Traditionally, in arguing cases to the court, there have been a very limited number of available types of legal authority: cases, statutes, administrative rules, and law review articles (with the last being advisory only) have pretty much made up the universe of things the court needs to consider. In this Age of Obama, though, there’s a new authority: Obama himself. Yup. In an anti-Prop 8 lawsuit, the plaintiffs are citing an Obama speech as legal authority (emphasis mine):
An attorney for the couple said he will argue that the administration is on the wrong side of the case, in light of Obama’s latest comments.
“I’m not sure who the attorneys for the United States are representing,” attorney Richard Gilbert said.
Pressed by gay-rights groups to live up to his campaign promise to be a “fierce advocate” of equality for gays and lesbians, Obama denounced the 1996 law Wednesday while announcing limited benefits to the same-sex partners of federal employees.
“Unfortunately, my administration is not authorized by existing federal law to provide same-sex couples with the full range of benefits enjoyed by heterosexual married couples,” the president said. “That’s why I stand by my long-standing commitment to work with Congress to repeal the so-called Defense of Marriage Act.
“It’s discriminatory, it interferes with states’ rights, and it’s time we overturned it,” Obama said.
Obama also criticized the law as a presidential candidate. But as president, he was speaking with more authority - and his statement that the law was discriminatory appeared to contradict what his Justice Department argued only six days earlier in Smelt and Hammer’s case.
Now, one can certainly quote Obama’s statement as part of the argument section in a legal brief, but it’s apparent that the suing couple want to cite him as law. Even the Chron, though, is not so sure, as it cites two law professors who point out that, as far as the workings of the court go, Obama just doesn’t rank with a statute or case precedent:
Two law professors had a different view, saying Obama’s statements were noteworthy but probably had no legal effect.
“I would say Obama was speaking in a nonlegal manner … more policy oriented,” said Vikram Amar of UC Davis. He said the president may have used “discriminatory” as a term of moral condemnation, while the Justice Department used a narrower legal definition to argue that the law did not violate anyone’s rights.
In a way, though, this lawsuit illustrates something kind of sad, which is the way in which supporters of gay marriage are trying to dig their idol’s feet out of the clay.
What I see when I read my “real me” facebook page (where a lot of my old friends are either gay or gay-friendly), is that many gays feel betrayed by Obama’s stance on gay marriage. They’re unimpressed by his speeches about his own feelings on gay marriage, since his own government is actively continuing the Bush era policies. Now that he’s president, Obama, despite setting up straw men left and right to maintain himself in the magisterial middle, is finding it hard to be all things to all people.