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.