"In times of universal deceit, telling the truth becomes a revolutionary act."(George Orwell)

As the LBGT community decries the Obama Administration’s recent defense of the indefensible Defense of Marriage Act ( DOMA) the community ought to be holding their own activists feet to the fire. Propagandists and bloggers really must learn to make distinctions with very real legal differences and to stop mindlessly cutting and pasting every gossipy piece of rubbish delivered to them. They must stop accepting red-herrings cavalierly tossed-over by our own Washington insiders and national activists who cry victim even though it is they who set their own trap and got snared in it. What you see unfolding is not merely the result of capitulation by failing to speak truth to lies but the result of actually collaborating in the exploitation of our legal ignorance. The blame for this lies as much with our own activists and leadership as it does with Barack Obama. Indeed, more so.

Ask yourself: Exactly why is the Obama Administration vigorously defending DOMA at the same time he claims an intent to repeal it.? You can bet it's not for the reasons you are told. I have already stated why our activists are right - but for the wrong reasons - when they complain that Obama defends a defenseless and invidious gay Jim Crow law. Our LGBT ‘leadership’ didn’t merely invite this betrayal they helped to perpetrate it. This is where the real betrayal is. Now that they have willingly been made fools of they hide behind smoke and mirrors.

They tell us that a his ‘zealous advocacy’ of DOMA is inconsistent with his promise to repeal it. This is rubbish. There is absolutely nothing inconsistent about it at all. They are mixing apple with oranges. There is a distinction with a profound difference between seeking to repeal a law and seeking to have it struck down in court on constitutional grounds. The legal consequence that flow from each are different in the extreme on this issue. It is critical that you understand why Obama must repeal this law before the courts strike it down.

Unlike ‘repeal’, which will entail distraction and compromise, the legal consequences are entirely different if a court strikes DOMA down on constitutional grounds. That would be a disaster for Obama and I believe he will do all he can to prevent it. Why? If you google around you will find that even the people most involved with drafting DOMA later agreed it is unconstitutional and that Congress exceeded it’s legal bounds. Indeed most legal scholars agree on this and that includes Barack Obama’s own Harvard law professor the esteemed Laurence H. Tribe. It is critical that the community understand the treachery at play.

Remember Obama’s platform: Marriage is between a man and a woman and a ‘state’s rights’ matter. If DOMA is struck down in federal court that will mean,

(1) That marriage is a ‘fundamental’ right under the U.S. Constitution. If that’s true then,

(2) Congress exceeded it’s powers because DOMA can not pass constututional muster under the requisite, ‘fatal in fact’, “strict scrutiny” test because the legislature can not show both a “compelling legislative interest and that there is ‘no less restrictive alternative’ to achieving that goal. Equal protection analysis is always a means v. ends analysis.

(3) As a result all similar state Gay DOMA Jim Crow laws will also fall for they too can not pass constitutional muster under that same ‘strict scrutiny’ test.’ The result? Bang all DOMA gay Jim Crow laws are swept away. And the punch line

(4) Since there can be no ‘compelling legislative interest’ in denying this ‘suspect classification’ of ‘persons’ a ‘fundamental’ secular right where there are clearly less restrictive alternatives the legislature can not restrict the secular marriage contract to a man and a woman.

As you can see, this is not complicated law to  comprehend. The result? Winner takes all! No compromises, no loopholes. A nice, clean, wipe-out with profound legal consequences. Match point! Check mate! End game! Obama’s entire platform, the ’separate but equal’ gay Jim Crow ‘civil union’ compromise, ‘states’ rights’, marriage between a man and a women, all fall down like a house of cards.

Now then, you think gays are angry? If that happens imagine the backlash of the religious right - especially the fundamentalist black churches that provided the critical tipping-point to pull-of California’s Prop H8. Imagine, if you can, the fundamentalist backlash that will follow if the Obama’s Department of Justice is responsible for this. You think gays feel betrayed?! Witness, my friends, The God Strategy in action here. Unless you have been living in a cave in East Afghanistan it can be no secret that Obama has always elevated Church over State. Surely you have noticed that this so–called ‘civil rights lawyer’ has never, not even once, provided even one legal reason for this denial of a legal right. His only reason consistently and unequivocally given for denial if this civil right has been Religion, Religion, and more Religion.

This unconstitutional legal claptrap should not get past a second year law student but, aside from myself, not one activist lawyer or Washington insider has called Obama out on this travesty and mockery of the First Amendment. Worse yet, none of them have educated you because your legal ignorance serves their agenda. This makes it easy to pull the wool over your eyes. There has not been anything like real debate, no “marketplace of free ideas” that is “free, robust, and wide open.” Indeed, unless you tow the line and swallow the conventional wisdom crammed down your throats by gay leaders and propagandists who pawn themselves off as journalists, all dissent has been quashed.

So, ask yourselves: When a ‘civil rights lawyer’ has the audacity to tell you that he would deny you one of the most treasured human rights known to man and do that for no other reason than religion, if you march in lockstep on two left feet, do you really think he respects your intelligence and your human dignity? That platform admits an intent to violate the First Amendment (‘Separation of Church and State) for the invidious purpose if denying a ‘fundamental’ civil right (marriage) that us guaranteed under the Fourteenth Amendment (‘equal protection’ of the law).  That is not one but two violations of the U.S. Constitution.  Arguably it is also a violation of any public official’s oath of office.  When our activists and advocates do not call him out on this can anyone be surprised that he then defends DOMA in court?  And when he offers you a Jim Crow ‘separate but [not] equal’ seat in the back of the bus and you hail this as ‘Liberal’, do you really think you’ll get authentic respect after you participated in the very frauds you now claim to be a victim of?

As to the notion that the Department of Justice must defend DOMA in court I’ve already addressed that but consider this: During the Kennedy presidency more than 17 states still had Jim Crow anti-miscegenation laws that criminalized inter-racial marriage. Barack Obama’s own parents were subject to that law in many states. After Kennedy was assassinated Lyndon Johnson became president and it was his administration that enacted most of the civil rights legislation Kennedy envisioned. In 1967, during Johnson’s term, the Supreme Court struck down all state anti-miscegenation laws in Loving .v Virginia.

In a bureaucratic “fuck you” that would delight Dick Cheney, the now infamous DOMA brief in this matter was filed on the anniversary of Loving. Everything in politics is calculated. These are deliberate 'signals' being sent out. 

But presume that before Loving came down Congress, growing fearful of seeing these Jim Crow laws repealed or struck down by state high courts, enacted a federal law to circumvent state actions and protect other Jim Crow states from having to recognize interracial marriage. 'States' rights'!' The classic Dixiecrat, segregationist, Jim Crow defense.  “The definition of marriage in the United States shall be a union between a man and a woman of the same race.”

Now then suppose that Julian Bond or Sidney Poitier  or even Clarence Thomas and their white wives challenged that law because, though legally married in one state they could not move to Virginia. (Indeed, how ironic that Justice Thomas and his white wife now live in Virginia!)  Thus two of their ‘fundamental’ rights would be denied and abrogated (1) the 'fundamental' Right to Marry and (2) the ‘fundamental’ right to Inter-State Travel - which is a 'fundamental' right that most of our activists have totally overlooked! Race aside, this is exactly the dynamic of the plaintiffs’ in the case that underlies the infamous DOMA brief here - same kind of law and the same fact pattern. Virtually on all fours!

Now then, can anyone actually think that President Kennedy or the “Great Society” Johnson Administration would launch a vigorous defense of that Jim Crow law claiming it was their sworn duty to uphold law passed by Congress no matter how offensive or repugnant they admitted that law was? Balderdash! Can anyone really believe that would happen? What would be the result? I submit you would see cities break to riot. “Burn baby burn!” At the very least you would see civil disobedience sweep the nation. The Democrats would be castigated and driven out of office. The president’s African-American appointees would resign in droves. Have you seen one Gucci-shoed Obama staffer resign? They had to be humiliated and threatened with outing in the press before they’d even drop out of a cocktail party fund-raiser!

When Obama does this to us there is nary a bubble of protest in the mainstream press. And as he betrays his promise to us please notice that he wasted no time in keeping his promises to the Church. History tells us that marriage between Church and State is always a bond forged in Hell. It is a Faustian bargain and the devil always pays his dues. Obama has always elevated Church over State.  Black activists of the Civil Rights Movement were willing to suffer police dogs and fire hoses but our activists wouldn't even boycott a fancy mega-buck fund-raiser untill the Washington Blade promised to be there with camera in hand to film the lap-dogs as they entered.

This is why many blacks bristle when we compare our fight to theirs. They FOUGHT. Non-violently but they fought and they spilled their blood. Respect is earned and they earned respect. They were never so deluded as to think that a festive March on Washington would win them their rights. A lovely and powerful gesture of solidarity true but it was a celebration of what they had done and a commitment to push even harder. Our activists on the other hand act like toothless sycophantic lap dogs. After all, we don’t want to be impolite! We might not get invited to a cocktail party. And don't get uppity but watch out for the backlash quiggers.

After the 2004 victory Obama appeared on Oprah  and she asked him if he could to go to Washington and still "be real." He said, " ... I think the biggest mistake you can make in politics, [and] in life ... is to end up trying to conform to what you think is going to keep you in office and you start taking the safe votes and avoiding controversy and not speaking out on issues of injustice because it might ruffle feathers." [Applause! Applause!] But Obama had already done that.  First, in 1996, when Barack Obama was running for the Illinois Senate, he completed a survey by Outlines, a gay community newspaper in Chicago, asking if he supported same-sex marriage.  Other candidates merely indicated yes or no but Obama typed in his response and signed it.  With unmistakable clarity he wrote "I favor legalizing same-sex marriages, and would fight efforts to prohibit such marriages."

Hypocrisy! Hypocrisy! Hypocrisy!

Then, in April 2004, and before Obama appeared on Oprah, journalist Kevin McCullough, reported that, in a letter to supporters, Obama agreed with homosexuals, believed that gay marriage should be granted, and that our plight is exactly like that of African Americans in the 1960s. This put him at odds with growing numbers of outspoken black clergy. When attacked by this faction his Machiavellian calculation and tactical considerations trumped conviction and principal. He then denied supporting same-sex marriage, but only civil unions. He conformed to what he thought would keep him in office, took the safe votes, and avoided controversy that might ruffle feathers. 

Hypocrisy! Hypocrisy! Hypocrisy!

Quaking in fear of the screeching preacher backlashers Obama again, conformed to what would keep him office, he took the safe votes to avoid controversy and not speak out on issues of injustice because he feared ruffling the feathers of bigoted preachers.  So he simply promised to trash the First Amendment. Church trumps State.  This is not leadership but capitulation the an evil that our founding fathers most reviled.  It utterly disdains what is first in our Bill of Rights, first in our Constitution, and first in the First Amendment because it was first and foremost on our founding fathers’ minds: Separation of Church and State.  Obama's message is clear, 'Church trumps State.' 

So understand the distinction with a profound legal difference and the diabolical treachery of Obama’s God Strategy. Do not worry, Obama does want to repeal DOMA and now you know why he insists on that as opposed to defeating it in court. Because, to use his own words from Dreams From My Father, if he can still restrict our rights and prevent national equality in the name of ‘pragmatism’, if he can do this by use of an acrimonious legislative process, he can then eschew personal culpability for a Booker T compromise that will be an effective means of keeping his promise to the religious right and, by that device, “keep us on the outside looking in.”  Both promises are kept (well, sort of): we get repeal of DOMA while states continue to discriminate with gay Jim Crow laws and marriage remains between a man and a woman. Church trumps State. We then get Jim Crow civil unions and the exhausting and expensive legal battles will continue for decades. Millions of Americans and their children will be kicked to the back of the bus and denied equality.  The God Strategy wins. Church trumps State.  As Christopher Hitchens has pleaded, "Mr. Jefferson! Build up this wall!"

Face it, Barack Obama doesn’t need Quigger money any more.  He will continue to simply hold his finger to the wind to see which way it blows and then dole out civil rights piecemeal.  He will toss down crumbs and soothe the insiders’ egos with photo-ops and ‘special White House’ gatherings throughout this term.  Expect token gestures, mixed-messages, and always a wink to the backlashers. Any available cash we can muster in these troubled times is chump-change compared to what the religious conservatives feed into his coffers with, of course, a reasonable expectation of an executive order kickback in the form of a taxpayers' subsidy for cash-hungry churches that already pay no taxes in support of the national defense or the commonweal.  We need to raise less cash and more Hell.  Essentially the LGBT community has two choices: either we can ACT UP and FIGHT BACK or just continue to bend over and let them drive.

 John P. Mortimer, Esq.  

Copyright © 2009 by John P. Mortimer

 This is copyrighted material protected under International and Pan-American Copyrights Conventions. All rights are reserved including the right of reproduction in whole or in part in any form.

 John P. Mortimer is a writer, an activist and a retired civil rights attorney who is currently inactive with the State Bar. He resides in Northern California. This information is in no way mean or intended to give legal advice.