Tuesday, January 5, 2010

Beginning of the End for DOMA, Part III: Inside Baseball Edition

So, I earlier blogged about the orders by Judges Kozinski and Reinhardt ordering that same-sex spouses of employees of the Ninth Circuit be granted employment benefits hereand here. It turns out that the Obama Administration has refused to follow the order, stating that this was an administrative decision that is not binding on the Office of Personnel Management, and that until the courts issue a judicial ruling on the constitutionality of DOMA, the executive branch has an independent obligation to follow the law as interpreted by the justice department. The usual suspects are predictably outraged:

You can just smell that the administration did everything they could, twisted every word, to find an excuse for not providing the benefits. After all, if they give the partners of gay employees health benefits, then someone might accuse Barack Obama of being just a bit too friendly with the gays. And as we've learned over the last year, Obama doesn't do "controversial."1

The statement I just quoted is an excellent example of what happens when you're more interested in pushing a certain narrative rather than understanding what is really happening. The quote asks you to believe, despite the fact that the press release from the OPM calls for the legislative repeal of DOMA, that the administration really wants to keep DOMA around just so it can use gays as a punching bag. This conclusion does not fit the data and requires the use of conspiracy theories to be coherent. A much simpler explanation is that the administration does not want to set the precedent that an administrative tribunal from a different branch of government can give orders the executive branch. In short, this is a turf battle.2

Separation of powers is an incredibly technical and boring issue; it doesn't arouse passions the way that equal protection and civil rights issues do. It is a classic "inside baseball" topic that few care about and even fewer understand, including reporters and commentators. However, if you want to understand why the administration will fight a ruling that they agree with as a matter of policy, you have to get into the more arcane details.

This clip is another example of the inside baseball principle:

To look at it, it looks like Republicans are shouting down their Democratic colleagues. That is how it was reported in the media. The reality is more complex: the Democrats had lined up all the female members of their caucus to give what amounted to one-sentence speeches in the guise of unanimous consent requests. The GOP wanted to stop it, but wasn't quite sure how. While the actions of Rep. King et al. that you see here are not smart politics, they aren't malevolent and obstructionist like they appear to be if you don't know what's going on.

I am not taking a position on whether Kozinski or the OPM is in the right here--that's an obscure issue that I'm not incredibly interested in.3 I just wanted to point out what the real issue is here. Occam's razor posits that the simplest explanation tends to be the best one. In politics, the mundane explanation may not sell newspapers, but it tends to be correct.

  1. I struggled mightily on whether to include this link, as the idea of increasing John Aravosis's traffic even a little bit nauseates me. But for you, dear readers, I will swallow the bile and give you the full context.
  2. As further proof that this is a turf war, consider that Judge Reinhardt's order in In Re Levenson, decided at the same time as Judge Kozinski's case, did not direct the OPM to cover Mr. Levenson's spouse, but rather awarded him back pay to cover the denial of the benefit. The Obama administration did not challenge this, and Levenson is currently getting his benefits.
  3. If anyone wants to look up whether the hearing officers for the Congressional Accountability Office of Compliance have the authority to direct the OPM to take a certain action, do so and report back to me.

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