Chairman Frank, gay foe?
[Please read on and follow me on Twitter if you aren't already. Thanks, Glenn Reynolds, @anamariecox, John Cole, Steve Benen, Andy Towle & others, for the links & tweets.]
Rep. Barney Frank, who earlier today was with the President and Senator Chris Dodd to unveil the most significant financial regulatory reform since the Great Depression, issued a statement regarding the Obama DOJ’s filing in Smelt v. U.S.
Soon thereafter, John Aravosis published a piece that just went round the bound. I have tried to keep my blog as forward-looking as possible, but it’s clear that Aravosis’s heavy popularity at his blog and media contacts have allowed his false statements about what the filing means to push the debate into the twisted, contorted view he is giving it.
The two main problems that I have with Aravosis’s coverage are:
- His continued misstatements regarding whether Justice should have filed a brief in this case.
- His “comparing us to incest and pedophilia” claim is overstated and does not withstand any serious, legal scrutiny.
First of all, it’s clear that his poisoning of the well most likely led to Chairman Frank’s misimpressions about the brief, which he said he had not read until today. (I’ll admit that I too was surprised that he hadn’t read it yet, but I have noted before that Frank is wholly dedicated to the financial reform package that he’s been working on for the past several months.) Frank said: “I made the mistake of relying on other people’s oral descriptions to me of what had been in the brief, rather than reading it first.”
So, then John falsely concludes that “Frank now thinks the brief is just super.”
Here’s what Frank actually said:
Now that I have read the brief, I believe that the administration made a conscientious and largely successful effort to avoid inappropriate rhetoric. There are some cases where I wish they had been more explicit in disavowing their view that certain arguments were correct, and to make it clear that they were talking not about their own views of these issues, but rather what was appropriate in a constitutional case with a rational basis standard – which is the one that now prevails in the federal courts, although I think it should be upgraded.
Of course, John cites to none of that in his post, which is very similar to what I’ve been writing and what Harvard Law School Professor Laurence Tribe and former Clinton Justice Department senior staffer Robert Raben have said as well.
[Read on for my reasons why Aravosis's two main memes on this DOMA brief are false and/or inflated.]
1. Continued misstatements regarding whether Justice should have filed a brief in this case.
Then, Aravosis gets into this notion that the President regularly just “goes about telling the DOJ to oppose existing law in court.” Aravosis states that Richard Socarides’s vague statement results in a factual, final reality: “It’s not debatable, it’s what actually happens in the Oval office, and it’s not illegal – it’s a fact.” Yes, it is.
Aravosis has to turn words up-side-down to create this idea. He keeps changing statements from people, which admit of times when a law can be challenged, into statements that people haven’t said, which is that Justice can “never” fail to defend an existing law. Despite Aravosis’s false statements, Justice spokespersons never said that Justice always has to uphold laws. As I pointed out, Justice has consistently said only that it “generally” must defend laws.
In addition to my previously pointing out the statements from Tribe and Raben, Georgetown Law Professor Nan Hunter (who literally wrote the book on sexual orientation and the law), quoting extensively from Marty Lederman (Harvard Law grad from both Clinton and now Obama’s Justice Department), has looked through the “not debatable” situation of when Justice fails to defend current laws and provides a very defensible debate about why Obama’s DOJ was understanble to have defended the law.
2. “Comparing us to incest and pedophilia” claim is overstated and does not withstand any serious, legal scrutiny.
This claim, to which I’ve previously objected, has been Aravosis’s claim to fame on the brief, with him taking credit whenever anyone uses the claim.
Here’s the actual line — yes, only one sentence, and not really even a sentence but just a list of cases (called a “string cite”) after a sentence — from the brief:
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”).
These were three cases about marriages, which were valid in one jurisdiction, not being allowed under the laws of another jurisdiction. There is nothing further. The brief does not ever use the words “incest” or “pedophilia.” And, by the way, the American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition Text Revision (DSM-IV-TR), the standard for diagnosis, defines pedophilia as involving “sexual activity with a prepubescent child or children (generally age 13 years or younger).” Under that definition, there is not even a case involving pedophilia appearing in the brief at all — which is likely the reason that no mainstream publication has repeated that claim.
Despite all that, this is what Aravosis concluded this evening about Chairman Frank:
Barney thinks the language of the brief was great. He even, between the lines, defends the invocation of incest and pedophilia.
No, he clearly did not think the brief was great, as his statement made clear. Moreover, he never defended anything that isn’t in the brief, despite your constant claims to the contrary.
It is Aravosis’s spreading of this continued falsity — particularly to demean the smart, legitimate statements of members of Congress — that lead me to continued reporting about why it’s false.
* * * * *
Finally, Rep. Tammy Baldwin recently told Rachel Maddow that Obama went “as far as he could go” and that the ball was now in Congress’s court. Rachel asked how to get Obama to move more quickly. Baldwin responded: “Giving him a bill to sign would be the first order of business.” So, look for Aravosis’s next contorted post on how Baldwin threw us under the bus.
Popularity: 9% [?]
Chris Geidner is the award-winning senior political editor at D.C.'s Metro Weekly and has written for The Atlantic Online, The American Prospect, 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
Chris, please keep these posts coming. I want to pull my hair out about all the people I know on Facebook and Twitter who are linking to Aravosis without comment as if his take is definitive on the matter.
Thanks, Chris. I’ve been too busy to follow this week’s drama too closely, and was starting to think I was missing out on something huge that justified all the anger in the gay blogosphere, rather than an unfortunate string cite in an unfortunate brief. Apparently not.
I’m always ashamed how so many LGBT activists look to go irate over some of the smallest things. I tried reading the brief and made it to page 18 before I decided I don’t understand legal things. Just because case law is stupid doesn’t mean it’s not valid. This was not a great case to bring up in the first place (this couple keeps trying but just missing). Nothing’s going to change until DOMA is repealed or the Supreme Court rules. I’ve been looking for other interpretations that didn’t rely upon the vitrol on AmericaBlog and have found very few.
But the implication of incest and underage marriage is IMPLIED.
I really don’t understand how anyone could read this brief from a glbt standpoint and NOT be offended.
Aravois also pointlessly offends people who don’t consider a 16-year-old’s getting married to necessarily be a case of “pedophilia.” My grandmother got (arranged) married at 16 — that was traditional at the time in a lot of places in the world, including some rural parts of America. I am not cool with Aravois saying my grandfather was a pedophile. I am sure the folks with friends or family members who are in first-cousin marriages feel similarly about his incest stuff.
I suppose Aravois figures that’s only in “flyover country” (though actually the states that have legal first-cousin marriage tend to be blue ones like NY and VT), so screw what those Americans think.
I knew Aravosis was full of it.
Point taken about Avarosis twisted peoples words – its obvious that he did that. He also made valid arguments on some posts without such hyperbole and misinformation.
Your ‘I know you have sex w/ your sister but I never used the word incest’ argument borders on disingenuous, it seems to me.
Parsing pedo vs. ephebo philia sheds no light nor takes away from the basic valid argument against the brief’s offensive nature. I understand it was done for legal reasons but that doesn’t make it any easier for me to continue to support my abusers (this administration among them).
Chris, your posts on this have been excellent. By continually pushing the “incest” and “pedophilia” lie (with a little “child rape” thrown in occasionally) Aravosis and his parrots are doing the exact thing same-sex marriage opponents are doing: denigrating the legal marriages of those they find morally objectionable. Way to sink to their level, guys!
yeah Chris, please make sure nobody notices Frank and Dodd are the architects of this recession/depression/whatever. your hard work is appreciated by the people who matter
As I just tweeted, Chris you are Professor Xavier to Avarosis is to Magneto. He has chosen to put agenda ahead of reason and in my opinion is becoming the monster he seeks to fight. Not surprising from a born-again Democrat.
Brian’s comment is dead on. Just because one wishes to see gay marriage legal does not mean we should denigrate other taboo forms of marriage.
I do understand the reluctance to attach those arguments to gay marriage, but the LEGAL reasoning is there. As is the traditional cultural issues.
I continue to see people repeat the mis-characterization of the DOJ brief in order to generate blog hits and headlines, which ultimately will damage both Obama and the goals of the LGBT community.
Thank you! Thank you! Thank you! As an attorney who has worked on more than my share of appellate briefs, it was really beginning to bug me that Aravosis’ flawed and inflammatory analysis was being taken as gospel w/r/t the false “comparison to incest and pedophilia meme”. The DOJ attorneys may have been tone-deaf in crafting some of their legal arguments, but to accuse them of making such deliberately hurtful comparisons was just wrong.
Thank you for the post. I am a big gay rights advocate, but have been pulling my hair out over Aravosis’ demagoguery on the DOJ legal brief. For a guy who spends his days trashing Republican bullshit (and doing a good job of it at that), I find his comments on this matter to be particularly disingenuous.
I have been specifically frustrated with his so-called legal analysis with respect to the Obama administration’s obligation to defend the law. He cites 4 cases, provides zero analysis on how they apply to the current circumstances, and claims that he’s a lawyer and thus his assertions are fact and not debatable. In fact, the 4 cases that he cites (and refers back to countless times) show that, indeed, the President is not obligated to defend a law when he deems such law to be UNCONSTITUTIONAL. Obama may have personal feelings that DOMA is a bad law and never should have been passed, but that is far different than doubting its constitutionality.
Notice Aravosis’ disingenuous clouding of words with respect to those 4 cases: “…all joined in lawsuits opposing federal laws that they didn’t like, laws that they felt were unconstitutional.” What a dishonest way to conclude a “legal analysis.” They did not oppose those laws because they “didn’t like” them… they opposed them because they were unconstitutional, something John knows but can’t bring himself to admit. He instead writes the above, making that distinction as vague as possible.
I’m all with Aravosis that Obama has not done enough with respect to gay rights and has clearly fallen short on his promises. I have been quite disappointed in his actions (or lack thereof) on a clear civil rights matter. But this sort of insincere, disingenuous and dishonest nonsense does not help John’s cause. All it does is kill his credibility.
Thank you for this very informative blog. I appreciate someone breaking down the brief, the way you have. I have not heard of any of the mainstream blogs or news outlets discussing any legal experts opinions on the translation of this brief. Unless you have a legal education and background, you can’t possible understand what is being said.
If Aravosis weren’t a lawyer his statements about the substance of the brief would be one thing but since he is he’s clearly poorly trained or simply full of it.
He’s driving up traffic with his non-stop hyperbole and asking for money at the same time so I see a possible financial motive here.
I would also like to add that the DOJ brief cited Church of Amer. Knights of the Ku Klux Klan v. Kerik but Aravosis didn’t claim that the DOJ was equating homosexuals with Klan members. Seems like he’d have to to be consistent.
Thanks for the rational discussion.
Your blog is on my daily “must read” list. Thank you for your succinct, intelligent, and well-written posts. It’s nice to have the drama dialed down beyond some of the histrionics-in-the-name-of-traffic-and-blog-hits.
Geiger,
If you’re saying that marriage of a 16-year-old necessarily = pedophilia or ephebophilia, you’re calling my grandfather a pedophile or ephebophile, because he married a 16 year old. If you don’t believe that, why are you supporting the “the brief compares SSM to incest and child rape” canard?
Please make an actual argument here instead of just denying that you’ve made an argument.
The behaviour of some LGBT Dems and activists of late has been appalling. No reasonable person can fault President Obama at this point for a) failing to ignore a law when it is congress, not the White House, that makes law…and b) Not repealing DADT in his first 6 months.
But that hasn’t stop AmericaBlog and others from attacking the president in a way that would make Rush Limbaugh and Glenn Beck proud.
Shame on John Aravosis for stoking hate against our own president, and then using it to line his own pockets with yesterday’s “AmericaBlog Pledge Drive.”
Jerry Falwell would be proud.
Regarding your rebuttal to the second claim that Aravosis (and plenty of other people) have made:
You’re splitting hairs with whole pedophilia business. And the point isn’t whether or not the argument is legally sound – because I see how reasonable people could see the logic of it – but the context in which it comes in. The gay community has spent 8 painful years (and hundreds more before it) being constantly attacked by those who compare us to – or contend that we are – pedophiles, child molesters, and other sexual deviants. The Obama administration, and his Justice Department, should have been sensitive to that history and avoided using that argument. As many others have said, the damage in that brief was not practical, but rhetorical. It is that sort of language – that Obama himself has often used – that gives comfort and citations to the Prejeans and Robertsons of the world.
As for Baldwin: I agree with you that the gay community really has no reason to attack her for this interview. However, I don’t think Obama is let off the hook until a bill reaches his desk. Is his bully pulpit malfunctioning?
Grimwig,
So 16-year-old’s marriage always = pedophilia? First cousins’ marriage always = incest? I just want to understand the context in which you read the brief, since the brief itself did not use those judgmental words. I also wonder why, if it’s inherently wrong to compare SSM to first-cousin marriage, it was OK for the Vermont Supreme Court to do it in Baker v. Vermont:
“Similarly, the State’s argument that Vermont’s marriage laws serve a substantial governmental interest in maintaining uniformity with other jurisdictions cannot be reconciled with Vermont’s recognition of unions, such as first-cousin marriages, not uniformly sanctioned in other states. See 15 V.S.A. �� 1-2 (consanguinity statutes do not exclude first cousins); 1 H. Clark, The Law of Domestic Relations in the United States 2.9, at 153-54 (2d ed. 1987) (noting states that prohibit first-cousin marriage). In an analogous context, Vermont has sanctioned adoptions by same-sex partners, see 15A V.S.A. 1-102, notwithstanding the fact that many states have not. See generally, Annotation, Adoption of Child By Same-Sex Partners, 27 A.L.R.5th 54, 68-72 (1995). Thus, the State’s claim that Vermont’s marriage laws were adopted because the Legislature sought to conform to those of the other forty-nine states is not only speculative, but refuted by two relevant legislative choices which demonstrate that uniformity with other jurisdictions has not been a governmental purpose.”
I understand that homosexuals have been unfairly and inaccurately compared to pedophiles. Do you think that makes it OK for you to call my grandfather a pedophile for marrying a 16-year-old?
I think if the administration would be more clear about the paths its taking to get the laws changed there would have been less uproar.
Not that there wouldn’t be uproar.
Geiger,
“while behavior that is part of the definition of one of those terms is indeed described in the brief”
False. The brief says nothing about “sexual preference for mid-to-late adolescents” (ephebophilia); it refers to a 16-year-old’s getting MARRIED.
I am talking about my relatives because while you evidently believe it’s appropriate for John Aravosis to feel personally insulted by a comparison of homosexuality to pedophilia, you apparently can’t grasp why I’m personally insulted by a comparison of a 16-year-old’s marriage (such as my grandmother’s marriage) to pedophilia.
I’m with John Aravosis. I’m convinced the brief was unnecessary and the language unforgivable. At the very least it was badly timed. Obama could have toned it down or distanced himself from it. He did neither.
Your analysis is rational but as every lawyer knows, there are two sides to every story and rationale alone doesn’t always carry the day.
And your analysis is not necessarily free of political intent, bias or perhaps even an anti-gay agenda.
We’ll take care of the mote, you take care of the plank.
The problem is that the arguments in the brief were supporting DOMA which is hypocritical for a “fierce advocate”. Surely, we can agree on that. The Catalano Case absolutely is an incest case–that was the policy rationale for denying the marriage. They don’t have to use the word incest in the brief. We all know that is the issue. (You can say “kill with intent” and we all know it means “murder” without saying the word). I agree the Wilkins case is about consent rather than pedophilia. So Aravosis overstates his case on that point, but he is not wrong about the administration throwing us under the bus. The DOMA brief is the new tipping point in a long overdue battle within the Democratic party. No amount of legal parsing about Avarosis’ blog posts will change my attitude about Obama’s obvious lip service to our issues. I, along with thousands of others, am incensed and will not go quietly to the back of the bus! Change is coming, even if we must force it. That is what I fought for all last year, but many were naive enough to think it would be handed to them.
Congrats to PG. Amazed it took someone so long in this thread to twig to the fact that statutory rape and incest laws are not always the same–indeed, I don’t actually know I’d a state in which they are the same, though I don’t know all 50–as laws relating to age of consent for marriage. The age may sometimes be the same, but the statutes and policies behind them are often different.
The cases cited for marriages not recognized elsewhere were handpicked to be offensive. Why not refer to Loving v. Virginia for a case where marriage performed in DC was not recognized in Virginia? It would prove them wrong, and they are scared to death to mention race.
I have no idea who is more “right,” but I do know the following and it is “wrong.”
Lawrence Tribe is a brilliant man with a proven dedication to advancing LGBT equality. HOWEVER, he has also been been Obama’s Constitutional law professor at Harvard ["the best student I ever had"] where Obama his teaching assistant ["the best assistant I ever had"], AND having appeared in a TV ad for Obama during the primaries, AND having been sent by the campaign to the media to shill for….wait for it….Obama’s DOMA positions which included his lobbing an absurd, petty charge against Sen. Clinton that her position was a “symbolic insult” [whatever the hell that is] to gays [when Obama's trumpted better position was a fraud]….there is no reason to believe he is today any more “objective” about anything related to his protege and friend than any less-learned Obambot who’s never met Barry but will argue until the proverbial cows come home that BO can and will heal the sick and raise the dead.
That doesn’t mean Tribe’s opinions are any less valid; but in the interest of fairness, his opinion should not be included among those of others one assumes have a more impartial history. A hack writer for the “Advocate” with a history of tipping the factual scales in Obama’s favor might not understand that, but one would hope an attorney would.
chris, nice try- your are still full of s**t.
**Trew…tone down what language? The language Aravosis says they used or the language that was actually used?
Thats what this entire article is about. The simple fact that many people, not just the LGBT community…but mainstream media and right-wingers are also using a feedback loop of language NOT used in the DOJ brief.
**Grimwig, as PG has tried to point out. If one state or country is enlightened enough to dimiss cultural taboos about marriage, DOMA says sorry, another state currently not allow those marriages, doe not have to recognize the existing marriage due to jurisdictional/community issues.
The same “ewww thats sick, that’s your cousin” argument is the same kind of knee-jerk taboo issue that some societies have had towards LGBT community.
I am NOT saying being gay is the same as sex with one’s cousin. I am saying…the ARGUMENT, the LOGIC behind it is similar.
Ultimately consenting adults should be free to marry or have sex with other consenting adults of their choice. (In regards to “pedophilia” the DOJ case cited was because not every society agrees on what the age of consent is… The US still can’t agree at what age you can drink.)
If your agenda is more important than truth or reason, you aren’t any better than the people who seek to derail your agenda with the same tactics.
I do believe there’s nothing wrong with putting pressure to bear on the Obama administration, but how that pressure is applied speaks volumes not about Obama, but about the issue at hand.
I think even raising the notion of incest in the brief was inflammatory and inappropriate. You cannot convince me that the comparison to incest isn’t there anymore than you can convince me that a picture of watermellons outside the whitehouse isn’t racist. The cited cases were chosen deliberately to invoke incest and other social taboos, and not simply jurisdictional issues.
Geidner’s argument is ludicrous. Especially when he states that Aravosis claim that the brief is “comparing us to incest and pedophilia,” is overstated because the reference is less then one sentence. And then goes on to defend the brief by shamelessly parsing the meaning of pedophilia- a legal distinction lost on most of us since the case that was cited involved an under-aged female. How many incestuous and sex-with-minor comparisons would it take for Geidner to object to such insidious language?
And furthermore, according to Rep Frank’s own words, “… I believe that the administration made a conscientious and largely successful effort to avoid inappropriate rhetoric.” –that pretty much says it all so it doesn’t take a legal scholar to conclude Rep. Frank was happy with the language of the brief
These were three cases about marriages, which were valid in one jurisdiction, not being allowed under the laws of another jurisdiction. There is nothing further. The brief does not ever use the words “incest” or “pedophilia.”
Fine: the brief did not say “incest”, it said “marriage of uncle to niece”. It did not say “pedophilia”, it said “marriage of 16-year-old female” (so perhaps “corruption of a minor” would be more to your liking).
More to the point, the brief essentially argued that there are two types of marriages that are recognized in some instances and not in others. Some, like inter-racial marriage, should always be recognized, regardless of what the local jurisdiction says. Others, like incestuous (or uncle-niece if you prefer) or corrupting of a minor (or with a 16 year old girl if you prefer) may be regulated by the local jurisdiction.
So which category was Obama placing gay marriage in? And what types of relationships was he comparing gay marriage to? That would be incest and child-marriage.
But all of this is beside the point really. This brief is only the straw that broke the camel’s back here. Obama’s been systematically repudiating and ignoring his campaign promises and this is the event that was simply a bridge too far.
Thanks Grimwig, I can appreciate what you mean. And I certainly do think that even though the legal arguments were vaild. Obama should have taken his own criteria in looking for a judge…EMPATHY. Even with the brief filed as it was, he should have come forward and said, “hey we filed a brief, I felt obligated to do so, but I stand with you…etc.”
Just because we think there is nothing universally wrong with homosexuality does not mean everyone else feels the same way.
Again, thats why other non-traditional relationships/marriages were brought up.
Each time you make the judgement that cousins marrying is “incest”, you might as well let preachers use the term “sodomite”,etc. Incest & consent are legal definitions and as such are subjective depending on the laws of that community.
*For what its worth 18 would be my ideal age of consent, kids should get a diploma before they get laid. But I recognize that I am not the final universal ruler on all that is good and holy.
Until people can step out of themselves to see where someone else is coming from, nothing will change.You don’t have to admit that person is “right” and you are “wrong”.
“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.” And then they go on to list a case concerning an incestuous relationship. Because it conflicts with a state’s public policy…just like a gay marriage. And this is not conflating my marriage with incest how? I think you are really reaching. There’s only so much apologizing you can do for this administration.
As for comments on the rage of LGBT people, there is something you need to understand. This is not the first incident for us with these folks. From Rick Warren to disappearing/reappearing promises on the website to refusal to comment on ANYTHING going on in the nation to do with huge news on marriage equality (except for that stupid joke he made at the National Correspondent’s Dinner) and on and on and on. I was willing to be patient, because there is a lot going on. It has become clear to most gay folks, though, that the administration does not have us on their radar. At a certain point, I had to wonder, why exactly is everyone else’s issue more important than my equality? Why is it that we have been giving to Democrats since Stonewall without a single piece of pro-gay legislation being moved into law on the federal level? At what point will we have had enough? This brief was enough for me.
I stood in the rain working as a legal monitor at the polls for Obama. I gave money in spite of being a broke law student. No more. I am exhausted by the Democratic party telling us to be patient, and I am tired of our “leaders” cowering in hopes of getting some scraps and maintaining a semblance of influence and power. It is not 1993, and President Obama treating us like we are radioactive is no longer acceptable.
And one more thing: if you honestly believe that Barney Frank called out the President of the United States from his own party without having read that brief, and then suddenly read it and changed his mind, I have a bridge I would like to offer you for a reasonable price. Barney Frank did what he always does, which is whatever is best for Barney Frank. At least Jared Polis had some stones and didn’t come to that slap-dash press conference.
Having read the brief, and the responses to it, I’m not with Law Dork 2.0 on this. There are so many better ways the administration could have handled this. My opinion of Frank couldn’t get any lower at this point.
Am I just ADD or was that some confusing, convoluted wording in this analysis. I admit, I ended up skimming because the sentences seemed at times, Palin-esque. But I’m tired.
I see your points. However, I’m still with the outrage crowd. You are doing a legal parsing that the press will NEVER do. It is enough that Obama cited the incest -and yeah, that’s what an uncle and niece getting married is — and cited “underage” marriage – which most equate with pedophilia, especially when there are gays to jump on involved. The fact that his DOJ went to these lengths to defend DOMA are enough for me to get PISSED. Remember, he called HIMSELF a Fierce Advocate. What a crock. I’m with the other guy — histrionics in this case are a-okay with me. Whatever gets Obama off his ass and to actually DO some of his empty rhetorical platitudes about rights.
I was hoping to find a better analysis than this. While I agree with the “pedophilia” remark; what about the comparison that was denied – the Loving v. Virginia case. No the DOMA brief said, this is nothing like loving. It is more like the uncle marrying his niece and a state protecting a child. The DOMA brief also parrots the right wing talking point that this does not discriminate against gay people because if we marry someone of the opposite sex, we can get the benefits also. If you want to rationalize and legalize and argue that the Obama administration filed a brief which denies us what I believe are our constitutional rights then go for it. We don’t have to all agree. But looking at history, it is the activists – not the rational apologists – that actually win the rights.
Frank’s statement says that the brief was a “…largely successful effort to avoid inappropriate rhetoric.” I’m with John on this one thinking that “largely successful” comes across as “just super.” As for the avoidance of “inappropriate rhetoric,” it was Chris who pointed out that the words “merely” and “simply” in the brief were antagonistic and inappropriate.
So if in X state I can marry my 1st cousin, but Y state says no…and therefore that state won’t recognize my marriage as valid….that’s OK with everyone here?
If so, then YOU have just defended DOMA.
Let’s conflate these social/cultural taboos with food.
Dog is an acceptable meat to eat in Korea.
Eating beef is acceptable in the US, but not dog, because that’s “wrong”
Yet eating beef in India is viewed with the same revulsion.
On a personal level, I wouldn’t eat dog or marry my cousin. But I won’t cast judgment anymore than I’d allow people to judge SSM, or my love of a hamburger.
There are three issues with the court citations and whether they were offensive to the LGBT community.
First, were these the controlling legal cases, on point, and still in effect at the Federal level? Clearly, as some of the comments have stated, it does not mention Loving V. Virginia, which I believe was decided in 1967. Instead, it quotes cases from 1961, 1958, and 1957.
Are these cases still relevant, or are the controlling precedents different? Is there another section in the brief where the Justice Department explained why these cases were on point, and Loving v. Virginia was not on point? If not, while some might consider it advocacy, I would consider it a disingenuous use of previous court cases to attack the LGBT position, and not a required advocacy for the Justice Department to defend the law.
Second, are there other cases that the Justice Department could have used to establish that marriages in one jurisdiction are not valid in a second jurisdiction? Granted, a significant category of marriage law restrictions deals with age and familial relationships, but could there be more? In the past, blood tests were required. Could lack of a proper officiant have been a factor? There may have been more ways to go about it.
And third, does the citations justify using a lack of state recognition translating into a lack of federal recognition. In some states, like it or not, cousins can marry. (Wisconsin requires sterilization for first cousins to marry unless over 55 – Ewwww!) In some states the age of consent to get married differs. But does the fact that one state may not have to recognize those marriages, since it is contrary to its public policy, mean that the federal government does not recognize those marriages.
That’s partly why this feels like its an assault on the LGBT community – because the law clearly is. And standing up to defend it requires twists of logic and citing a lot of bad case law that compares us to a lot of public policy differences in the grey areas of family law.
Here’s the thing. IT DOSN’T MATTER!
OBAMA has been silent on gay issues. Who care’s if the brief was or was not misrepresented by some blogger.
What matters is it is POSSIBLE to think Obama has ignored us, and that’s because he HAS.
You can argue about the details all you want, I want ACTION!
Thank you for this article. This was very telling of the direction we are heading
Really, you want to get caught up in trying to prove that Aravosis wasn’t quite LEGALLY legit when he used the very catchy sound-bite worthy incest and pedophilia comparisons??
Ok, so maybe he exaggerated just a little. You win. You feel big and smart and manly?
But the brief says that same-sex marriages don’t have to be recognized because they will COST TOO MUCH.
That gays and lesbians are free to marry as long as they marry someone of the opposite sex.
That gays and lesbians aren’t really harmed by denying them marriage recognition.
Those are OUTRAGEOUS and ABSURD arguments.
What do have to say to defend those?
The bottom line is: The brief is an affront to intelligent people everywhere who believe that we all deserve to be treated equally under the law.
Your nit-picking will never change that, so what is your point exactly?
Chris, you’ve pretty much destroyed any present and future credibility you had with the gay community and its allies. And I’m sure, as a pragmatist who’s completely honest with himself – judging from the crushing replies you’ve gotten here and especially at The Salon – you know it.
Whatever reader base you have now will be full of apologetic self-hating homosexuals or bigoted heterosexuals who love the in-fighting. Enjoy the sad life of a pariah.
Be sure to write us from the next Log Cabin Republican conference.
PS: your obsession with Aravosis is really starting to creep me out. Take medicine.
Chris,
From a gay man who has been an activist for the past 18 years (now 36), I want to thank you for trying to infuse some rationality into this debate. I assume you are a gay activist of a sort as well–though I can’t be certain–and I’m sorry that so many are so blinded by rage so as to render these illogical cheap shots against you.
I’m sad to say we gays have jumped the shark on this one. I realize there is a lot of frustration out there; I feel it too. But I choose to focus my attention on the amazing speed in which we are winning the gay marriage battle–considering the 45 years or so we’ve been fighting this battle. I also choose to funnel my energy into the battles that matter…legalizing gay marriage in the states, healthcare, and climate change legislation rather than calling sour grapes at the democratic process, which is purposefully slow.
After all, even the repeal of DOMA won’t necessarily change the Federal definition of marriage. Not until we win equal marriage in most if not all 50 states. I learned that from reading the brief, and I’m not a legal scholar. Everyone who is upset should read the actual brief.
Still I believe that Obama and the Democrats will lead the charge to repeal DOMA–because it is a hateful, and unnecessary, law. I’m just willing to wait while they work on the incredible crises we face this year. We need to wait until the states adopt equal marriage to receive Federal benefits anyway–which very well could be sometime midway through the next decade.
If there is faster way to handle it, I will do my part.
Chris,
I am not an attorney, and I really want to make sure I comprehend accurately the arguments you’ve made. So, I’d like to reflect back my layperson’s understanding of your arguments to you. Please correct me if I inadvertently misrepresent the foundation (or any aspect) of your arguments. I will also pose a few additional comments and questions based on my understanding of your positions which may be moot if I misunderstood you in the first place.
A) Does the following statement accurately reflect your contention re: the DOJ’s brief in support of DOMA:
“Justice is not always required to uphold the law, although it generally does so.”
A1) This suggests that there was no legal mandate requiring the DOJ to file the brief, yet DOJ did so nonetheless. Therefore, DOJ (and, by extension, the Obama administration) did so merely out of a respect for conventional practice or standard operating procedure? Thus, had DOJ not filed the brief, the repercussions for the administration would have been political. However, no laws would have been violated. (How am I doing so far?)
A2) Assuming A1 is correct, then the administration’s decision to file the brief suggests one of the following: (a) The administration weighed the potential political consequences of filing versus not filing the brief and concluded that the political consequences of not filing the brief would be more politically detrimental to the Obama administration ; (b) the administration actually supports DOMA and therefore rushed to defend it with both guns blazing- which would seem consistent with your earlier assessment that “unlike the Obama Administration’s brief filed in the Don’t Ask, Don’t Tell case turned away by the Supreme Court this week, last night’s filing in Smelt v. United States goes too far. It’s offensive, it’s dismissive, it’s demeaning and – most importantly – it’s unnecessary. Even if one accepts that DOJ should have filed a brief opposing this case (and the facts do suggest some legitimate questions about standing), the gratuitous language used throughout the filing goes much further than was necessary to make its case”. I find this scenario to be the most likely given the ardor of the brief’s language, particularly when juxtaposed with Obama’s repeated assertions that he opposes DOMA; (c) Although Obama opposes DOMA, he made the strategic decision to file the brief (or is it more accurate to call it a motion to dismiss?) defending it b/c the outcome of the case is a given regardless of the DOJ’s motion; why risk the potential political ramifications of inaction if the outcome is a virtual certainty?
If A2a is accurate, then Obama either lacks the courage of his purported convictions (imagine if Lyndon Johnson had similarly cowered away from the task of cracking skulls in the Senate to get the Civil Rights Act to his desk) or a shred of integrity…otherwise how does one explain basing a decision with massive ramifications for the lives of an entire class of human beings on nothing more than cold, reptilian-like, self-interested political calculations? “Well, he’s a politician, and that’s what politicians do.” Obviously…but does that warrant coming to his defense? Moreover, A2c seems unlikely given the apparent ferocity of the defense DOJ mounted. Why not provide a milquetoast defense of DOMA instead of going overboard as you suggested DOJ did?
B) RE: the “incest” and “pedophilia” debate, you stated, “These were three cases about marriages, which were valid in one jurisdiction, not being allowed under the laws of another jurisdiction. There is nothing further. The brief does not ever use the words ‘incest’ or ‘pedophilia.’ And, by the way, the American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition Text Revision (DSM-IV-TR), the standard for diagnosis, defines pedophilia as involving “sexual activity with a prepubescent child or children (generally age 13 years or younger).’ Under that definition, there is not even a case involving pedophilia appearing in the brief at all — which is likely the reason that no mainstream publication has repeated that claim.”
Does the following statement accurately characterize your position:
“The DOJ was making a purely legal argument, and those cases were brought up in the context of providing effective argumentation to support the notion that DOMA is constitutional (i.e., “Prior case law indicates that it is not unconstitutional for states to choose whether or not to recognize marriages performed in other jurisdictions”).”
Now, before asking a couple of legal questions to which I do not know the answer, I must point out that while you correctly described the DSM-IV-TR diagnostic criteria for pedophilia, the ICD-10 criteria is “A sexual preference for children, boys or girls or both, usually of prepubertal or early pubertal age.” Early pubertal age isn’t very precise, is it?
Why does the ICD-10 classification matter? Well, the World Mental Health Composite International Diagnostic Interview (CIDI) has been THE gold standard for diagnosing psychopathology in the field of psychiatric epidemiology for the better part of 20 years now (yes, in the US as well…especially in the US…virtually every major psych epi study in the US has used it…google “National Comorbidity Survey, Mexican American Prevalence and Services Survey, National Comorbidity Survey Replication, National Survey of American Life, National Latino and Asian American Survey). The reason the CIDI became the “Gold Standard” was due to a variety of methodological problems (largely pertaining to diagnostic validity) of the first standardized psych epi measure, the Diagnostic Interview Schedule (DIS).
The DIS was based on DSM nosology, whereas the CIDI is based on ICD nosology. Although the major psych epi studies in the US have not assessed for pedophilia using either the DIS or the CIDI (for obvious reasons), ICD criteria for psychiatric disorders are accepted by US psychiatrists, psychologists, and especially the academic mental health researchers (regardless of discipline) as being at least equivalent to (and generally superior than) the DSM nosological framework. Then, of course, there are the various de facto legal definitions of pedophilia via age of consent laws. So, the definition of “pedophilia” is not as clear cut as you make it out to be.
Regardless, one of the cases involved incest by virtually any standard: Uncle-Niece? Perhaps there is someplace such an relationship doesn’t violate the incest taboo in the US, but I haven’t heard of it. Perhaps I have been living my whole life blissfully unaware that I am surrounded by legally married aunts and nephews. For all I know, I’ve attended countless uncle-niece weddings. Somehow I doubt it though.
Frankly, we could debate whether or not any of the cases were REALLY examples of pedophilia or incest until the sun burns out (and we could go even further and debate the morality/immorality of each), but I think most people would concede that it is certainly not unreasonable for an adult from the US to use the labels “pedophilia” or “incest” to describe such relationships. I’d be willing to wager that if one were to present the Uncle-Niece case to a national probability sample of US adults and asked them to describe the relationship, the word “incest” would come up more than once. In fact, I’d hazard a guess that 90% of Americans would consider that an example of incest.
Having said that, I now have a couple of questions:
1) Do marital age of consent laws vary by state? In other words, can a 17 year old legally marry a 16 year old with parental consent in say, Alaska, but not Maine?
2) Say an 11 year old and a 13 year old are forced into an arranged marriage in country X… is that marriage still recognized if the couple relocates to the US?
Here is what I am trying to get at: Let’s assume you are right and there was no implicit association of same-sex relationships with incest (and perhaps pedophilia) in the brief…it was simply a matter of legal argumentation concerning the constitutionality of a jurisdiction’s right to recognize (or not) a marriage performed elsewhere. Is there no case law whatsoever that could have been invoked that was a bit less Rick Warren-esque?
3) Obviously, the President cannot himself introduce legislation. Based on my understanding of history, however, Presidents routinely have had members of Congress who belong to their party introduce exactly the legislation they wanted. *Especially* if their party is the majority party in both houses of Congress. Have I misunderstood history? Is that illegal behavior for a President?
If not, are we to believe that there is really no one in Congress (Kucinich, Pelosi, Feinstein, Boxer, Frank, etc) willing to sponsor a bill to repeal DOMA?
As much as I loathe Obama, I know he’s a rather brilliant man. For the sake of argument, let’s assume that: (1) His friendships with McClurkin the ex-gay et al. on the campaign trail were just isolated examples of Obama’s big tent; (2) Rick Warren, pal and beneficiary of anti-queer Christian Jihadist Martin SSwempa who wants to make terrorizing LGBT people a national pasttime: again, just another example of Obama pitching a tent; (3) Bishop Gene “I got to pray at an inaugural sideshow that was *accidentally* not televised” Robinson was unfortunately not allowed into the tent, but it was all a big misunderstanding…well, at least to the Obama camp. HBO claimed to have clearly understood the directions from the Obama people NOT to televise the prayer; (4) The reports in the Daily Mail that Obama has chosen a cadre of notorious evangelical homophobes and “ex-gay” wingnuts to serve as his inner circle of spiritual advisors…just more tent. (5) Prop 8 comes and goes and comes back again, a bunch of states legalize same sex marriage, and Obama, the fierce gay advocate has nothing to say (b/c he’s against gay marriage and FOR civil unions…oops, I forgot); (6) Not that I care, but LGBT people keep getting booted out of the military, and Obama assures us he’s working on it but it’s just so gosh darned complicated and it’s gonna take a lot of work cause it’s really really hard (unlike that stimulus package), but he *promises he’s working on it…much like he’s working on a plan to withdraw from Iraq I suppose…you know, the centerpiece of his campaign? (7)Obama, the fierce gay advocate that he is, filed a brief that went (as you said) “overboard” in insulting the queer community in a brief defending a policy he repeatedly promised to fight to repeal, a brief that he didn’t HAVE to file in the first place…well, that was just um, strategy…right? (8) Neither the brilliant former editor of the Harvard Law Review (and lover of gays everywhere) nor his army of Ivy League Bush admin DOJ retreads could come up with a way to word the DOMA brief that didn’t sound like it was written by Rick Warren..(9) Obama cannot get a single person in the Dem majority congress to sponsor a bill to repeal DOMA, which he FIERCELY opposes…a bizarre fluke, nothing more.
Given the above coincidences, don’t you find it the least bit, um coincidental, that this genius we have for a president was able to find congressional sponsors for the pathetically inadequate Domestic Partnership Benefits and Obligations Act to “quell the furor” just in time for that big gay fundraiser (http://www.nytimes.com/2009/06/17/us/politics/17gays.html?_r=1)?
Just because Aravosis’ statements are inflated doesn’t make them ineffectual. It wouldn’t occur to a person who practices law that overstating the case is the activist’s job.
Aravosis has been most effective as an activist by getting our community riled up and out of our comfortable malaise.
Agitation is an integral and necessary part of our democratic system. And sometimes, you have to be outrageous to agitate, not to mention being outrageous is part of our cultural heritage.
It’s not necessary to be so close-focused in this case. You’re trying to foist an apple onto an orange.
I guess Johnny boy duped the NYT, SFChronicle and the Liberal MSM. The Accuser is always guilty
I’m confused (which I admit I often am, with legal issues.) You wrote yourself, last night’s filing in Smelt v. United States goes too far (pdf). It’s offensive, it’s dismissive, it’s demeaning and — most importantly — it’s unnecessary. Even if one accepts that DOJ should have filed a brief opposing this case (and the facts do suggest some legitimate questions about standing), the gratuitous language used throughout the filing goes much further than was necessary to make its case.
Now people are pointing to this new blogpost to say that “see? The brief wasn’t so bad after all!”
Unlike Aravosis, I understand that the DoJ sees a need to defend DOMA. I and many people get that. But did they have to go this far?
Re. the incest issue, I agree that Aravosis spins too fast and furious. But the simple fact is that to compare our marriages in any way to marriages that some may consider incestuous, even if it is as a point of law and not saying anything about those marriages, inevitably leads to a link between same sex marriage and incest. It’s simply human nature. Because non-lawyers can point at that and say, “see? They are like incest!” even if not intended that way. Most of us don’t think a 16 year old should be married. (I am convinced my 19 year old shouldn’t even consider marriage till she’s 30!). Therefore, comparing our marriages to an under-age marriage, even if that’s not the point of the comparison, inevitably makes an “ick” factor connection.
As for Barney frank, it’s becoming a bit too much like the definition of “is”. Lots of people, including lawyers, who include(d) you, consider the language of the brief needlessly hurtful, even if “legal”. Is it, or isn’t it?
If Justice “generally must defend laws” why did the Obama administration decide this was one of those laws to defend?
I’m angry, one reason I gave so much money and time to this president was because of his principled stand to repeal DOMA.
This is not okay.
The simple proposition for which the brief uses them is that “courts have widely held that certain marriages performed elsewhere need not be given effect, because they conflicted with the public policy of the forum.” The brief simply explains the circumstances on which those cases were based. And it does so attempting to use the least offensive, factual language it can to do so — hence the lack of such words ever showing up.
As Frank (and I have) said, there are parts where the language used was further than needed, but this truly isn’t an area where I think Aravosis’s level of disdain is anywhere near justified.
It’s not implied. What the DOJ writes briefs on my habeas cases citing cases that say that the detention law I’m challenging is constitutional but have as underlying defendants drug traffickers and murderers they’re not saying my client is either one of those things they’re simply saying the law is constitutional.
Citation does not imply moral equivalency between the parties.
However, as the cases were regarding marriages that were legal in the jurisdictions that performed them and are legal in most states right now it’s the height of hypocrisy to pass moral judgment on them.
He makes valid arguments many times, and you can see that I say so when he or others at AmericaBlog do so.
The brief doesn’t “compare” them. The brief applies the underlying legal issue — “certain marriages performed elsewhere need not be given effect, because they conflicted with the public policy of the forum” — of those cases to apply them to another situation.
An analogy to Aravosis’s statement would: a court references Marbury v. Madison for its legal principle of judicial review while parenthetically noting the underlying facts about refusal to deliver commissions means that the lawyer filing such a brief is “comparing” refusal to deliver commissions to the underlying privileges afforded by whatever statute is being challenged.
He’s using a legal brief’s citation to somehow translate into a non-lawyers “comparison.” It’s just not fair.
John Geiger,
Except the brief never refers to having sex with one’s sister. In fact, it refers to the same disparity in state marriage law that the Vermont Supreme Court did in forcing the state to give marital rights to same-sex couples: that first-cousins can marry in some states (like VT) and not in others (like TX) and yet the Republic has not collapsed due to these differences.
Until someone can point me to John Aravois being upset by the VT Supreme Court referring to “incest” as part of an argument FOR gay rights, I’m going to think he’s a manipulative ass when he says what’s upsetting him is the comparison, and not the fact that it’s being used AGAINST gay rights.
And again, are you ready to go there on calling my grandfather either a pedophile or ephebophile, instead of acknowledging that one can marry a 16-year-old without being a pervert?
First cousin marriages are legal in more that 50% of the US. That’s what the case was about. Not someone’s sister.
More than 25 states allow 1st cousins to marry and all of them allow 16 year olds to marry. Nice of John to pass judgment on the morality of those marriages.
The sister argument referred to this blog sayimg the word incest isn’t actually mentioned in the brief, which doesn’t negate the fact that incestuous relationships were mentioned. The Republic won’t collapse if I’m not given full and equal rights; that may be a comfort to you but it isn’t to me.
You wrote:
“And again, are you ready to go there on calling my grandfather either a pedophile or ephebophile, instead of acknowledging that one can marry a 16-year-old without being a pervert?”
Unless you can point me to where I made such an accusation, it seems you are taking your writing lessons from Avarosis himself. Apparently very few people wish to honestly discuss the actual issues involved w/o hyperbole, misinformation and misdirection. I understand that from Maggie Gallagher but I’m saddened to find it here.
“If” has nothing to do with my first or second comment. I said what is written and I said no more nor any less. Also, both your replies are unintelligible in the context of the comments of mine that you replied to.
The only point I made about either psychological diagnosis was that this blog criticized Aravosis for using the term pedophilia when that actual term wasn’t used in the brief, while behavior that is part of the definition of one pf those terms is indeed described in the brief. In my opinion, pointing out that the actual word wasn’t used is not an important point, but a cheap shot at Avarosis. Clearly this has nothing to do with any of your relatives.
You wrote:
“Please make an actual argument here instead of just denying that you’ve made an argument.”
I’m lost. Something is getting lost in translation here, I don’t think you or I can successfully communicate in this forum. If it makes you feel better, I’ll take full responsibility for that fact. Best Wishes.
Wishing you all things rare and beautiful.
No, in fact, I don’t consider 16 too young (and thus, such relationships to constitute pedophilia) – but that’s irrelevant. The issue is that the State of New Jersey DOES consider it to be pedophilia, which is why such laws exist. Thus, the Obama administration – in citing such cases – allege that same-sex relationships are no more valid than those between an adult and (what that state considers to be) a child.
And the reason the Vermont Supreme Court is in the clear is because they don’t consider 16 year olds children and because they were GIVING GAY PEOPLE RIGHTS, rather than working hard to withhold them. Therefore, the Vermont Supreme Court clearly did not believe gay people to be immoral, whereas (it appears at this point) that the Obama administration does.
“The issue is that the State of New Jersey DOES consider it to be pedophilia, which is why such laws exist.”
Wrong. NJ does not consider sex with a 16-year-old to be pedophilia. Sex with 16-year-olds is legal in NJ. Pedophilia is about SEX, not marriage.
If a state allows 16 year olds to have sex, but not to marry, it should be obvious that it doesn’t consider marrying a 16 year old to be *pedophilia*. Rather, it doesn’t consider 16 year olds capable of consenting to a (theoretically lifelong) legal commitment.
If a 16 year old wants to stop a sexual encounter, she has the legal right to say “Stop” and expect that it will stop and that she can leave. If a 16 year old wants to end her marriage, she is required to fill out a lot of paperwork, pay fees, and in at least two states, provide a “ground” for divorce (e.g. adultery, abuse, etc.).
Given that 16-year-olds generally are not considered competent to consent to other legal contracts, why would they be considered competent for the marital contract? (Sex is NOT a contract or any other kind of legal status or relationship.)
@PG
I’m not really sure why, but I can’t reply directly to your…reply.
So, what you’re saying is that the Obama administration didn’t conflate homosexuality with pedophilia, but simply with people too young to be “capable of consenting to a (theoretically lifelong) legal commitment.” In sum, they’re not people who have sex with children, just people who marry (those that they consider to be) children, and doesn’t that just make them pedophiles that want their “victims” to commit?
I mean, we can argue semantics all day long. Whether or not it actually fits the definition of pedophilia is irrelevant. The essence of the comparison is the same: relationships between two men or two women are as morally and constitutionally valid as that of an adult and child.
Perhaps I could give the Obama administration the benefit of the doubt in citing this case, and maybe believe that everyone is misinterpreting it. But the other two, involving incest, make that impossible.
Yes, Trev, the anti-gay agenda I’ve been pushing in all of my blogging and otherwise in my professional life all the way back to college.
Trev, it doesn’t look as much like an anti-gay rant as it does an jealous school girl who’s angry the head cheerleader (Aravosis) is winning the favor of the football team (the gay community).
Or at least an apologetic rant.
I find it hard to take Chris serious when the tone of his breakdowns continually screams I’M RIGHT, HE’S WRONG, HAHA! It seems he’d rather attack Aravosis – over semantics by the way – than attack the issue at hand. Whether you felt the brief invoked comparisons to incest is simple semantics, because from the way it was written that particular subject doesn’t have a right or wrong answer – it’s highly subjective.
Chris, the brief did at the very least invoke, and cite incest. That’s fact. So Chris, if you feel John is wrong because feels this fact in the brief’s homophobic language COMPARED gay relationships with incest, that’s cool. But is harping on something so small, in such a ‘my shit doesn’t stink’ manner honestly the best thing you could be doing for the community right now?
Or is it the best thing you could be doing for your ego?
But you see, Trev, your post actually is an example of what Chris is trying to stop here. You don’t know any of his writings or work, but are somehow able to know his alleged bias and possibly anti-gay motives?
The point of this article, it seems to me, is that there’s a lot of anger and passion and rhetoric flying around out there. Some of it well-placed and some of it overblown and not based on fact. Chris is saying the nuclear meltdown many in the our community are having is premature. Does the President need to do better? Absolutely. Do we need to hold his feet to the fire to do right by us? Totally. Does this mean being pissed off and playing fast and loose with the facts is a good thing for us right now? No.
I read his blog because he actually examines the facts and provides his opinion on it. Plenty of room to disagree (this IS politics and law here – there will always be disagreement) but being a law dork, he often cuts through what the echo chamber says and provides original thought.
Sorry — defending DOMA by citing to cases in which pedastry and incest were given as examples of rational state behavior is not the “smallest” things to me.
Please go read the brief yourself. It’s disgusting. I’m a dem. A lawyer. A gay. Shame on Obama’s DOJ.
I don’t know you or your blog so I commented on what I saw here. This post and many of the comments looked like an anti-gay rant.
Yes, Trev, Chris has spent his entire life as a closeted straight Republican. He is scheduled next week to come out of Pat Buchanan’s closet.
I haven’t laughed so hard in ages, Trev. Thanks.
Had I only listed Tribe, then I might concur. But he is one of a list, so I see no reason not to include him — particularly when even you admit: “That doesn’t mean Tribe’s opinions are any less valid.”
(And, as an aside, why an attorney would necessarily know the politics confounds me. I’d think a “politico” would more likely know of Tribe’s support for Obama.)
Manos,
I totally, 100% agree with you: people should be able to marry first cousins or 16-year-olds – there’s nothing inherently wrong with either of those things.
However, to attribute the conflation of those things by people or the media with pedophilia and incest is not, as you suggest, due to a “feedback loop,” but rather, a cultural perspective shared by all involved.
Where you and I draw the line in respect to pedophilia (maybe you say 16 and I say 15) or incest, it doesn’t change ANYTHING. The fact of the matter is that many people DO consider these cases ones of incest and pedophilia – this paints the gay community in an offensive light and allows people like Carrie Prejean or groups like NOM the ability to quote the Obama administration as evidence for why discriminating against gay people is fine.
And, at the end of the day, the Obama administration is still arguing that states have just as much a right to say that gay people can’t marry as they do to say who is too young, or too close in relation to their spouse. This could potentially stall marriage equality efforts in states across the country, which, in light of the Obama administration’s inaction on the issue, is particularly troubling.
With regard to your last paragraph: which state?
Well not shared by all since 100% of states allow 16 year olds to get married and over 50% of them allow 1st cousins to get married. So the projection that they’re morally repugnant is on the reader and no one else.
fuzzygraf,
1) I think you misunderstand the idea behind a brief. A brief is an advocacy piece. The point is not to advance arguments that one’s opponents would make, but to advance arguments for the position one is defending. The position the DOJ is obliged to defend is that DOMA is constitutional. How does citing Loving help that position? You seem to believe that the DOJ was supposed to be arguing against DOMA. That’s not the DOJ’s job; that the job of the people who brought the lawsuit. I suspect the brief will make much more sense to you — though, obviously, be no more agreeable — once you realize that.
2) Loving is irrelevant because it’s not based on a state’s recognizing a type of marriage that it does not itself perform. The Supreme Court did not merely force Virginia to recognize out-of-state interracial marriage; it forced Virginia to conduct such marriages itself, by declaring interracial marriages to be a Constitutional right. Having an interracial marriage myself, I’m quite happy about that, but I’m not going to assuming that a Loving citation is appropriate for every argument.
Loving vs. Virginia? Is that still good law?
Grrr. I mean is that relevant law?
Rdm,
OK, so what cases would you cite to show that states can refuse to recognize out-of-state marriages that do not accord with that state’s policies? That was the point being made in the brief, and lawyers are supposed to support their points with citations to, like, the law. If you think the DOJ did this wrong, tell me how you’d have done it better. (And for fuzzygruf’s benefit, let me clearly state that “this” refers to the unfortunate necessity of defending DOMA’s constitutionality; you aren’t doing that job better by attacking DOMA’s constitutionality instead.)
As I’ve stated over and over, the Vermont Supreme Court cited those horrible incestuous first-cousin marriages as a reason in FAVOR of forcing the state to grant marital status (albeit under the name “civil union) to same-sex couples. Where were these howls in 1999 when the VT Supreme Court did this? How did anyone stand to have same-sex relationships and first-cousin marriage compared a decade ago?
I ask the question as well. What case cites would you use to show that states have the right to decide what marriages they’ll recognize?
Also, why are you saying that a legal marriage between 1st cousins is incest?
“I see no reason to include someone that’s on a list just because there’s every reason to believe he’s biased.”????
Ignorance of that is your excuse? Due diligence is irrelevant? Then you’re just as guilty of cherry picking as you accuse Aravosis. Easy target much?
Try demolishing the points of Jon Davidson, Legal Director of Lambda Legal, which go nowhere near the incest/pedophile debate but are still as condemnatory as those who do:
“Whether or not the administration felt a need to defend, there are many ways one can defend. The administration could have rested on the first two arguments raised in their papers (jurisdiction and standing) that these plaintiffs were not entitled to sue without arguing at this point that DOMA is constitutional. Doing that would not have waived those arguments. What they need to be asked is why they gratuitously went out of their way to make the outrageous arguments they unnecessarily included such as that DOMA does not discriminate based on sexual orientation or that the right at issue is not marriage but an unestablished right to ’same-sex marriage’ or that DOMA is somehow justified in order to protect taxpayers who don’t want their tax dollars used to support lesbian and gay couples (while it’s apparently fine to make lesbians and gay men pay the same taxes but be denied the benefits provided heterosexual couples). Their public statements about the filing try to sidestep these points. They absolutely knew they did not need to make these additional arguments, especially at this time and consciously decided to do so.”
If Chris wanted to stop me, he could have blocked my post or offered a counter argument. Instead he boasted about himself as if I should somehow know who he is.
Read the post again. I stand by what I said.
Thanks, Cory,
Clearly there’s an underlying motive here. I was trying to figure it out but all I came up with was that he was one of the “how dare you criticize His Holiness” crowd or another patience-preaching apologist.
But the jealous school girl theory fits perfectly.
Lawyers!
You’re comfortable passing moral judgments on legal marriages and do so without a hint of self-reflection. That’s amusing. However, you clearly don’t understand legal writing.
It’s inherently disgusting since it’s defending discrimination but as a lawyer you know that case cites do not imply moral equivalency.
What cases would you use to make the same arguments? You must have some right?
Oh good– then it was only statutory rapists he compared gay marriage to, not pedophilia. That makes me feel SO much better.
Do you copy and paste this response on every website? I just read the same thing you wrote on two others.
So 100% of US states allow child marriage and 50+% allow incest? Those things must not be very controversial then. Why is it bad that gay marriage is compared to them?
He probably relied on Aravosis or someone who read Aravosis. Frank is a lawyer and lawyers know that case citations do not imply moral equivalency.
So when the DOJ cites terrorism cases when fighting my habeas petitions for clients who were just convicted of using drugs I should be outraged that they called my client a terrorist or at least the equivalent of one?
In many states, 16 is the age of consent.
100% of states allow 16 year olds to get married. Why are you passing judgment on those marriages?
Read closely. As I pointed out, the cite is to a case about age of consent, not statutory rape. (A link to the case would be enlightening.) And again, it is not clear that the facts of the case would constitute statutory rape under NJ law in any case: whatever the law in 1958, now at least NJ has a 16 and up age of consent, but still only allows marriages at 18 without parental permission.
But hey, why let little facts get in the way of your outrage?
It’s not legal parsing. It’s an understanding of basic legal writing and reasoning.
It’s weird that 100% of states allow pedophilia isn’t it?
I am shocked and outraged that a legal brief used legal reasoning in a manner appropriate to it’s audience (a judge), and that an advocate did not breach a duty of zealous advocacy in order to make sure it would play well in the press.
Is that the point?
Race is a suspect class. That’s the difference.
would you marry me?
seriously – spot on!
Couldn’t reply below but if you believe that case citations imply moral equivalency and therefore the DOJ was comparing gay marriage to incest and pedophilia (not that lawful marriages should be judged in that way right?) then how do you address the citation of KKK cases and other all the other case citations? Was the DOJ implying moral equivalency with all those cases as well? They must be right?
But DOMA IS unconstitutional and it would be very easy for Obama to oppose it on those grounds.
But THAT is exactly what angers me about the brief. People here are claiming that Aravosis is wrong to say that a president is not obligated to defend the law because a president takes an oath to defend the law of the land. That is simply NOT true. The president, and ALL public officials, take an oath to defende the CONSTITUTION, INCLUDING defending it against unconstitutional LAWS. I think the DOJ VERY easily could have made a case that this law was indefensible due to the fact that it is unconstitutional.
Does everyone here realize what DOMA actually says and does? It doesn’t just “protect” marriage by establishing “one man, one woman” restrictions on federal recognition, but also makes virtually ANY recognition similar to marriage unlawful. It seems to me that a first year pre-law student could successfully argue the unconstitutionality of such a restrictive and discriminatory law targeted at a certain minority.
Actually, I do. Because I think being up-front and honest is important.
(Should I respond to everything, or just where ALL CAPS are used?)
As for the rest, I’ve stated that I think the brief was overreaching. If you look throughout the past week on the blog, I have several problems with the brief, and have made that clear.
The bottom line is: John Aravosis continues to misstate facts in order to advance a rhetorical argument. That is both unfair to the legitimate complaints about the brief and about Obama’s lack of action on LGBT issues and to those at whom those complaints are lobbed.
(Again, see below, I love ALL CAPS.)
As to your substantive points, please read my piece in Salon.com, which I think addresses your points.
Per your post, I direct you to Professor Nan Hunter’s post explaining what “generally” means.
I can answer a couple of those. All states allow 16 year old to marry with some strings. So it’s clearly not considered pedophilia. 50% of states allow 1st cousins to marry so 1/2 of the states don’t see that as incest.
What’s interesting to me is that proponents of gay marriage are comfortable with judging the morality of other lawful marriages. It’s either ironic or hypocrisy or both.
Thanks for the kinder gentler version of the reply.
You know, the entire reason I began following you on Twitter and reading your blog was because someone whom I admire- someone nearly as “predictable” as me, you might say- raved about how brilliant you were.
And you are.
And you could conceivably have one of the most important, sought after blogs in the LGBTQ blogosphere in a nanosecond. You possess expertise in an area of the law the is relevant to millions of lives, and you have the ability to communicate that knowledge in such a way to cause even “predictable” halfwits such as myself to challenge my assumptions.
I began my post by stating “I am not a lawyer”. Why? Because you raised some thought-provoking substantive issues that I, *as a non-lawyer*, would never have otherwise considered. Your post and the Salon article piqued my interest. I even went out of my way to say that if I misunderstood your premise, then my subsequent conjectures would be moot. And while I was clearly skeptical about Obama’s motives despite your post, your explanation re: why the use of those cases was likely not indicative of an effort to draw an intentional parallel between same sex marriage and incest was quite compelling. Compelling enough, in fact, that it caused me to rethink what I thought I already *knew* and to write a lengthy post a 3am (after being awake for almost 48 hours traveling to care for a convelescing friend whom I will be driving to the hospital- a 3 hour drive, mind you- in less than 3 hours) on your blog to learn more about what you were trying to say and to point out areas where I either (a) didn’t fully understand your reasoning (not because it was faulty- but b/c I AM NOT A LAWYER -all caps, just for you) or (b) perceived a contradiction or inconsistency and was curious if my perception was correct or not.
Well,fuck me for taking an interest in what you had to say.
I hope you’ll forgive me for having the temerity to engage with you. Clearly the curiosity and interest you aroused within me and my subsequent questions were beneath you. I won’t waste your time by bothering to read and comment on your blog.
Those were lawful marriages that you’re judging.
1) Loving v. Virginia isn’t controlling since homosexuality isn’t a suspect class.
2) What cases?
3) 50% of states allow 1st cousins to marry but the “ewwww” is a judgment that proponents of gay marriage shouldn’t be making should we? All states allow 16 year olds to marry. And yes, since it’s the law, that’s exactly true – the federal government does not recognize those marriages.
The DOMA is an assault on the GLBT community and arguments in the brief that claimed otherwise were laughable but the case citations were routine.
Was the DOJ comparing gay people to the KKK by citing Church of American Knights of the Ku Klux Klan v. Kerik?
Was the DOJ comparing gay people to people who can salmon when they cited Alaska Packers Association v. Industrial Accident Commission?
Well one could easily say that Aravosis has destroyed any credibility he had as an attorney and that would probably be more accurate unless you were elected head of the Gay Community or something.
PS. As an attorney it’s clear to me that there have been no crushing replies. No one has laid a hand on his arguments.
I think they do when you are using them for purely comparative purposes. This is not just Aravosis, and we should stop pretending it is. Lambda Legal and Gay & Lesbian Advocates & Defenders agree that the arguments made in the brief were offensive, and it isn’t like either of those groups are on the fringe.
Christopher M,
Actually, Lambda Legal cited that case about the 16-year-old that y’all are so outraged by as ZOMG COMPARED TO PEDOPHILES in one of their own briefs as a precedent in their favor. (http://data.lambdalegal.org/pdf/252.pdf)
Seriously, if y’all are going to be offended by case citations, you’d better retroactively edit all those court decisions and briefs in favor of gay rights that cited these exact same cases. Lawyers cite the cases that help their argument. Stop stressing over the cases and address the argument. Of course, that would require people to admit that what offends them (understandably) is the argument, not the case citations.
I would, but then I’d have to give back all the wedding gifts my partner and I have been getting, and I love the ice cream maker way too much!
When do you think it would be appropriate for the Gay community to start expecting action on some of their issues? Next year, when the nation is gearing up for midterms and nobody wants to touch “controversial” issues? How ’bout the year after that when the 2012 presidential campaign kicks off? Certainly don’t want to tie that stone around the president’s neck then do we? So I guess they should wait until his next term, if he has one. But then, there come those pesky mid-term elections again. And then the new presidential campaign.
Maybe they should just wait until there are NO wars, foreign or domestic, no recession, or financial downturn of any kind. No political turmoil. No crisis in the Middle East. No disease and famine in Africa. No earthquakes, hurricanes, tornados or droughts. Oh, and global warming, we certainly can’t tackle gay rights until we reverse global warming…
Yeah, the second we take care of all of these other “more important” issues…THEN would be the perfect time to consider pushing for gay rights.
Loving v. Virginia is good law, but it’s irrelevant to a discussion of Full Faith & Credit because LOVING NEVER MENTIONS FULL FAITH & CREDIT. Loving is based wholly upon the 14th Amendment. I wish that people would read the goddamn cases before being all, “Why didn’t they cite this?”
Jay, I seriously don’t think it’s worthwhile for any of us to try to deliver half a semester’s worth of con law — which is what understanding this brief requires, given that it implicates standing, federalism, FFC, levels of scrutiny, suspect classifications, etc. — to people who are not discussing this in good faith. (By “good faith,” I mean willingness to learn rather than a pre-set determination to be offended.)
Aravosis is a lawyer. His reasoning on those points is just wrong not inflated. He’s shown that he is not to be trusted when it comes to legal issues.
A judge isn’t going to care about the hyperbole. This is going to be won in the courts or the states not in Congress. Lies harm the cause not help it.
Except Aravosis claimed to be analyzing a brief — a legal document. If he is incompetent to perform such analysis because he never takes off his activist hat and puts on a lawyer hat, then he shouldn’t claim to be describing the brief. He has successfully misled thousands of laymen and at least one Congressman (Frank), who then had to go back and re-state his position once he’d read the brief himself instead of relying on the activist’s take. If Aravosis believes that he is not obligated to be accurate about a legal document, then perhaps he should stop telling others what the document says and means.
This is a 100+ comment thread consisting in large part of pro-SSM, anti-DOMA lawyers — trying to undo the harm Aravosis’s inflated statements have done to people’s understanding of the brief. In his self-interested desire to increase hits and donations to his site, he’s gotten people distracted from what matters — pressing for SSM as a constitutional right — and into absurd digressions about what cases are acceptable for citation, whether Mormons should be allowed to work at the DOJ on matters like these, etc. If this is your example of good work by an activist, then I’m less confident than I once was that we would have nationwide SSM by 2016, because that confidence was based on the assumption that gay activists would keep their eyes on the ball.
You’re missing the point Chris. The point is not legal but political — Obama promised us to be fierce and he is a nonactor for us until this week.
This is where it comes from and I get it. Imagine if the DOJ Civil Rights Division had filed in support of some anti-Latino/AA/etc law in the same way…
Is John being entirely rational? No. Is that appropriate? Probably.
So it’s okay to compare my marriage to incestuous pedophilia, as long as it’s only in one sentence? This comparison is such an odious, dehumanizing, and tired old trope that the mere mention of it enrages generations of gay activists. I’m not sure what’s so difficult to understand about why it’s supremely offensive.
PG,
Couldn’t reply above re Loving and con law but you’re right. It’s clear that non-lawyers have decided that Aravosis, being a lawyer, must be right since he said what they wanted to hear and nothing will change that.
It’s unfortunate though because it takes the focus off of the areas where the DOJ arguments are truly weak.
You seem to misunderstand. The point of the string cite was cases where marriages in one jurisdiction were not allowed in another. The type of marriage was irrelevant for that particular point.
Garrr… but the brief *DOES NOT* compare anything to incest or pedophilia! Did you read this and bother to try and comprehend it?
If the “mere mention” enrages gay activists, why did Lambda Legal cite that same case in a brief?
“Citation does not imply moral equivalency between the parties.”
YES! Thank you.
Read the NYT editorial again. John distorts that editorial when he says that it agrees with him. The editorial says:
As I wrote at the time: The NYT editorial “found a way to punt on the debate within the LGBT legal community about whether Justice should have filed any brief.”
Look, Aravosis asserted that the administration was comparing gay marriage to incest and pedophilia. Geidner says, not so much.
Re-reading the sections that he’s excerpted, and knowing that Obama supports the decision in the Loving v. Virginia case, it does appear to me that there are certain types of marriages that are controversial yet still should be recognized by the federal government and enforced nationwide regardless of state law, and others where the federal government should defer to the states (like cases of consanguinuity or age of consent, in starker terms incest and ephebophilia).
Obama places our marriages in the latter camp, not the former, so it’s fair to say that he is comparing us with incestuous or pedophiliac (to use the colloquial understanding, not the clinical one) relationships.
PG, Aravosis isn’t the one comparing your grandfather to a pedophiliac–he is just pointing out that Obama has effectively done that. Which, all jargon aside, he has done.
Did anyone here even read this brief? It explicitly states that DOMA is not discriminatory!! Which is exactly the term Obama used to sum up DOMA the other day–discriminatory!
Jesus has a word for people like that–hypocrite.
The brief is, to coin a term, an abomination. DOMA is prima facie unconstitutional. Any representation to the contrary, from any corner, is political posturing, not good law.
Thanks, Grimwig, for the very intelligent comments.
That’s a pretty big jump to just matter-of-factly claim that it IS unconstitutional. Nonetheless, you and the commenter who follows illustrate my point better than I could have: legal analysis does not begin with a conclusion from which to be worked backward (i.e., DOMA is bad, let’s work backwards from there to make the law fit that feeling). Rather, you analyze it and determine its constitutionality based on the legal merits, not on your personal feelings.
Both of you commenters have claimed it is unconstitutional, but have not made one argument as to why it is so. At least, in acknowledging that Obama would only be able to refuse to enforce the law on a constitutional basis, you admit that Aravosis’ analysis was disingenuous at best and completely dishonest at worst (the fact that he completely left out the constitutional part of that equation).
I guess my truth is your lies or is it my lies your truth.
Thanks for attempting to bring reason into the discussion. IANAL, and I’ve tried to read case law and got bogged down in technicality, so I appreciate the demystification.
That said, it seems to me the strongest argument against DOMA is the Full Faith and Credit clause. How was it applied in the cases cited in the brief, that they were nevertheless decided in favor of states denying marriages valid on other states? The classic example I recall is the driver’s license, which if issued in one state is valid in all. Catalano wouldn’t be a strong connection, as I don’t think FF&C was meant to apply to foreign contries [unless we have a treaty with Italy governing the recognition of marriages]. In Wilkins v Zelichowski, was the underage female allowed to seek annulment [as I understand the NJ law to allow] – this would imply to me the marriage was recognized as valid, or would be were it not contested, though the right of a party to contest was also valid – or did NJ effectively annul the marriage with this decision? Were the couple still married in Indiana? Finally, I can see Arizona’s right to prohibit marriage of first cousins within their borders, but would not FF&C require that state to recognize a marriage valid in NM? How did that decision pass constitutional muster? Yes, I know there have been some bad decisions, but what exactly did the court say in asserting FF&C did not require the recognition of the marriage in Mortenson?
Except that it’s not the president’s call whether a law is unconstitutional when there are arguments to be made on both sides; it’s the courts’ call. President Bush signed campaign finance reform explicitly saying that he didn’t think the law was entirely constitutional, but he still sent the DOJ to defend it when its constitutionality was challenged. After all the complaints about a politicized DOJ, why is it OK for Obama to refuse to defend a law’s constitutionality?
Except the DOJ never used the word pedophilia. The brief says that marriages of 16-year-olds without the consent of parents are legal in some states but not others. I am not at all offended by that statement. I wasn’t offended when Lambda Legal cited the exact same case.
A comparison that Lamda Legal also made.
If there’s an inevitable “ick” factor connection in comparing SSM to 16 year olds’ marriages, why is it OK for Lambda Legal to do it?
Because it is not a law that unconstitutionally encroaches on the power of the Executive. Even where the president is personally skeptical of the constitutionality of a statute — as Bush was about the Bipartisan Campaign Reform Act (McCain-Feingold) — he sends the DOJ to defend it (as Bush did in McConnell v. FEC).
Thanks for your smartass comment about my use of caps.
That really hurts my feelings-OUCH!- and shows your superior commenting skills. I bow down to you, good sir.
It’s because of Americablog and similar blogs that the Obama administration is beginning to pay a little attention. They have done a tremendous job in advancing our agenda. You haven’t and that makes you so jealous.
I put it in a parenthetical, and, yes, it was snarky. Sorry to hurt your feelings.
As to the rest, I actually think that voices rising with intelligence and concern for facts are far better than voices screaming without concern for fact.
Michael, Lambda Legal has cited many of the same cases in a New Jersey case. My question; how many of these hyperbolic charges originate from people who never supported Obama to begin with? I’m the only white gay male I know who supported Obama as a first choice.
Alot of the rhetoric I hear seems to come from sore Hillary losers.