I have no vendetta against John Aravosis or AmericaBlog. What I do have a problem with is the unfair and false statements that thousands and thousands of people who visit John’s blog see every day. There have been many times in the past two weeks when I have linked to and re-tweeted items with which I agree and want to advance on AmericaBlog, but so long as John continues to repeat misstatements in his attempt to create a false impression of what is being done right and wrong by the Obama Administration, I will continue to point out that he is doing so.
Today already, more than 30,000 people have visited his site. That’s a lot of influence. When John continues to repeat falsehoods, he is influencing the debate, yes, but not in any way that will actually help advance the cause of seeking equality for LGBT people.
Today, referencing the DOJ brief filed nearly two weeks ago in Smelt v. United States, John wrote:
Will this president apologize for comparing our community to incest and pedophilia?
He also wrote:
Will he explain why our civil rights do not matter his making an exemption – which he is in his rights to do – to the standard, but not exclsuvei [sic], practice of a president defending existing law? Why won’t he oppose DOMA in court?
These, of course, are the two points repeatedly made by John that I believe are dramatically overstated in the case of the first and false in the case of the second. These are the points that I — and many, many others — discussed in my post about “Chairman Frank and Aravosis’s Misstatements.”
I am going to go through, for the final time, my analysis of precisely why I believe this. Yes, this gets deep in the weeds, but I think it’s important to lay it all out there for those who care. Read on, if you wish. If you’re sick of this debate, this is the final post on this matter, so just come back later and Law Dork will be focusing elsewhere.
* * * * *
That John repeats the contention, without suggesting that anyone — let alone several preeminent legal scholars, from Arthur Leonard to Nan Hunter to Laurence Tribe, who write extensively in support of LGBT equality — disagrees with his contention that Obama is “in his rights” to “oppose DOMA in court,” shows that John’s purpose is not to inform but to persuade and incite, facts be damned.
That John continues to write about “pedophilia” at all despite the fact that the 16-year-old whose marriage was invalidated in the case cited in the brief — Wilkins v. Zelichowski, 140 A.2d 65, 67-68 (N.J. 1958) — would today have reached the age of consent, if not the age at which a marriage would be found to be valid, in 32 states shows that John’s desire to advance the “pedophilia” story is without any merit. Moreover, as pointed out by PG in comments to the earlier post, this case was cited by none other than Lambda Legal in one of its own briefs — for the same purpose it was cited in the Smelt brief. The LGBT equality legal group wrote:
Conventional choice of law and comity principles are routinely applied in every state to address non-uniformity in many aspects of domestic relations laws, including disparities among states in the requirements for marriages or their dissolution. See, e.g., Wilkins v. Zelichowski, 26 N.J. 370, 377-78 (1958). These familiar legal tools, not the deprivation of the constitutional rights of a minority, offer the answer to any purported concern about uniformity with other states.
That John continues to write about “incest” is, as I have stated since the brief was filed, overstating facts in order to enrage. One of the cases cited, Catalano v. Catalano, 170 A.2d 726, 728-29 (Conn. 1961), is a regularly cited case in Family Law casebooks and law review articles regarding out-of-state marriage recognition. For John, a lawyer, to repeatedly state that a lawyer citing a regularly cited case for a general proposition that “certain marriages performed elsewhere need not be given effect, because they conflicted with the public policy of the forum” equates to the lawyer comparing same-sex marriages to incest is dishonest. John knows that the brief is analogizing a state’s policy against recognizing one type of marriage to a state’s policy against recognizing another type of marriages. Though a slight distinction, John knows that, as a lawyer, such distinctions matter.
The final case cited, In re Mortenson’s Estate, 316 P.2d 1106 (Ariz. 1957), is one with which I was unfamiliar but have found that both it and Catalano were cited by a Columbia Law Review piece criticizing DOMA for “deep flaws in both aspects of the Act.” Scott Ruskay-Kidd, Note, “The Defense of Marriage Act and the Overextension of Congressional Authority,” 97 Colum. L. Rev. 1435 (1997). If opponents of DOMA have cited both of these cases since the year after its passage, then — as John knows — it would be bad-faith for a lawyer charged with defending the law to fail to raise arguments in its defense that previously have been raised even by opponents of the law. Was this third case cite necessary? Probably not, as the point was illustrasted by Catalano. But to demonize the author of the brief and everyone on up to the President as comparing same-sex relationships to incest for doing so, as John has done repeatedly, is exceptionally unfair and dramatically overstates the proposition advanced in the brief.
* * * * *
That’s about as close as I can come to synthesizing and collating the discussions, both on- and off-line, in which I’ve engaged in the nearly two weeks since the Smelt DOJ brief was filed. In that time, I have engaged in what I take as a good-faith debate about two aspects of the brief — a brief that I have called offensive — in which I believe John’s characterization is false or oversstated. John, on the other hand, acts as if there is no debate and continues to write about his views of these issues as established facts. What’s more, he attributes bad-faith or malintent to anyone — from President Obama to Chairman Barney Frank and others — who dare not to advance those misstatements and overstatements.
I am done writing about this debate because — as others have said — there are far more important things to be worried about. It’s true. To the extent John continues restating his falsehoods and overstatements going forward, I will simply link back to this post.
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Chris Geidner is the 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. 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
You don’t have to explain yourself. It is common sense. You are pointing out the foolishness.
Actually, you are doing what John claims he’s doing, only you are truthful and logical
I will take the hint and do the same, except I just have to add (since they are the two points I’ve been hammering that you didn’t include in this post, and this makes it easy for me to link back as well
:
(1) Gay, former DOJ attorney Robert Raben’s statements about the brief: Raben said there are “tiny, tiny exceptions” to that rule “when the statute is otherwise unlawful,” but added that the number of cases in which this exception has been applied are small and “you could put all of those in a thimble.” DOMA “doesn’t even come close” to fitting under these exceptions, Raben said.
(2) Baker v. Vermont, the groundbreaking 1999 decision that forced Vermont to provide marital status (albeit under the name civil union) to same-sex couples: 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.
Hopefully in the online marketplace of ideas, the careful and thoughtful work you and other blogs like Box Turtle Bulletin have done — requiring exegesis of the text, explanation of how legal analysis works, citations to other examples — will eventually be bought by more people than Aravosis’s yellow journalism.
Thanks for continually and thoughtfully pointing out how Americablog is being irresponsible. I’m glad I found this blog. More people should read it.
it’d be nice if john actually does take steps to regain his credibility, but at this point, i don’t really care.
http://bloggerinterrupted.com/2009/06/chris-geidner-debunks-field-negro-john-aravosis-utterly
I suspect the people accusing you of vendettas are projecting their following the Aravosis Vendetta against Obama — just as many of these same people followed Aravosis’ vendetta against Howard Dean.
“The enemy of my enemy is my friend”. But not with you, Chris. You are spending more time attacking members of the LGTB community regarding the degree unacceptability of the DOJ brief than you are advocating against the arguments of the brief itself. (true, age of consent does not equal pedophilia, but to argue that consanguinity is not about incest is splitting hairs) You have left me scratching my head as to why this is so important. Surely you don’t agree with the brief. You only disagree with John on two points. You stated your position, but refuse to acknowledge the vast area of agreement you have with him. You have chosen to ignore a number of other blogs that agree with Ameriblog and only attack it. Okay, it is not a vendetta”–then what is it? It certainly is NOT fierce advocacy for the LGBT community to continue harp of these degree of of incorrectness of the brief. Only you can determine what is driving you, but you certainly don’t seem to be helping. Why not just ignore John and take the DOJ brief apart piece by piece? Your time would be much better spent and then you would be a fierce advocate for the community which at the moment you are not.
great point, PG
PG, Thanks for making my point. There is only ONE post actually against the brief (and yes, I read it, good job, Chris!), but the bulk of his time and energy are spent convincing us the brief is not nearly as bad as Avarosis states. Can’t we just agree the brief sucked–rather than fight about the degree to which it offended us?
As far as Colbert, unless you work for the Comedy Network, you have no idea if Ameriblog was the actual source. AP has written about this, Robert Shrum has written about this, Pam Spalding has written about this, Andy Towle has, Daivd Mixner has, Sean Strub has too. Why do they get the free ride?
If Avarosis is the original source, he is only guilty of overstating his case. As lawyers, we all understand that overstating your case is not unethical or immoral and at times can be very effective means of persuasion. Is it so terrible that the LGBT community has taken on those who hold the power to make the changes we want?
Time and energy wasted fighting about how angry we should be is silly. I will say I appreciate Chris’ erudite and well-thought out statements, but I still think he is throwing the proverbial baby out with the bathwater. Avarois is NOT the problem for our community, the DOJ brief is. I was furious about the brief, period. The argument about whether they actually used the terminology “incest” or “pedophilia” did not incense me any more. I am sure the White House is troubled by these “incest” and “pedophilia” statements, but Chris doesn’t work for the White House, does he? Let them make their case.
It is high time we cease the inter-community argument and take on the real problem which is THE DOJ OF THE OBAMA ADMINISTRATION SUPPORTED DOMA IN A BRIEF. The White House has not back off of or apologized for this concept. It has merely repeated that it would like to repeal this legislatively which is convenient and cost no political capital. And I think we are all disappointed by that.
You’re really splitting hairs. The brief did directly use cases involving incest and pedophilia (or do you like underage marriage better?) to discredit same sex marriage. Your argument silly because if I go by it, then I shouldn’t be offended when regular people cite pedophilia, incest, and polygamy to refute same sex marriage.
Thanks for this entire discussion. I have been watching a writer like Steve Benen — who first linked to you and told me of your existence — point out how frequently a Republican/Conservative blogger has started a myth, and the whole of Right blogdom begins to quack in harmony about it. But too many people on ‘our side’ are doing the same thing with the Arevosis myths.
As for the question of the defense of DOMA brief, one thing needs to be pointed out. It is being heard by the Roberts Court. (Better the Scalia Court.)
The one danger that no one is discussing is the possibility that there could be a judgment coming down, written by Scalia — with Kennedy probably ‘concurring in the result but not the reasoning’ that in effect declares that “Marriage IS between a man and a woman” and declares unconstitutional all those state court and legislative enactments permitting gay marriage.
(Sound absurd? This is the Court who declared that innocence — proven innocence — was not grounds for overturning a conviction if there was no proven procedural error.)
And Scalia is *ahem* somewhat political — and hardly is someone cheering on Obama. If Obama’s DOJ had written a brief in opposition to DOMA, wouldn’t that have been even more of a temptation for Scalia, or Thomas, or the other “Four Horsemen of Doom” to issue just such a ruling, if Kennedy were convinceable to affirm the Constitutionality of DOMA. But by writing a weak and somewhat limited brief in favor of DOMA — as they almost had to — they may control the result more than if they’d opposed it.
A mere affirmation of DOMA is easily changeable by legislation. A declaration that gay marriage is Unconstitutional — even if absurd — would not be as easy to overturn. (And, sadly, the Four Horsemen are all young and relatively healthy. It may take years before Obama can substantially change its direction rather than merely keeping the current liberal minority steady and hoping that Kennedy comes up “Heads” more often than “Tails.”)
The only reason I care is the sheer number of online activists who think that his words are a great way to rally the troops to their causes.
The problem comes when the troops find out that the words being used to inflame them and anger them are garbage — and then they’ll turn against the people who parrot these words as if they were from God.
Please don’t stop — not when we have gay activists out there repeating Aravosis’ spiel about “the incest brief” as fact:
Perhaps you missed the entire opening and closing of this post, but the point of this was to lay out my final take on this dispute and then move on. As I concluded: “I am done writing about this debate because — as others have said — there are far more important things to be worried about. It’s true.”
As you also can see on the blog, move on I have. I was the first person to have extensive coverage on the important developments last night/this morning regarding the federal challenge to Proposition 8.
Leto,
Chris’s initial reaction to the DOJ brief was indeed a very critical “taking apart” of it. Maybe you should try reading that? Chris also repeatedly has pointed out that he agrees with Aravosis, Howard Dean and others that the brief goes too far.
Unfortunately, Aravosis has focused all the attention on supposed comparisons to incest and pedophilia (even though those words never appear in the brief, only in Aravosis’s fevered imagination; and even though the case citation in the brief have been made by Lambda Legal and the VT Supreme Court — points you don’t even try to refute).
It’s to the point that last night’s Colbert Report, being written by comedians and not by lawyers, relied on Aravosis’s take. Aravosis has made further false claims, like alleging that the DOJ changed their statement about the need to defend the statute, when in fact the DOJ used the exact same words. Why do you have a problem with others’ correcting Aravosis’s lies?
When someone is spreading misinformation for his personal gain (and I can see no other reason that Aravosis would write those untruthful, inflammatory posts and then launch a fundraising drive for his blog), he needs to be called out on it promptly and persistently by those who share his purported goal of advancing equality. For those who don’t want to regard the Obama Administration or all Mormons as “the enemy,” Aravosis isn’t necessarily making himself a friend with his attacks.
Leto,
You continue to fail to defend these statements of Aravosis’s and to base your argument on how it’s bad to have an intra-community argument. If the gay community cannot handle a debate and must march in lockstep, that’s pathetic. I believe the community is stronger than that and is fully able to progress while having some internal disagreements about tactics.
If you have no substantive defense for these statements, why is it wrong for someone for criticize them? Is this like the G.W. B.S. idea that one mustn’t criticize in a time of war — not even to point out lies? I just do not agree with such beliefs.
No single cause, no matter how just, is more important than the principle of truth, because it is only when people believe you have truth on your side that they will follow you. The more that the equality movement can be associated with bashing African-Americans, Latinos, Catholics and Mormons; the more it can be associated with exaggeration and falsehood; the less ground it can gain with those who are wavering and capable of being persuaded but who are not yet on board.
“As lawyers, we all understand that overstating your case is not unethical or immoral and at times can be very effective means of persuasion.”
(1) Actually, the kind of stuff Aravosis is doing would verge on getting him Rule 11 sanctions if he did it in litigation. He’s been repeatedly informed that the law is not what he claims it to be, yet continues to make the same claim with no attempt even to respond to those corrections. Do you find that judges are persuaded by that kind of behavior?
(2) A kitchen-sink approach of throwing all possible arguments into the brief is exactly what the DOJ did, and exactly what they’re being criticized for doing. So I’m not sure why your litigation philosophy supports Aravosis rather than his targets of attack.
(3) Strategies useful in a single case are not necessarily the tactics to employ in a political battle. This particular political battle has been fought for a long time and depends in part on the long-term credibility of those fighting it, as well as on keeping allies and coalitions together — considerations that don’t exist in litigating a particular case.
“It is high time we cease the inter-community argument and take on the real problem which is THE DOJ OF THE OBAMA ADMINISTRATION SUPPORTED DOMA IN A BRIEF. The White House has not back off of or apologized for this concept. It has merely repeated that it would like to repeal this legislatively which is convenient and cost no political capital. And I think we are all disappointed by that.”
Dude, if you’re a lawyer yet still believe Aravosis’s claim that the Executive branch is allowed to willy-nilly decide which statutes’ constitutionality to defend, and which not to defend, I have nothing else to add. Plenty of gay legal scholars, including Raben (a former DOJ attorney), have said that the DOJ was obligated to defend DOMA’s constitutionality. I cannot argue this point better than they have. You’ve evidently decided to follow Aravosis off the cliff.