A lawsuit challenging Utah's anti-polygamy law, premised on Lawrence v. Texas.

To be filed by Kody Brown, the husband of 4 wives (who starred in the reality show "Sister Wives"):

The lawsuit is not demanding that states recognize polygamous marriage. Instead, the lawsuit builds on a 2003 United States Supreme Court decision, Lawrence v. Texas, which struck down state sodomy laws as unconstitutional intrusions on the “intimate conduct” of consenting adults. It will ask the federal courts to tell states that they cannot punish polygamists for their own “intimate conduct” so long as they are not breaking other laws, like those regarding child abuse, incest or seeking multiple marriage licenses.

Mr. Brown has a civil marriage with only one of his wives; the rest are “sister wives,” not formally wedded. The Browns are members of the Apostolic United Brethren Church, a fundamentalist offshoot of the Mormon Church, which gave up polygamy around 1890 as Utah was seeking statehood.

Making polygamous unions illegal, they argue, violates the due process and equal protection clauses of the 14th Amendment, as well as the free exercise, establishment, free speech and freedom of association clauses of the First Amendment.

“We only wish to live our private lives according to our beliefs,” Mr. Brown said in a statement provided by his lead attorney, Jonathan Turley, who is a law professor at George Washington University.

The connection with Lawrence v. Texas, a case that broadened legal rights for gay people, is sensitive for those who have sought the right of same-sex marriage. Opponents of such unions often refer to polygamy as one of the all-but-inevitable outcomes of allowing same-sex marriage. In his dissenting opinion in the Lawrence case, Justice Antonin Scalia cited a threat to state laws “based on moral choices” against “bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality and obscenity.”

I think the Lawrence-based argument for decriminalizing polygamy is much stronger than the Lawrence-based argument for requiring the government to give legal recognition to same-sex marriage. One is an argument demanding only that the government leave them alone as they pursue their "own concept of existence, of meaning, of the universe, and of the mystery of human life." The other is a demand that the government alter its treatment of its citizens, giving them access to to the benefits of having the official status as a married couple.

Requiring same-sex couples to marry if they want to keep health insurance benefits they've previously enjoyed with domestic partnerships.

This issue arises in the 6 states (plus D.C.) that allow same-sex marriage.

On the surface, this appears to put the couples on an even footing with heterosexual married couples. After all, this is precisely what they have been fighting for: being treated as a spouse. But some gay and lesbian advocates are arguing that the change may have come too soon: some couples may face complications, since their unions are not recognized by the federal government.

So, when opposite-sex couples decide whether to marry, to the extent that it's an economic calculation, they are weighing a much different set of pros and cons. For example, joint federal income tax returns can save a huge (or cost) amount of money. And under federal tax law, the spouse/"spouse" who receives his/her partner's health benefits has treat the benefit as income and pay tax on it.

If one of the spouses is not a U.S. citizen and is in the country on a temporary visa, the state-level-only marriage "could flag your renewal application and reflect your more permanent decision to stay." Marriage, instead of helping you get to citizenship, would send you in the direction of losing your visa.

What if one spouse is in the military? Getting married violates Don't Ask, Don't Tell, which isn't completely gone yet.

In addition, a state-level-only marriage causes problems if the couple moves to a state that doesn't recognize that marriage (and is entitled, under the Defense of Marriage Act, to decline to recognize the marriage):

Getting a divorce can be complicated, since one member of a couple may have to return to the gay marriage state and live there before their split can be completed.

The employers making the changes [to require marriage to retain benefits] said they spoke regularly with their gay and lesbian employee groups and planned to phase in the requirement. Corning, based in Corning, N.Y., said it would offer a reasonable grace period, though it had not completed the details.

“After waiting so much time for that right, we want them to have the opportunity to enjoy that,” said Christy Pambianchi, a senior vice president for human resources at Corning, which put the policy into effect in New Hampshire and Massachusetts when gay marriage became legal there. She said employees did not raise concerns about the requirement. “They are delighted,” she said.

So the New Hampshire and Massachusetts same-sex couples didn't notice the problem? It took New York. Why was that? Are New Yorkers more legalistic and inclined toward economic analysis? Are they more likely to speak up in their own self-interest even when they are getting something they'd been asking for that's supposed to be good?

Obviously, some same-sex couples are happy to be allowed to get married, but under the law, marriage is a complicated matter. It's not just about pledging your love and devotion. In fact, you can do that without a legal marriage. As Joni Mitchell sang a long time ago: "We don't need no piece of paper. From the city hall. Keeping us tied and true."

Legal marriage is about a whole lot of other things, and the set of things is not the same for opposite sex and same-sex marriage. The decision to get married is a different decision for same-sex couples, and it's not real equality to have to decide between losing your health insurance benefits and entering into the kind of marriage that is works only in at the state level and only in some of the states.

“The mistake that straight people made was imposing the monogamous expectation on men."

Says Dan Savage (in a big NYT Magazine story about him):

“Men were never expected to be monogamous. Men had concubines, mistresses and access to prostitutes, until everybody decided marriage had to be egalitar­ian and fairsey.”

Fairsey? I suppose that's fairs-y — signifying a childish approach to fairness. Am I right? Just trying to understand. Appeals to fairness may sometimes be oversimplified and not really — at some deeper level — fair. He seems to be saying that the female-driven concept of fairness in marriage is a caricature of fairness that favors women, because man's needs are different/greater — as the history of marriage shows. (And yes, I know there are heterosexual couples where the woman has the greater demand for frequency and variety and that Dan Savage is well aware of that.)

In the feminist revolution, rather than extending to women “the same latitude and license and pressure-release valve that men had always enjoyed,” we extended to men the confines women had always endured. “And it’s been a disaster for marriage.”

In their own marriage, Savage and [his husband Terry] Miller practice being what he calls “monogamish,” allowing occasional infidelities, which they are honest about. Miller was initially opposed to the idea. “You assume as a younger person that all relationships are monogamous and between two people, that love means nothing can come between you,” said Miller, who met Savage at a club in 1995, when he was 23 and Savage was 30. “Dan has taught me to be more realistic about that kind of stuff.

“It was four or five years before it came up,” Miller said. “It’s not about having three-ways with somebody or having an open relationship. It is just sort of like, Dan has always said if you have different tastes, you have to be good, giving and game, and if you are not G.G.G. for those tastes, then you have to give your partner the out. It took me a while to get down with that.”

Interesting for the NYT to publish this the week that New York legalized same-sex marriage.

President Obama evolves beyond "evolving."

The NYT reports:

After months of saying his position on same-sex marriage is “evolving,” President Obama on Wednesday traded that language for comments that stopped just short of endorsing the notion that gay people have the right to marry....

“I think what you’re seeing is a profound recognition on the part of the American people that gays and lesbians and transgender persons are our brothers, our sisters, our children, our cousins, our friends, our co-workers, and that they’ve got to be treated like every other American,” Mr. Obama said at a news conference. “And I think that principle will win out.”

The president went on: “I think we’re moving in a direction of greater equality and – and I think that’s a good thing.”

Mr. Obama used those same words – “a good thing” – to describe the debate in New York that led to last week’s passage of a law making same-sex marriage legal.

A good thing... Apparently he's evolved into Martha Stewart:

Gay marriage in New York State is "a BFD because a Republican-led State Senate passed this law."

Writes Andrew Sullivan:

Going outside traditional Democratic party lobbies to appeal to those on the other side who are open to our arguments was essential.... Governor Cuomo, by all accounts was magnificent at the politics and Mayor Bloomberg and critical Republicans and Democrats and all factions and groups in the gay movement - even HRC! - pulled together. That the most passionate opponent was a Democrat and the most powerful were Republicans helps scramble the attempt by the Christianist right to coopt conservatism for their reactionary theology.

It's a BFD because it also insists on maximal religious liberty for those who conscientiously oppose marriage equality. A gay rights movement that seeks to restrict any religious freedom is not worthy of the name. And it makes me glad that we largely avoided anything that looks like that strategy, and that last-minute negotiations were flexible enough to strengthen the protections for religious groups, churches, mosques, synagogues and the like. The gay rights movement is about expanding the boundaries of human freedom - and that must include religious freedom if it is to mean anything....

I don't know the details about the religious freedom protection in the bill, but I agree with Sullivan that's extremely important. I put up a quick post last night when the NY vote came in, and I read the comments this morning and saw a lot of fretting about government interference with religion. (For example, what happened to Catholic Charities in Massachusetts.)

NY passes same-sex marriage law.

The vote was 33-to-29, with 4 Republican state senators joining the 29 Democrats.

Good.

"Winning the right to marry is one thing; being forced to marry is quite another."

Lawprof Katherine M. Franke explains:

If the rollout of marriage equality in other states, like Massachusetts, is any guide, lesbian and gay people who have obtained health and other benefits for their domestic partners will be required by both public and private employers to marry their partners in order to keep those rights. In other words, “winning” the right to marry may mean “losing” the rights we have now as domestic partners, as we’ll be folded into the all-or-nothing world of marriage....

As strangers to marriage for so long, we’ve created loving and committed forms of family, care and attachment that far exceed, and often improve on, the narrow legal definition of marriage. Many of us are not ready to abandon those nonmarital ways of loving once we can legally marry....

But we shouldn’t be forced to marry to keep the benefits we now have...

I was going to say that if heterosexual couples have been excluded from domestic partnerships — as they are here in Wisconsin — then you'd have to open up domestic partnerships to them too. But I think it would be acceptable to have a 2-tier approach to state-sanctioned relationships just for same-sex couples who are already in domestic partnerships. No new domestic partnerships would be accepted. Now, perhaps Franke thinks domestic partnerships are a great innovation that should be open to same- and opposite-sex couples. I don't see a good reason for the state to maintain 2 different types of marriage-like relationships. I didn't like the "covenant marriage" approach either.

"The state does not recognize domestic partnership in a way that even remotely resembles how the state recognizes marriage"

Writes Dane County Circuit Judge Daniel R. Moeser, reported in the Journal Sentinel:

"Ultimately, it is clear that (the law) does not violate the marriage amendment because it does not create a legal status for domestic partners that is identical or substantially similar to that of marriage. ," Moeser wrote.

In 2006, Wisconsin voters approved with 60% of the vote a constitutional ban on both marriage and a "legal status identical or substantially similar to marriage" for same-sex couples. Wisconsin Family Action, a group that supports marriage as being between a man and a woman, filed suit against the law in September.

It argued that the state-recognized partnerships for gay and lesbian couples are "substantially similar" to marriage and therefore banned by the state constitution.... In May, Republican Gov. Scott Walker asked Moeser to allow the state to stop defending the law against the suit because he believed it violated the state constitution.

There will be an appeal, of course. Instead of commenting, I'm giving you a poll:

Assess Moeser's decision:
	It's a sincere but not very good attempt at legal analysis.
	It's a sincere and fine example of legal analysis.
	It's pure politics, and it's bad politics.
	It's pure politics, and it's good politics.
	It's a mediocre mix of law and politics.
	It's an excellent interweaving of law and politics.
pollcode.com free polls

"We hear you, Jay, we hear you: the president's position on marriage equality is evolving."

"That's your buzzword and you're sticking to it. But it's rare to see a politician evolve both ways on an issue like marriage equality. The president was for it, then he was against it, and now the president is presumably evolving back towards his previous position on marriage equality."

Dan Savage is skeptical about evolution.

Gallup finds — for the first time — that a majority of Americans favor gay marriage.

But the shift was entirely a shift — and it was a big shift — in the views of Democrats and independents. Republicans stayed put.

Conservatives are conservative. You can be smug about that. But independents moved 10 percentage points in one year. Think about it.

How Scott Walker is like Barack Obama on the same-sex marriage issue.

The Obama administration has stopped defending the constitutionality of the federal Defense of Marriage Act because it has determined that the Act violates the federal Constitution.

Wisconsin Governor Scott Walker now seeks to stop defending the Wisconsin domestic partnership law because he has determined that it violates the Wisconsin Constitution.

Obviously, there's a big difference. The Obama adminstration's decision supports marriage rights for gay people, and the Walker decision opposes marriage-like rights for gay people.

"An immigration judge in Newark on Friday suspended the deportation of a Venezuelan man who is married to an American man..."

"... responding to an unusual signal this week from the Obama administration that it is exploring legal avenues for recognizing same-sex marriages in immigration cases."

Trump on same-sex marriage: "It's like in golf... people are switching to these really long putters, very unattractive."

Okay, it's an analogy, you know!

At one point, he compared his opposition to the legalization of same-sex marriage to his reluctance to use a new kind of putter.

“It’s like in golf,” he said. “A lot of people — I don’t want this to sound trivial — but a lot of people are switching to these really long putters, very unattractive,” said Mr. Trump, a Republican. “It’s weird. You see these great players with these really long putters, because they can’t sink three-footers anymore. And, I hate it. I am a traditionalist. I have so many fabulous friends who happen to be gay, but I am a traditionalist.”

He said that, should he run, he would offer himself as a “conservative with a big heart.”

Now, do you understand the analogy, wise guy? Before you get your panties in a twist? Think about it!

What's his main point? He's saying it just looks weird to him — the long putter and the same-sex marriage. It bugs him. He's not saying he hates gay people. It's the casual "I hate it" that means "It drives me nuts." Now, it's not all about him and how things make him feel — not if he means to acquire political power. (Which I'm sure he doesn't, even though he's saying he's decided "in my mind" to run for President. Or is it that he's decided to run for President in his mind?)

Anyway, I think that putter thing is rather self-deprecating. He's confessing that his mind has limits, but he sees and talks openly about the limits of his mind. That's actually refreshing!

Obama orders Justice Department to drop its defense of the Defense of Marriage Act.

Politico reports:

“After careful consideration, including a review of my recommendation, the president has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a more heightened standard of scrutiny,” [Attorney General Eric] Holder said in a statement.

“The president has also concluded that Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional. Given that conclusion, the president has instructed the department not to defend the statute in such cases. I fully concur with the president’s determination.”

(Last fall, I was very critical of Obama's willingness to defend DOMA in the courts.)

ADDED: Watch me — last October — criticize Obama for fighting against gay rights in the courts:



Hmmm. October... Had to win some votes back then.

"If you’re eating Chick-fil-A, you’re eating anti-gay."

Mmm. Well. At least I'm now able to confirm by inference that my pronunciation of Chick-fil-A is correct.

ADDED: To respond to some questions in the comments, I assumed, reading the sign, noting the capital A, and using common sense, that the name was pronounced "chick fill AY," that is,"chick fillet." But recently somebody laughed at me for saying it like that and insisted it was pronounced "chick FILL uh." I was embarrassed. When I came across the slogan that I've put in the post title, I thought it was a funny way to say I was right. Why does that slogan show I was right? Because it has meter and rhyme only if it's pronounced my way. As for the folks in the comments who thought it had something to do with fellatio — "fill-A-tio"....

"Is marriage responsible for turning the beastly male into a well-behaved husband?"

"Or are the upstanding men the ones who marry in the first place?"

An old mystery. The linked article is about a study that shows there's combined causality: Marriage tends to make men more upstanding citizens and more upstanding male citizens are more likely to find and commit to a mate.

Related mysteries: Should we incentivize marriage and pressure men into marriage in order to make society better for all of us? Must men marry women to get this social improvement or will gay marriage work too? Should women be enthusiastic about performing the function of improving men? Is the restriction of marriage to opposite-sex couples a way to enlist unwilling women in the social enterprise of improving men?

CORRECTION: I'd originally written "same-sex" in that last question.

In the Prop 8 case, the 9th Circuit panel has decided to ask the California Supreme Court to answer a key question of state law.

The state law question is whether the official proponents Prop 8 have "authority to assert the State’s interest in the initiative’s validity... when the public officials charged with that duty refuse to do so."

This is the threshold standing question. Standing is a matter of federal constitutional law, but the 9th Circuit has apparently perceive an element of the issue to depend on state law, and it is seeking an authoritative interpretation of state law from the state's highest court.

With its new GOP legislature and governor, will Wisconsin repeal its domestic partnership registry?

Gay rights advocates are worrying about this. It doesn't seem to be on the agenda, but it should not go unnoticed that the Lieutenant Governor-elect Rebecca Kleefisch made one of the stupidest ever statements about same-sex marriage: "At what point are we going to OK marrying inanimate objects? Can I marry this table, or this, you know, clock?"

What kind of person, looking for a vivid image, would come up with the idea of marrying a clock?

A liberal blogger confronts Barack Obama about gay rights... with tediously grim results.

I'm going to pick apart the transcript from Obama's big meetup with the liberal bloggers. The "Q" is Joe Sudbay of Americablog.

Q ... do you think that “don’t ask, don’t tell” is unconstitutional?

That's exactly what I would ask him. You may remember my dissecting his MTV townhall last week and showing you how evasive he was about that.

THE PRESIDENT: It’s not a simple yes or no question, because I’m not sitting on the Supreme Court. And I’ve got to be careful, as President of the United States, to make sure that when I’m making pronouncements about laws that Congress passed I don’t do so just off the top of my head.

See? Infuriating. He's the President. He took an oath to "preserve, protect and defend the Constitution of the United States" — "to the best of [his] ability." He won the Presidency in part because of his high achievement at Harvard Law School. He accepted responsibility for the U.S. military. His administration is fighting to defend DADT in courts. This issue didn't pop up yesterday, so his answer couldn't possibly be "just off the top of [his] head. He sure as hell better have an answer to the question. This preamble to his answer is therefore either a lie or an outrage.

I think that -- but here’s what I can say. 

Thanks for revealing that you know you are withholding what you really think.

I think “don’t ask, don’t tell” is wrong. I think it doesn’t serve our national security, which is why I want it overturned. I think that the best way to overturn it is for Congress to act. In theory, we should be able to get 60 votes out of the Senate. The House has already passed it. And I’ve gotten the Secretary of Defense and the Chairman of the Joint Chiefs of Staff to say that they think this policy needs to be overturned -- something that’s unprecedented.

That's his canned answer, which was also served up at the MTV townhall. It's completely nonresponsive to the question. 

And so my hope and expectation is, is that we get this law passed. It is not just harmful to the brave men and women who are serving, and in some cases have been discharged unjustly, but it doesn’t serve our interests -- and I speak as Commander-in-Chief on that issue.

If you really believe it is that harmful and unjust, then how do you resist the conclusion, under the case law, that it is unconstitutional? Even at the level of minimal scrutiny, what is the rational basis for this law? You are saying — in so many words — that there is no rational basis, so why do you not conclude that it is unconstitutional? Are you lying when you intone your criticism of DADT, or are you lying when you purport to adhere to the sort of constitutional analysis that is done by the kind of people you nominate to be on the Supreme Court?

Are you trying to say you'd have joined Justice Scalia's dissent in Lawrence v. Texas? Here's Scalia: "What Texas has chosen to do is well within the range of traditional democratic action, and its hand should not be stayed through the invention of a brand-new 'constitutional right' by a Court that is impatient of democratic change. It is indeed true that 'later generations can see that laws once thought necessary and proper in fact serve only to oppress,'; and when that happens, later generations can repeal those laws. But it is the premise of our system that those judgments are to be made by the people, and not imposed by a governing caste that knows best." Hello? That's what Obama is saying about Don't Ask, Don't Tell.

Back to the transcript:

Let me go to the larger issue, though, Joe, about disillusionment and disappointment.

Oh, yes! The larger issue is how people feel about Barack Obama. Constitutional rights just aren't that large compared to the grand question of Me. And apparently Joe doesn't have the nerve to stop the President and point out that there has been no answer to the question. The President has called him by name and wants to talk about his feelings.

I guess my attitude is that we have been as vocal, as supportive of the LGBT community as any President in history....

But no other President directly inspired the hopes of gay people and won big support with promises like you did. You're not even saying that you're better than all those other Presidents, only that none of them were any better. Your support for "the LGBT community" is as good as George Washington's. Thanks a lot.

On “don’t ask, don’t tell,” I have been as systematic and methodical in trying to move that agenda forward as I could be given my legal constraints, given that Congress had explicitly passed a law designed to tie my hands on the issue.

Admit it: You love having your hands tied like that. Because you're fighting against a legal decision that deemed DADT unconstitutional! The rope of legislation was untied, and here you are begging for other judges to tie you back up again. Don't ask me to believe you don't love the bondage.

And so, I’ll be honest with you, I don’t think that the disillusionment is justified.

I'll be honest with you... Speaking of Don't Ask, Don't Tell. That's a "tell." He's lying. "I’ll be honest with you" means I'm about to lie to you.

Now, I say that as somebody who appreciates that the LGBT community very legitimately feels these issues in very personal terms. So it’s not my place to counsel patience. One of my favorite pieces of literature is “Letter from Birmingham Jail,” and Dr. King had to battle people counseling patience and time. And he rightly said that time is neutral. And things don’t automatically get better unless people push to try to get things better.

Speaking of time, he's really trying to run the clock out on this interview. He's also, I imagine, ashamed of what he finds himself needing to say. He wants to identify with King, but he knows he's on the wrong side of King when he asks gay people to wait longer. Obama sounds like an old man rifling through his memories for something relevant to say. He calls “Letter from Birmingham Jail" "[o]ne of my favorite pieces of literature" — as if it's all about him and people who are waiting for their rights to be recognized are fascinated by what pleasure reading he enjoys. Under the circumstances of this conversation, “Letter from Birmingham Jail” is or should be nagging at his conscience. ("Now is the time to lift our national policy from the quicksand of ... injustice to the solid rock of human dignity.")

So I don’t begrudge the LGBT community pushing...

Begrudge! That he would even think of that word suggests these people are annoying him!

... but the flip side of it is that this notion somehow that this administration has been a source of disappointment to the LGBT community, as opposed to a stalwart ally of the LGBT community, I think is wrong.

The short answer to Sudbay's original answer was: Don't Ask.

Q So I have another gay question. (Laughter.)

THE PRESIDENT: It’s okay, man. (Laughter.)

I am resisting typing curse words here. Look at Sudbay abasing himself. Now these rights he must care about are reduced to jocose "gay questions." Something to laugh at. There indeed was a time, and it was not too long ago, that the idea of gay rights itself seemed funny to people. And Sudbay allows himself to get pushed back toward that place. The President treats the remark as if it were an apology. He says "It's okay, man." Man. See? He's a cool guy. He's taming Sudbay.

Q And this one is on the issue of marriage. Since you’ve become President, a lot has changed. More states have passed marriage equality laws. This summer a federal judge declared DOMA unconstitutional in two different cases. A judge in San Francisco declared Prop 8 was unconstitutional. And I know during the campaign you often said you thought marriage was the union between a man and a woman, and there -- like I said, when you look at public opinion polling, it’s heading in the right direction. We’ve actually got Republicans like Ted Olson and even Ken Mehlman on our side now. So I just really want to know what is your position on same-sex marriage?

Another good question. Sudbay came prepared. Let's see if he lets Obama push him back again.

THE PRESIDENT: Joe, I do not intend to make big news sitting here with the five of you, as wonderful as you guys are. (Laughter.) But I’ll say this --

Q I just want to say, I would be remiss if I didn’t ask you this question.

THE PRESIDENT: Of course.

Q People in our community are really desperate to know.

Oh, don't beg, Joe. Don't apologize.

THE PRESIDENT: I think it’s a fair question to ask. 

That's big of him.

I think that -- I am a strong supporter of civil unions. As you say, I have been to this point unwilling to sign on to same-sex marriage primarily because of my understandings of the traditional definitions of marriage.

Check out those weird plurals: understandings of the traditional definitions. That's another tell. He is lying, I presume. His opposition to same-sex marriage is, quite simply and obviously, politically expedient. It is impossible for me to believe that Obama, coming from his academic background, is hung-up on the traditional definition — or "definitions" — of marriage. He's posing as a seeker of truth, slowly coming round.

But I also think you’re right that attitudes evolve, including mine. 

Attitudes? I thought he was into traditional definitions.

And I think that it is an issue that I wrestle with and think about because I have a whole host of friends who are in gay partnerships. I have staff members who are in committed, monogamous relationships, who are raising children, who are wonderful parents.

So is he saying that previously he had an attitude that was antagonistic to gay people and by extensive social contact with gay people, he came around to perceiving them as fully human? I just don't believe that. And if I did, I would think less of him.

And I care about them deeply. 

You know, your position on the rights of others should not depend on whether they are your friends. That's not the way law works. People have rights whether you care about them or not. And rights don't spring into existence because you care about the people who want them.

And so while I’m not prepared to reverse myself here, sitting in the Roosevelt Room at 3:30 in the afternoon, I think it’s fair to say that it’s something that I think a lot about. That’s probably the best you’ll do out of me today. (Laughter.)

Laughter. Oh, it's so lovely sitting with the President in the Roosevelt Room. Something that I think a lot about. Men have thought more clearly in jail.

Later, the conversation comes back to DADT, and the President intimates that he will try to push its repeal during the lame duck session of Congress. He makes an effort to shift the blame to the Republicans, especially John McCain, and he indicates that it will be a problem getting the votes for cloture. (He loves that problem, I'll bet. It's so helpful to appear to want to act and have your hands tied.)

He wonders why the Log Cabin Republican are pursuing their court case, when they could instead try to get a few Republican Senators to vote for repeal. He says he doesn't "understand the logic of" using the courts when you could go to Congress, but of course he does. People conceive of their equality in terms of their individual rights — which don't depend on the support of political majorities and supermajorities. As a Harvard-trained lawyer and sometime law professor, he knows that. He knows why people go to courts. I don't buy his understanding of the logic. Or should I say his understandings of the logics?

Ted Olson says: "It would be appropriate for them to say 'the law has been deemed unconstitutional, we are not going to seek further review of that.'"

I agree.

"It happens every once in awhile at the federal level when the solicitor general, on behalf of the U.S., will confess error or decline to defend a law," said former George W. Bush administration solicitor general Ted Olson, who is leading the legal challenge of California's ban on same-sex marriage. Gov. Arnold Schwarzenegger and the state attorney general have both declined to defend the law in court.

"I don't know what is going through the [Obama] administration's thought process on 'don't ask, don't tell'...."

He doesn't know, but I bet he has some ideas. He's too dignified to tell. But I think we know.