Wednesday, July 1, 2009

Taking Issue with Aravosis

John Aravosis at Americablog broke the story about the DOMA brief from DoJ and the comparisons in it to underage or blood marriages. He's been baying full-throated on this topic for some time.

But is he right? Lawdork's Chris Geidner says no.
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.

Now, Geidner is not a fan of the brief, which he calls "offensive". But he considers AmericaBlog's language to be inaccurate and needlessly inflammatory.

Look, it seems clear to me that the Obama White House is not going to move on GLBT issues easily. They are going to try to keep us quiet, and placate our community (which means divide it, sadly easy to do). As reported by Pam's House Blend, our pushback is important because they want to silence us. But, the nature of the pushback matters . I argue that we are dealing with subtle and smart people. We have to be smart back. Our voices will be silenced if we are over the top or inaccurate--we can't be crying "wolf". We have to be cold, calculated, and correct. Aravosis has a bully pulpit, but he needs to use it carefully. There's enough wrong with what they're doing that we shoudn't undercut ourselves with inaccurate accusations.

I have learned a lot from this episode. I continue to find Aravosis a provocative blogger who is very plugged in and has great information. But I now more actively seek corroborating detail and context from other bloggers, like Pams House Blend, conservative Andrew Sullivan, and Lawdork . There's a list of these and other "Pro-gay marriage" bloggers in the sidebar. There are also news and advocacy sites like The New Civil Rights Movement and The Advocate. These and others are listed in the sidebar under "Information and Advocacy".

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