZALEZ: And is it your sense now with this change in the Obama administration’s position that this is already likely to become a major issue in the upcoming presidential campaign, at least for the most conservative sections of the Republican Party?
GLENN GREENWALD: Yeah. Interestingly, if you look at the reaction of Republican leaders yesterday, it was actually strangely muted. They didn’t rush to embrace this kind of cultural war rhetoric. John Boehner, for example, simply said that he questions why the President is choosing to focus on a divisive issue at a time when we should be focused on jobs — a pretty mild statement, considering. I think the Republican Party establishment has decided that they can remain in power best by focusing on issues of jobs and spending and the economy and not social issues. The problem is, they can’t do that, because such a large part of their base cares a lot about these issues and won’t tolerate that.
And so, I do think that it’s a politically risky thing for the Obama administration to do, because there are substantial numbers of people on the right, and even some independents, who draw the line at marriage. And this will be depicted as the President coming out in support of gay marriage, forcing gay marriage on people, even though it’s not that. And it is a politically risky thing to do. It’s the sort of thing Obama generally avoids and didn’t avoid here.
AMY GOODMAN: It’s astounding he is saying that about divisive issues as opposed to focusing on jobs, considering what the Republicans are doing right now in Washington, focusing particularly on, well, for example, abortion.
GLENN GREENWALD: Well, they just voted to defund Planned Parenthood, for example.
AMY GOODMAN: Not to mention the Corporation for Public Broadcasting.
GLENN GREENWALD: Right, and all kinds of other issues. So, of course, there’s gross hypocrisy in Boehner’s statement, but that’s not unusual.
AMY GOODMAN: One last question, very quickly, a follow-up on our discussion yesterday with Declan Walsh, who broke the story in The Guardian of Raymond Davis working for the CIA, when President Obama said he was a diplomat, the man in — the American in Lahore who opened fire on and killed two Pakistanis, causing also the suicide of the wife of one of the Pakistanis, because she thought Raymond Davis would get out. Talk about the significance of this. People here hardly know about this — it’s causing mayhem in Pakistan — and what the U.S. media did. While the foreign reporters were saying he’s CIA, the New York Times, the Washington Post held on to the Obama administration’s secret.
GLENN GREENWALD: Right. Well, in one sense, every country has had scandals like this, because diplomatic immunity often does force countries — it’s forced the United States — to release people who have committed horrible crimes, because they end up being diplomats or families of diplomats. That’s just how diplomatic immunity works. The problem here, though, is that this is part of an ongoing assault on the Pakistani people by the United States, and what is in question is the fact that he’s not really a diplomat, as President Obama called him “our diplomat in Pakistan.” He works for the CIA. He was previously employed by Blackwater. And so, he’s the kind of person that the Pakistanis hate the most and fear the most, which is someone who runs around their country without any constraints or limits, shooting civilians and people without any constraints by law.
And the fact that the President was out there calling him “our diplomat in Pakistan,” while American media outlets knew full well that he in fact worked for the CIA and Blackwater, was obviously newsworthy, the fact that the President is making misleading statements. And yet, these American media outlets, every last one of them, withheld and concealed that information from their readers at the President’s request. And it was only once The Guardian, the British newspaper, published it, when they learned about it, did the Obama administration then give license, essentially, to these papers to then publish it, and they now have. It’s obviously relevant to the conflict about why the Pakistanis are so angry. And yet the American media allowed government officials to make misleading statements while they sat on the key information.
AMY GOODMAN: Well, Glenn Greenwald, I want to thank you very much for being with us. Glenn Greenwald is constitutional law attorney, political and legal blogger for Salon.com, author of three books, his most recent, Great American Hypocrites: Toppling the Big Myths of Republican Politics. Thanks, Glenn.
GLENN GREENWALD: My pleasure.