As everyone who follows this blog, AmericaBlog or most other blogs that have covered the Department of Justice’s filing in Smelt v. United States is aware, John Aravosis is of the view that Justice didn’t need to file any brief defending the law. My view was that Justice likely had an obligation to do so, but that it “did not have to go this far.”
Here is John’s statement from Friday afternoon:
Ben Smith at Politico just reported the following statement from the Department of Justice over their brief, filed last night, comparing gay marriage to incest:
As it generally does with existing statutes, the Justice Department is defending the law on the books in court. The president has said he wants to see a legislative repeal of the Defense of Marriage Act because it prevents LGBT couples from being granted equal rights and benefits. However, until Congress passes legislation repealing the law, the administration will continue to defend the statute when it is challenged in the justice system.
Yeah, you see, that’s an outright lie.
After I critiqued that viewpoint and John’s ongoing coverage did not back down from that statement, I asked John if similar statements from Harvard Law School Professor Laurence Tribe also constituted a lie. John considered this question to be quite offensive, and he proceeded to delete a post of his that referenced my blog and edit a reference to my blog out of another post of his.
Now, however, John has quietly turned around on this issue. Without admitting that he unfairly characterized DOJ’s position on Friday as a lie, John pulled back — and pretends that DOJ changed and not him. From today’s post at AmericaBlog:
Here is DOJ’s response to the WSJ reporter’s question about HRC’s brief:
“As it generally does with existing statutes, the Justice Department is defending the law on the books in court…,” said Tracy Schmaler. “Until Congress passes legislation repealing the law, the administration will continue to defend the statute when it is challenged in the justice system.” (emphasis added)
At least the DOJ spokesperson is no longer lying. Previously, the DOJ implied that the White House had no choice but to defend the law Obama once called “‘abhorrent.” In fact, that is not true, as proven this weekend in an essay by a former senior White House aide to President Clinton. Now the DOJ is simply saying that the White House “generally” defends the law in court cases.
Although John attempts to highlight the DOJ spokesman’s inclusion of the word “generally” in today’s WSJ statement, it is the same exact statement — “generally” and all — as the statement given by DOJ to Politico on Friday!
Why was it an “outright lie” on Friday, and no longer a lie today?
Far from admitting that he went too far by calling the DOJ spokesman a liar on Friday, John falsely claims that the statement from DOJ has changed and then states that the “new” statement is no longer a lie.
John also plays loose with the facts in his desire to push his “comparing gays to incest” meme, stating that The Wall Street Journal article “particularly highlighted HRC’s anger at the portion of the brief invoking incest.” Look at the article. Unless there was something different printed in the paper than was posted online, I can find no reference — let alone some “highlighted” reference — to the string cite in the brief that included cases regarding a marriage of an uncle to his niece in Italy and a marriage between first cousins in New Mexico. The one quote from the HRC letter came from the opening paragraph of the letter and was more generally referring to the entire brief.
Finally, John’s continued posts attempt to create a definitive answer where there is none. John’s statement that something was “proven this weekend” pretends that Richard Socarides’ statement, which runs counter to statements from former DOJ senior staffer Robert Raben and Tribe, can create a definitive answer about a complex decision that involves the Justice Department and the White House. By claiming that the debate has been “proven” somehow by Socarides’ general and vague statement that contains no specific references to actual circumstances, Aravosis is just dismissing the very real debate that has gone on regarding what the role of the Justice Department is when called to defend laws that a President might disagree with on a policy basis.
The bottom line here is that Aravosis continues to unfairly characterize the Justice Department’s statement on Friday in an attempt to villify the DOJ (and, in turn, Obama) regarding the filing of its Motion to Dismiss in Smelt v. United States and advance his interests in running a provocative Web site that is “calling out” the President. By oversimplifying the debate and statements of others (from DOJ to Socarides to me), it might be easier for Aravosis to bring readers along, but he should not pretend that he is advancing any good-faith debate. He is not.
[Thanks to @anamariecox for sharing my post. Also, thanks to Georgetown Law professor Nan Hunter for sharing with me this post about Marty Lederman's analysis of the situations in which DOJ has refused to defend the constitutionality of a statute. In addition to being a great factual piece, this is also important because Lederman is now back at Justice, after having served in the Clinton Administration's Justice Department.]
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Chris Geidner is the award-winning senior political writer at D.C.'s Metro Weekly and has written for The Atlantic Online, Advocate.com, Salon and other publications, as well as at his blog, Law Dork. In 2011, he received the Excellence in News Writing Award from the National Lesbian and Gay Journalists Association for his coverage of "Don't Ask, Don't Tell" repeal. Prior to moving to D.C. in 2009, he served as an attorney on the senior staff at the Ohio Attorney General's Office and had earlier worked for a leading Columbus law firm. An extended biography can be found
I think you both need to chill out and work towards something more helpful to the community. Whether or not the DOJ had to file the brief, which I’ll grant that it’s the usual practice, they didn’t have to file the brief they did. That is pretty much universally accepted and should be the main focus.
That’s my non-lawyer opinion, anyway.
I agree, and that’s precisely what I wrote yesterday: “Regardless of whether we believe that Justice was right to file any brief, we all agree that the brief that was filed went too far.”
I do think, however, that if John is going to continue to demonize the DOJ and Obama, he should at least be expected to be factually accurate in his attacks.
And, if you look at my posts from Monday, my focus this week has been the DOJ went too far.
Gard,
You might want to consider whether Aravois’s attacks not just on the brief itself but on anyone involved with it — especially with regard to his apparently wanting a religious test for DOJ attorneys so that Mormons can’t work on these issues — are what you want out there, uncritiqued, as representative of the community. I certainly consider policing my communities against excessive rhetoric that loses us allies to be helpful to those communities. If no one within the gay community responds to Aravois’s unfair attacks — indeed, if others link to the posts where he makes those attacks — it creates an appearance that he is voicing what others think.
Thank you for the well written article. I read the post on AmericaBlog and have continued to see other articles or even Rachel Maddow among others rail against and demonize DOJ as comparing gay marriage to incest.
The DOJ clearly lacks empathy, but their legal reasoning is simply cold logic in defending the law which allows states to not recoginize a marriage valid in another jurisdiction when it conflicts with state law.
The constant use of the words “rape” and “incest” detract from the point that if the age of consent for marriage is say 17 in Guam but 18 in New Hampshire, technically that would be “statutory rape”. Or if the Italian uncle and niece are both 24 years old, its “incest” to us.
Arbitrary cultural taboos are protected by the DOMA and the DOJ was simply pointing out the legal reasoning behind this.
Sadly many sides of this issue do not want to have reasoned discussion. Legally the law should not interfere if a brother and sister wish to marry. One side pretends that if gays can marry, all hell will break loose. And the other allows that centuries old taboo against brother/sister marriage is valid, yet a similar taboo against same sex marriage is invalid.
I certainly do not advocate such a thing, but the taboo is a cultural one and our laws are based on culture.It will take some time for this dance between culture and law, until such time that people become accustomed to the idea of same sex marriage.But that does not preclude the law advancing before culture does. Just don’t expect it to happen overnight.
I wasn’t attempting to state that inaccuracies shouldn’t be brought to light. Nor was I trying to state that what is, in my eye, just another form of bigotry should be considered permissible.
In the case of John Aravosis, I think that his perfectly justifiable anger led him down some poorly chosen paths and in some ways he’s become too blinded by the anger to see it.
Is that okay? When it involves falsehoods, of course it isn’t and I would hope that nobody else thinks it is.
I’m not behind the scenes, so I don’t know what, if any, dialogue has been attempted between the two of you. All that I can go on is what I read in this blog and his. What I’ve been seeing is a lot of anger on both parts where the tone has not been conducive to progress.
That said, I do commend you, Chris, in your attempt to bring focus back to the issue at hand. I think what caused me to write my first comment was the tone in the article this comment falls under. There was just something about it, no matter how deserved the critique of John’s posts, that bothered me. I’ve deleted several sentences trying to articulate what that “something” is, but I can’t seem to get it from my brain to my fingers.
I don’t know the true reason either you or John do your blogs, but I know why I started reading them. You are both apparently very smart people who can make things a bit more understandable to somebody like me who, while not stupid, does not have the background to figure all this out alone. I read both blogs because it’s helpful for me to see things from different points of view, see where those views coincide and see where they don’t. It’s how I learn things. Unfortunately it’s difficult for a person to learn when the material they are trying to learn is clouded with anger. Anger can be very good at the appropriate time but harmful in others. Aravosis getting stuck in his anger to the DOJ brief definitely falls under harmful, I just don’t want to see your anger at Aravosis do the same to you.
I think I wrote that entire book just to lead up to the last sentence…
thank you for standing up to aravosis. i feel he’s an extremist and does not represent the majority of gays and lesbians. obama is not against gay people. he’s a very pragmatic president and should be judged by his actions over time.
Thanks, PG.
Clarification, I meant I do not advocate relatives marrying each other. I can live with that arbitrary taboo and recognize it as such. I firmly believe that consenting adults should marry whoever they wish.
Fair point. I try. Thanks.