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“American Taliban” Lawyer Authors Obama DOMA Defense

In their brief the Obama Administration argued that the courts shouldn’t consider Loving v. Virginia, the miscegenation case in which the Supreme Court ruled that it is unconstitutional to ban interracial marriages, when looking at gay civil rights cases, that the Supreme Court decisions of Roemer and Lawrence shouldn’t be interpreted to give us rights in any other area, that DOMA doesn’t discriminate against Lesbian and Gay couples because it also discriminates about straight unmarried couples, and invoked incest and people marrying children…

The courts have followed this principle, moreover, in relation to the validity of marriages performed in other States. Both the First and Second Restatements of Conflict of Laws recognize that State courts may refuse to give effect to a marriage, or to certain incidents of a marriage, that contravene the forum State’s policy. See Restatement (First) of Conflict of Laws § 134; Restatement (Second) of Conflict of Laws § 284.5 And the courts have widely held that certain marriages performed elsewhere need not be given effect, because they conflicted with the public policy of the forum. See, e.g., Catalano v. Catalano, 170 A.2d 726, 728-29 (Conn. 1961) (marriage of uncle to niece, “though valid in Italy under its laws, was not valid in Connecticut because it contravened the public policy of th[at] state”); Wilkins v. Zelichowski, 140 A.2d 65, 67-68 (N.J. 1958) (marriage of 16-year-old female held invalid in New Jersey, regardless of validity in Indiana where performed, in light of N.J. policy reflected in statute permitting adult female to secure annulment of her underage marriage); In re Mortenson’s Estate, 316 P.2d 1106 (Ariz. 1957) (marriage of first cousins held invalid in Arizona, though lawfully performed in New Mexico, given Arizona policy reflected in statute declaring such marriages “prohibited and void”).

The fact that States have long had the authority to decline to give effect to marriages performed in other States based on the forum State’s public policy strongly supports the constitutionality of Congress’s exercise of its authority in DOMA.

The Man responsible for those words… Is also the man who created the defense for the Amercian Talibani John Walker Lindh.

Tony West is currently the assistant attorney general for the Civil Division in the Department of Justice under Eric Holder. When Mr West took the job defending John Walker Lindh, he stated that his reasoning for taking on that case involved a concern about human rights and a principle of due process and fairness that separates the United States from other nations.

Of course, it would have been nice if Mr. West would have extended the same courtesy to the LGBTI community when he crafted the Administration’s response to the case Smelt v. United States of America. Apparently gays, lesbians and transpeople do not require the same sense of fairness and due process when it comes to our rights that Mr. West felt extended to John Walker Lindh. After all, Lindh was only captured on a battlefield with weapons and siding with a group who were actively at war with the United States.

Mr. West, acting on behalf of the Justice Department, crafted the Administration’s request to dismiss Smelt v. U.S., a suit dealing with same-sex marriage, by inserting several cases which amounted to statutory rape in the state where the person sought to have their marriage made void. The cases that Mr. West cited in his motion to dismiss included several where the woman in the marriage was well under age and her husband was much older. Often those cases involved parental consent for the marriage to take place, and some involved fraud. Marriage between an older man and an underage girl is tantamount to child abuse. It is not only emotionally damaging to the child, as multiple cases have proven, but can be physically damaging as well. One has to wonder why cases that are, in essence, a way around laws regarding child sexual abuse are being brought into a case about two adults who want to get married. Vermont had a law on the books that would have allowed for such marriage, though it had not been used in decades, but that law was made invalid with the passage of Vermont’s marriage equality law.

‘A sense of fairness and due process,’ is, in essence, what Mr. West stated when he took on the defense of John Walker Lindh, yet it seems quite unfair of him to make the same kind of equation that many on the Right are saying about gays and lesbians by inserting into this case several cases which involve what amounts to child sexual abuse. Mr. West certainly does not seem to care too much about the emotional, financial, and social problems that a lack of marriage rights means to gays, lesbians and transpeople, especially when many of those are defined as being essential for human rights and dignity.

Mr. West was a member of Obama’s team early on and raised an estimated sixty-five million dollars for Obama’s campaign in California. He has worked in the Attorney General’s office of both the United Stated (as an aid to AG Janet Reno) and California, and as a former federal prosecutor. Mr. West is considered a rising star in the Democratic Party.

Some would like to be able to call him Mayor West, and see him run for the mayor in Oakland, California.

When he defended John Walker Lindh, Mr. West stated that he had been assured that the man dubbed the “American Taliban” had not been involved in the 9/11 attacks, nor had he taken up arms against the United States.

The team that Mr. West put together to defend Lindh did not seem willing to take the issues raised by Lindh’s case to trial, and even to the Supreme Court as well. After pictures of naked, blindfolded and bound Lindh surfaced, his defense team was offered a plea deal. Despite the fact that Lindh was unlikely to have his confession upheld by a court on grounds that it was obtained under duress, and that much of the evidence against him was flimsy enough to make even the most seasoned prosecutor or television equivalent there in blanch in terror and admit defeat, his defense team took the plea bargain. Lindh will finish serving his time in jail by around 2022 despite the fact that his confession was obtained under possible torture and may not be real. While there are some who would like to splatter mud on Mr. West for his defense of Lindh, the reality is that even men like Lindh, James von Brunn, and Scott Roeder do deserve representation under the law. However, his statements about fairness and due process should extend to all and not just a select few individuals irregardless of their minority status.

Tony West is married to Maya Harris West, a lawyer from the ACLU. She was part of a lawsuit on behalf of the Sacramento “Broderick Boys” gang. The city of Sacramento issued an injunction against members of the gang that prevented them from being outside after 10 pm, and prevented large groups of them from meeting in public. The center of the complaint that the police were unable to find the members to deliver the injuctions against them. This would be easy to understand given that most gang members tend to be scarce when it comes to the police. The ACLU in California, of which Ms West is a member, recently asked that the lawsuit brought by Ted Olson and David Boies not move forward.

Tony West, of course, received his current position as a reward for all of the hard work he put into helping President Obama win one of the bluest states in the union. Mr. West raised some sixty-five million dollars, mostly from churches around the state. Many of the California churches, of course, are against rights for gays, lesbians and transsexuals, and are adamantly against same-sex marriage or marriage equality of any sort. Certainly Saddleback Church’s Rick Warren was adamant about the issue and compared homosexuality to pedophilia, even though he later stated that he never supported Proposition 8. Indeed, many of the churches which Mr. West likely received money from supported Prop 8′s ban on same-sex marriage rights.

Given the position of many of these churches on issues like marriage equality, Don’t Ask, Don’t Tell, and other rights for gays, lesbians and transpeople, it is unlikely that they would be enthusiastic in their support of President Barack Obama if he actually moved on those issues. Certainly they would be appalled if the President Obama pushed for a repeal of the Defense of Marriage Act, or allowed it to be torn down via the courts without a fight. After all, it would be unlikely that he would receive any money from them for his reelection if he did so.

Of course, Obama could have made it clear to our community that he would be putting politics ahead of civil rights during the campaign and not strung along every gay, lesbian and transperson that believed him.

But, had he done that however, this article would in all likelihood, have been about President Hilary Clinton and her actions taking on DOMA.