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.”)

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.

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.

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.