Sunday, June 21, 2009

No, Obama Did Not Compare Gay Marriage To Incest and Pedophilia

The Holy Prepuce is as much of a pro-gay-marriage lefty as the rest of you, and was just as disappointed that the Obama administration chose to defend the constitutionality of the federal Defense of Marriage Act (DOMA) in court. So it is only out of loving concern that I say unto you: people, let's dial back on the shrill and intellectually dishonest talking points. No, the government did not "compare [gay] love to incest and pedophilia" (Salon), "invoke[] incest and people marrying children" (Americablog), or "compar[e] [U.S. Rep. Jared Polis's] loving relationship with [his] partner, Marlon, to incest."

I, too, was outraged that the Change-Master-in-Chief had authorized such retrograde libel until (unlike, I suspect, many of the pundits) I actually sat down and read the brief. The language at issue responds to the argument that Section 2 of DOMA, exempting states from recognizing same-sex marriages performed elsewhere, violates Article IV, Sec. 1 of the U.S. Constitution, which requires that "full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state."

The brief answers this contention in part as follows:
Both the First and Second Restatement of Conflicts of Laws recognize that State courts may refuse to give effect to a marriage, or to certain incidents of a marriage, that contravene the forum State's policy. See Restatement (First) of Conflict of Laws § 134; Restatement (Second) of Conflict of Laws § 134. 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").
As far as I can tell, the only comparison being drawn here is that all three restrictions on whom one may marry (opposite sex, over a particular age, beyond a certain degree of consanguinity) are questions of "policy." A state's requirement that your spouse be someone of the opposite sex may be bad policy, but it is certainly a policy. The brief is not suggesting any moral equivalence between gay marriage and marriage to relatives or minors. Nor is it terribly obvious how there could be even an implicit comparison, as it would be of no relevance to the narrow point being made.

And even if the government were suggesting such a comparison, describing at least two of these cases as being about "pedophilia" or "incest" is a little overblown. Marriage at age 16 is permitted with parental consent in the majority of U.S. states, and for all we know from this brief, the groom in Wilkins may have been no older than the bride. Marriage between first cousins, while icky and perhaps "incestuous" from a genetic standpoint, is commonplace in many cultures and indeed perfectly legal in about half of the United States. Certainly it is not what most people are referring to when they talk about "incest." I will grant you that marriage between an uncle and a niece, as in Catalano, would be widely condemned in the U.S. today, but again, the brief is not saying that gay marriage is morally comparable to uncle/niece marriage.

So while I'm squinting hard between the lines for the subtext where the Obama administration suggests that gays only want to marry so they can move into to your cul-de-sac and molest their children while yours watch, I'm just not buying that it's there. There are so many legitimate reasons to dislike this brief that we don't need to be inventing more.

This is why no one ever invites me to appear on MSNBC.


  1. Unless I am very much mistaken, Pedophelia is sexual attraction to someone who has not yet reached sexual physical maturity.
    So no, marrying a 16-yr old is probably not pedophelia absent gross malnutrition, though it may be illegal, as you say, as a matter of policy.

    The Post had an interesting article about this with the point that since the DOJ could just oppose on pretty irrefutable standing grounds why bother with the policy argument at all?

  2. hey! my name is a link now! :)

  3. There you go, looking for actual facts and other such crazy things. I'm glad you worked 'consanguinity' into your post, though, since it is one of my favorite words.

  4. (The following comment exchange occurred on the Facebook page belonging to Holy Prepuce's secret identity.)


    You give Obama and the DOJ more credit than I (and most LGBTs) do. The problem, [Holy Prepuce], is that even if we accept that this wasn't a direct comparison, and even if we very appropriately allow for the legitimacy and integrity of the nontraditional marriages in the cases cited, we all know that this was a classic "dog whistle"---language that, by conscious design or not, reflects and reaffirms some of the nastiest insults hurled by bigots about gay marriage. The authors of the brief might have used this same argument, substituting interracial marriage in the 1960s (considered every bit as non-traditional and objectionable as the other examples by many states at the time), to demonstrate the fundamental injustice of DOMA. Instead, they gave a nod to the homophobes by tapping into one of their favorite arguments in a marginally semantically defensible way---and no one on either side of the issue missed the significance.

    Hey, sorry I missed (and haven't yet had time to return) your call)...!


    [Facebook Friend #1], I don't know you, but WELL PUT!


    Offered not as a refutation of your post---just as a fair approximation of how I'm feeling these days.

    Hi [Facebook Friend #2]! Thanks!


    well I can understand the position that it can hinge on policy determinations in the states and such determinations may be bad policy, but that only gets you so far. As [Facebook Friend #1] pointed out, banning interracial marriages was a matter of policy.

    So DOJ could have done one of 3 things:

    1 - ignore it and just have it tossed on their totally rock solid ... Read Morestanding grounds.

    2 - Make a "states can make policy decisions" argument but site cases where states made policy decisions that have been universally panned as bad policy (don't think they could have gone as far as citing cases upholding bans on interracial marriage though). This would have served to give lip service while really forwarding the Pres' stated goal of repealing DOMA

    3 - make the same tired arguments that claim prohibiting gays from marrying each other is on the same level as prohibiting people of a certain age from marrying or prohibiting people of a certain consanguinity from marrying.

    (HP's response to follow.)

  5. (HP's Response to the Above)

    [Facebook Friend #2]-- everyone should know [Facebook Friend #1], as far as I'm concerned.

    With respect to your points, though, [Facebook Friend #1], five things:

    (1) There are blatantly anti-gay aspects to this brief much more clearly intentional than this one, yet this is the one getting all the press attention. That feeds directly into the stereotype of liberals as being reflexive parrots of talking points who don't actually stop to check our facts or think through the consequences of what we're saying. Furthermore, it undermines our credibility with respect to what I think are the legitimate objections to the brief, and suggests to people who might be sitting on the fence that we are not intellectually serious about any of this.

    (2) Your “dog whistle” point is well taken, although, to be fair, once the administration chose to defend the constitutionality of the statute (a decision I have stated I dislike), it didn’t really have a lot of choices as to how to address the full-faith-and-credit argument. The prior cases about non-recognition of out-of-state marriages are pretty much all going to deal with age and consanguinity, because, other than race – discussed below – these are the only policy-based marriage restrictions that are going to differ from state to state.

    So while it’s possible that the authors of the brief consciously chose these cases as a signal to the good ol’ (straight) boy judges, or to the country as a whole, that the plaintiffs should lose because gays are all perverts, I think it more likely that they selected these cases because there weren’t a lot of others to choose from on this point.

    (3) I actually think the “just substitute interracial marriage and see how it reads” argument you & [Facebook Friend #3] raise, while absolutely applicable to the (quite separate) Equal Protection and Due Process arguments in the brief, doesn’t apply to the Full Faith & Credit section in which these cases are cited. The reason why in Loving v. Virginia (1967) Virginia couldn’t constitutionally prosecute the Lovings for living together as man and wife was NOT because the Full Faith & Credit clause required recognition of their valid District of Columbia marriage. Rather, it was because the prosecutions violated the Equal Protection and Due Process clauses.

    Indeed, it’s not absolutely clear that a hypothetical DOMA purporting to allow state non-recognition of out-of-state interracial marriages would violate the Full Faith and Credit clause. (It would of course violate the Equal Protection and Due Process clauses.)

    ( Continues...)

  6. (HP's Response to the Above, Continued)

    (4) My #3 brings up the broader point that I don’t think the distinction I’m drawing between my interpretation of this paragraph and the one being shouted in the blogosphere is merely “semantic.” The accusation is that the brief draws an implicit comparison between the MORAL aspects of gay marriage and marriage to relative or a 16-year-old. But it seem to me that one can only accuse an author of making an implicit comparison between things where the context suggests some relevance to aspects being compared.

    If the cases were cited in the equal protection / due process sections of the government’s brief, there would be a relevant comparison--even though you and I would agree it is a specious one. The status of homosexuality--innate characteristic like race or gender in one view versus socially harmful voluntary behavior in another view--is a central issue in the analysis of whether a higher level of scrutiny must be applied to laws that discriminate against gays and lesbians. So if the government had cited Catalano in that section, then it would be fair to accuse it of drawing the implicit comparison – essentially arguing that men who want to marry their boyfriends are morally equivalent to men who want to marry their nieces, and that laws discriminating against each group should be judged with the same (low) level of scrutiny.

    But in the Full Faith and Credit section, the only relevant comparison between gay marriage and marriage to relative or a 16-year-old is the explicit one – that differing state restrictions on these marriages are “policy” as opposed to technical (e.g. whether your license application was notarized) restrictions. The question of good versus bad policy, and therefore the question of the morality of the marriages being prohibited, doesn’t enter into it.

    (5) The Americablog post you shared: I fully agree that this was one of those rare cases in which the administration should have chosen not to defend the constitutionality of a statute.

    I think that in criticizing those who take the opposite view, however, the author makes an unfair comparison when he says “I’m sure along the way, Thurgood Marshall and the NAACP were told to back off on their challenge to Topeka's segregation law.” The NAACP is a private organization, which can and should advance any defensible legal position to further the rights and interests of its constituency. The executive branch of government, on the other hand, walks a very tricky line when it starts to pick and choose which laws it will defend in court. As I said, there are rare exceptions and I think this should have been one of them. But one only has to turn the situation around to see the concern: suppose, for example, that the current heavily-Democratic congress passes sweeping abortion rights measures. If a Republican administration got in at the next election and decided not to defend those statutes we liberals would be HOWLING. And we would be just as angry, if not angrier, if this hypothetical administration adopted the middle ground that some have suggested should have been done here: write some half-assed brief not raising any arguments that might offend its core constituency. So while I disagree with Obama’s judgment here, I think it’s a bit naïve to pretend it was an easy call to make.

    I nonetheless agree with the author’s overall point that “[f]or some, the decision whether to defend or oppose DOMA is purely a legal exercise. For many of us, it's our lives.” And it’s precisely this direct impact on the core of peoples’ lives – in a way that directly implicates rights I think the Constitution protects – that makes me disagree with Obama’s judgment call.

  7. Criminy. I have got to get back to reading the comments over here more often.

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