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Congratulations to Stuart Delery
Posted by: Claude J. Summers on 02/28/12
Last updated on: 03/01/12
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On February 27, 2012, the Department of Justice announced that openly gay attorney Stuart Delery will succeed Assistant Attorney General Tony West as head of the DOJ's Civil Division. West has been named to the no. 3 spot at Justice with the title Acting Associate Attorney General.

In a press release, Attorney General Eric Holder said that "Tony and Stuart have served the department with professionalism, integrity and dedication, and both bring a wealth of experience to their new positions. I'm confident they will provide invaluable leadership and will play a critical role in furthering the department's key priorities and fulfilling its traditional missions."

As head of the Civil Division, Delery will oversee the unit that represents the United States, its departments and agencies, members of Congress, Cabinet officers, and other federal employees in any civil or criminal matter within its control. These include cases involving national policies and significant litigation that is "so massive and span[s] so many years that [it] would overwhelm the resources and infrastructure of any individual field office."

Delery joined the Department of Justice in January 2009. His first assignment was as chief of staff and counselor to the Deputy Attorney General. Later, he served as Associate Deputy Attorney General, where he coordinated DOJ's preparation of the federal lawsuit against Arizona's immigration law.

Since August 2010, Delery has served as senior counselor to Attorney General Holder, including serving as a member of the DOJ's Affordable Care Act litigation team.

As Chris Geidner notes at MetroWeekly, Delery and his partner, Richard Gervase, are fathers of two sons, and are active in Rainbow Families DC, an organization that supports and connects glbtq parents and prospective parents in the D.C. metropolitan area.

Prior to joining the Justice Department in January 2009, Delery was a partner at a prestigious Washington, D. C. law firm, Wilmer Hale. At Wilmer Hale, he provided pro bono counsel to Servicemembers Legal Defense Network, including in a case challenging the constitutionality of "Don't Ask, Don't Tell."

As Geidner reports, in the appeal of that case in 2006, Delery, in arguing why DADT should be found unconstitutional, wrote that the legal landscape changed after the U.S. Supreme Court overturned all sodomy laws in Lawrence v. Texas in 2003.

"[T]he Court made clear that all adults, regardless of their sexual orientation, possess a constitutionally protected liberty interest in determining how to conduct their private lives in matters pertaining to sex," Delery wrote, and continued: "Lawrence, moreover, was about more than sex. The decision's language and holding evince a clear concern not only with the privacy of the bedroom, but also more broadly with the equal legal dignity to which gay persons are constitutionally entitled. Taken together with Romer v. Evans, Lawrence means that the government may not demean the lives of gay persons by enacting laws that infringe their fundamental liberties or treat them as a separate, secondary class."

As Geidner observes, Delery's position "is now the position of the U.S. government, as enunciated by DOJ in several ongoing challenges to the constitutionality of the Defense of Marriage Act's federal definition of marriage. Those include a case brought by SLDN in which DOJ recently announced it would not be disputing the DOMA claims and West's argument in December 2011 to a federal trial court that decided this past week that Section 3 of DOMA is unconstitutional."

An account of West's intervention in the Golinski case may be found here.

The Justice Department's new position in regard to gay legal issues is part of the Obama Administration's turnaround after the "shellacking" it took in the Congressional elections of November 2010, the development that we described as the biggest news story of 2011 here. In response to the electoral loss and to the disillusionment of his base, the President seems to have reconsidered his method of governing. Consequently, in 2011 he finally became the fierce advocate for glbtq rights that he promised to be during his 2008 election campaign.

As a result of President Obama's turnaround, the Justice Department has become the friend of the struggle for equal rights instead of an obstacle to it. For example, the very lawyers who had been vigorously defending DOMA in 2009 and 2010 are now arguing that the blatantly discriminatory law is unconstitutional and should not be defended.

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