Not a ‘Vendetta’

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.

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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 briefsfor 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.

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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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About the Author

Chris Geidner is the award-winning senior political & legal reporter at BuzzFeed and has written for Metro Weekly, The Atlantic Online, The American Prospect, Advocate.com, Salon and other publications, as well as at his blog, Law Dork. He has appeared regularly on television commenting on current affairs, including MSNBC, PBS, HLN & Current. 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 here, and you can follow him on Twitter.