This diary tackles the very narrow issue of whether the Obama Administration brief in support of the Defense of Marriage Act (DOMA) compared gay marriage to incest. Despite the fact that Rachel Maddow, the Human Rights Campaign, and the New York Times have all joined the chorus of voices who are ignorantly making this claim, as a lawyer who writes appellate briefs all the time, I can tell you absolutely and unequivocally it did not make any such comparison. I do not take on, in this diary, the larger issue of whether or not the Obama Admin. should have defended DOMA at all. While, I also am frustrated that most of my liberal allies are also displaying their ignorance of the legal system in there arguments against this action, the issue is not nearly as clear cut as the one I am addressing here, which is simply debunking the widely disseminated claim that the Obama Admin. compared gay marriage to incest.
Before the predictable comments calling me a homophobe for telling the truth about this begin, I want to let you all know where I stand on the issue. Unlike President Obama, I am a "fierce advocate" for equality for GLBT people. I am not gay myself, but my brother is. He is part of one of the 13,000 or so couples whose marriage remains legal in California after Prop. 8. If somebody compared my brother's relationship to incest in front of me, I would be hard-pressed to restrain myself from punching them in the face. I donated money to the campaign to defeat Prop. 8 and I use my Facebook page to constantly advocate and argue for marriage equality. My feeling is that anyone who is opposed to gay marriage is simply a bigot. The petty concern over the definition of a word or an institution should pale in comparison to the pain that this discrimination causes, to anyone who has a heart. That said, I want my side to be armed with the truth and not be as guilty of spreading misinformation as the other side. So here goes:
The quote from the brief that everyone is pointing to is this:
The courts have followed this principle, moreover, in relation to the validity of marriages performed in other States. Both the First and Second Restatements of Conflict 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 § 284.5 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").
Any attorney who writes appellate briefs will tell you that the only thing this paragraph says is that there is a history of cases where states have refused to recognize certain types of marriages that were considered valid in other states. What follows is a citation to those cases and parentheticals about what they were about. As an appellate attorney, I use parentheticals, such as these, all the time. It is how you tell the reviewing court what the other cases are about. It is not a comparison of those cases to your case, it is simply a courtesy to the court, explaining what those cases were about.
The point being made here is that there have been prior cases where courts have ruled that one state does not have to recognize a marriage recognized by another state. Unfortunately, those cases happened to involve incest and underage marriage. That does not make this, by any means, a comparison of gay marriage to incest or underage marriage. It just simply is not true.
This is not a question of opinion, where reasonable minds can differ. It is an outright, black and white, objective fact that the brief made no such comparison. The fact that such thoughtful and brilliant people as Rachel Maddow got this wrong greatly disturbs me. Don't these people check anything out before going public? A simple consultation with an appellate attorney would reveal that this is a typical parenthetical and not a comparison of any sort. It is an appellate lawyer's job to include these parentheticals, no matter what the case says. It is not advocacy for any type of comparison between the subjects of the cases cited and the subjects of the instant case.
I may follow tomorrow with a longer diary on whether the Obama Admin. should have been more like the Bush Admin. and used it's political ideals to tell the Justice Department which laws to defend and which not to. I can see valid arguments on either side, but they are not the arguments that most of the public commentators are making. So stay tuned for that if you are interested in this topic.
I look forward to the day when all of these arguments are behind us and the denial of marriage rights to same sex couples is looked at as an ugly stain on the history of our nation akin to denial of the vote to women and blacks.
Update: Some of the comments have rightly pointed out that there is some sort of comparison going on here. I should have been more clear in the original: There is something of a legal comparison here, but not a moral equivalency. The brief compares a states legal (not moral) right to reject another state's same sex marriage with a states legal (not moral) right to reject another state's marriage between relatives, etc. What Maddow, NYT, HRC, and others are doing is conflating a legal comparison (which is totally inoffensive) with a moral equivalency (which would be extremely offensive). So when I say there is no comparison being made, what I really mean is there is no moral equivalency being made. Thanks for pointing that out and I hope this clarification helps.