Did the DOJ Brief Compare Same-Sex Marriage to Incest and Pedophilia?
June 22nd, 2009
It’s been more than a week since Americablog’s John Aravosis posted a copy of the Justice Department’s brief (PDF: 164KB/54 pages) defending the Defense of Marriage Act in the case of Smelt v United States. When I first wrote about Avarosis’ post, I objected to his claim that the brief compares same-sex marriage to incest and pedophilia. He didn’t like that, and made his feelings known in a comment accusing me of being “comfortable” with someone discussing my relationships and ” their mind suddenly goes to someone marrying an underage (legal) child.”
Aravisis also protested, “I never once mentioned pedophilia. I did, however, mention pederasty…” At the time, I suppose he might have had a point. His post didn’t actually use the word “pedophilia.” Instead, his headline screamed that the brief “[i]nvokes incest and marrying children.” That sounded to me an awful lot like pedophilia, but if he meant pederasty, then he was technically correct. But if he really meant pederasty, then why did he and fellow Americablog writer Joe Sudbay subsequently use the word “pedophilia” in just about every major post they have written on the subject since then?
The whole “Incest and pedophilia” meme has now gone viral, spreading around the blogosphere and mainstream media with very few stopping to question whether it’s really true. The line certainly grabs a lot of attention, and Avarosis’ assertion feels true to so many of us who have seen precisely this same comparison made by others throughout our struggle for equality. The claim is an old standby that we’ve seen countless time before.
The problem is, though, that when I read the brief on Friday a week ago, I didn’t see the comparison. But because so many people have taken that ball and run with it, I actually began to question myself and wonder if I really read what I thought I read. Gee, I thought, maybe I was wrong. Maybe I just missed it.
I’m a strong believer in going directly to the source material myself rather than relying on someone else’s word for it. That is, after all, the whole rationale behind this blog. So I went back and read the brief again, and I encourage you to do the same. First, download the brief (PDF: 164KB/54 pages). Go to page 1 of the brief (the eleventh page of the PDF document), and you will find this summary of what this case is all about:
This case does not call upon the Court to pass judgment, however, on the legal or moral right of same-sex couples, such as plaintiffs here, to be married. Plaintiffs are married, and their challenge to the federal Defense of Marriage Act (“DOMA”) poses a different set of questions: whether by virtue of their marital status they are constitutionally entitled to acknowledgment of their union by States that do not recognize same-sex marriage, and whether they are similarly entitled to certain federal benefits. Under the law binding on this Court, the answer to these questions must be no.
In other words, there are two questions before the court, and each question relates to one of two specific sections of the Defense of Marriage Act::
- Can a married couple who are legally married in one state demand benefits from another state? Section 2 of DOMA currently prohibits this.
- Can a married couple who are legally married in one state demand benefits from the federal government? Section 3 of DOMA currently prohibits this.
John Avarosis’ “incest and pedophilia” meme comes from the portion of the brief which was trying to answer the first question. Plaintiffs argue that DOMA’s Section 2 violates the “Full Faith and Credit” clause of the U.S. Constitution, the clause that requires states to recognize contracts entered into in other states. The DOJ argues on page 17 of the brief that there are already exceptions to that clause in contracts under certain circumstances, and that this exception already applies to marriages as well. Now read pages 17 and 18 (27th and 28th page of the PDF document) very carefully, especially this first paragraph:
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”).
Accordingly, Section 2 of DOMA hews to long-established principles in relation to the recognition of marriages performed in other States, and ensures that States may continue to rely on their own public policies to reject (or accept) requests to recognize same-sex marriages. The fact that States have long had the authority to decline to give effect to marriages performed in other States based on the forum State’s public policy strongly supports the constitutionality of Congress’s exercise of its authority in DOMA. Surely the Full Faith and Credit Clause cannot be read, in light of these established principles, to preclude a State from applying its own definition of marriage in situations involving same-sex couples, married elsewhere, who are domiciled within its own borders. That Clause clearly does not mandate such interference with “long established and still subsisting choice-of-law practices.” Sun Oil Co., 486 U.S. at 728-29.
Okay, did anyone happen to catch the sentence which says that same-sex marriage is the same as incest and pedophilia? Me neither. But John Aravosis thinks the whole first paragraph did exactly that. But pay very close attention to what this section is saying — and more importantly, what it is not saying.
The brief recognizes that different states have long had different laws regulating who can get married and who cannot. And because states already regulate marriages differently from one state to another, they are (according to the DOJ anyway) free to determine whether a marriage in one state is legal in another. And what are some of those differences? Kinship and age of consent. Let’s dive in.
Comparison to Incest?
Many states allow marriage between first cousins (New Mexico is cited in this brief), while others do not. Those that do, do not consider such marriages to be incest — it’s not in New Mexico. And in the case of Arizona, which the DOJ cites as a state that does not allow first cousins to marry, there is an exception: first cousins are allowed to marry in Arizona, as long as both are sixty-five years old or older, or if they can prove that one of them cannot reproduce. So even in Arizona, the prohibition has nothing to do with incest. If marriage between first cousins were incest, how would it magically stop being incest once both partners turn 65 or one partner become infertile?
Different jurisdictions have many different limits on kinship, and many have even provided exceptions to those limits. The DOJ brief says that very Catholic and socially-conservative Italy allows uncles to marry nieces. This is a new one on me, but if it’s true, then it means that Italy does not consider this to be incest. But guess what? Minnesota might be willing to consider uncle-niece marriages to be kosher as well. That state prohibits marriage between uncles and nieces, as well as between first cousins, “except as to marriages permitted by the established customs of aboriginal cultures.” So Caucasian nieces marrying their uncle is incestuous but Indians not? Of course not. But it does mean that if an Italian uncle-neice couple were to move to Minnesota and successfully claim to be from an “aboriginal culture” (i.e. “characteristic of or relating to people inhabiting a region from the beginning”), then their would be perfectly acceptable in Minnesota. Minnesota would not see it as incestuous.
And if Italian couples can’t claim to be aboriginal for Minnesota’s purposes, then Rhode Island can provide safe haven for at least a few of those Italian couples. That state has a similar religious exception for Jews.
But none of this has anything to do with incest. Many states have different definitions for incest verses definitions for who can marry based on kinship. Rhode Island, with its many kinship prohibitions against marriage for its non-religious Jewish residents, has nevertheless repealed its incest law in 1989. In other words, there is legally no such thing as incest in Rhode Island. New Jersey doesn’t apply any penalties for incest if both parties are over the age of 18, but they do have all sorts of restrictions on marriage regardless of age. Kentucky prohibits first cousins from marrying, but that’s not because those unions would be prosecuted under Kentucky’s incest law. That law only defines incest as sex with “an ancestor, descendant, brother, or sister” By the way, if you asked most ordinary people on the street for a definition for incest, that is probably the definition they would most likely come up with. Not the convoluted, inconsistent definitions for allowable kinships our states have come up with.
These statutes are as much about what states allow as they are about what states prohibit. Citing a litany of the many differences in the degrees kinships that states allow is not the same as invoking incest. The DOJ brief simply makes no such comparison, nor does it declare any sort of “equivalency.” It merely states, very briefly and not very completely, what the situation is right now in terms of allowable kinship.
Comparison to Pedophilia?
Age is another common restriction placed on marriage, and there are similarly wide variations on how different jurisdictions define age of consent for marriage. Most set that age of consent at 18, although you have to wait until you’re 21 to marry in Puerto Rico without parental consent. So does that mean that a Puerto Rican groom marrying a 20-year-old Puerto Rican bride in the state of New Jersey is engaging in pedophilia? Of course not. But that’s the standard you’d have to set if you wanted to claim that this brief compares same-sex marriage to incest.
What’s more, all jurisdictions allow exceptions with parental consent, with many going as low as 15 years of age. A few states allow even younger ages to marry under certain circumstances, and none of this is considered pedophilia either. California, for example, has no lower limit as long as a court goes along with it. And yet, back in Puerto Rico, if you’re a man you can’t get married if you’re under 18 even if you do have your parents’ blessing (for women, the age drops to 16 with parental consent; all bets are off if the woman is pregnant.)
Want more proof that this has little to do with pedophilia? How about this: states often set the age of consent for marriage very differently from their age of consent for sex. Where most states set the age of consent for marriage at 18, the age of sexual consent is most commonly set at 16 years if age.
And many provide for even lower ages of consent for sexual activity when the two partners are close in age. In Alaska, that age can go as low as 13 under certain circumstances. Same with Connecticut, Michigan, Minnesota, New Hampshire, New Jersey, New Mexico, North Carolina, Pennsylvania, South Dakota. In Arkansas, Louisiana and Nebraska, that limit can even go as low as the age of 12. Some states appear to have no such lower limit when the two partners are within a few years of each other (Maryland and New York, for example). But no matter how much perfectly legal, non-pedophilic sex those exceptionally young lovers may be having, they can’t get married under those states’ marriage laws.
Still not convinced that this isn’t about pedophilia? Well then how about this: in every one of those states which provide exemptions to their age of sexual consent when the two sex partners’ ages are close to each other, those exemptions completely disappear under those same states’ age of marital consent statutes. The purpose for setting an age of consent for marriage has less to do with statutory rape or pedophilia, and more to do with trying to keep young adults or teenagers from rushing into marriage when both are very young — a much more common situation than that of old geezers trying to legally take advantage of children.
Most states right now regulate marriages according to three criteria: age, kinship and gender. It’s not “equating” same-sex marriages with incest and pedophilia to simply point out that these are, right now, the three primary areas of regulation. Furthermore, pointing out the many ways in which states define allowable kinships in marriage is not “equating” same-sex marriage with incest. And describing all the ways in which different states allow people of different ages to marry is not “equating” same-sex marriage with pedophilia.
But that is all that the DOJ brief did, and as far as this particular topic is concerned, the brief stopped there. It simply described the state of the law as it is right now. Whether it is an acceptable state of the law (the DOJ apparently thinks so) or not (and I most definitely do not think it’s acceptable where same-sex marriage is concerned) is a completely different matter.
(And by the way, in case there is any confusion, I strongly disagree with the DOJ when they claim, for example, that marriages between first cousins go unrecognized in many states. They cited the case of New Mexico allowing first cousins to marry but Arizona prohibiting it. But I know for a fact that if first cousins marry in New Mexico and move to Arizona, the Arizona Department of Revenue isn’t going to bring them up on charges of perjury if they checked the “married” box on state tax returns. States do, by default and as a matter of course, recognize marriages from other states even when those marriages would not be legal in their own states. Only same-sex marriages are singled out for special scrutiny and treatment.)
Okay, so the brief doesn’t say same-sex marriage is equivalent to incest or pedophilia. Big deal. It’s still patently contemptuous of gays and lesbians even without that. For one, the DOJ lawyers seem to think that gay people, deep down, don’t really exist. How else can one explain this (page 27)?
Even viewing the right asserted here as the right of gay and lesbian couples to marry, DOMA does not directly or substantially interfere with the ability of anyone, including homosexuals, to marry the individual of his or her choice. …Hence, under DOMA, gay and lesbian couples suffer no greater interference with their ability to obtain recognition of their marriages, either in the States where they were wed, or elsewhere.
That could only be true under one condition: that homosexuals can “marry the individual of his or her choice” as long as that individual is of the opposite sex. In other words, just because I’m gay, it doesn’t mean I can’t settle down with a nice Catholic girl (or a nice religious Jewish niece if I lived in Rhode Island) and have that marriage go unchallenged virtually everywhere I go. That sort of argument is precisely the stuff we’ve heard from some of our more unhinged anti-gay opponents.
And then there’s this bit of creative “logic” on page 27-28:
…gay and lesbian individuals who unite in matrimony are denied no federal benefits to which they were entitled prior to their marriage; they remain eligible for every benefit they enjoyed beforehand. DOMA simply provides, in effect, that as a result of their same-sex marriage they will not become eligible for the set of benefits that Congress has reserved exclusively to those who are related by the bonds of heterosexual marriage.
Got that? We’re not denied anything, we’re just not allowed the extra stuff (and obligations) that heterosexual couples get when they’re married. In the eyes of the Justice Department, that’s not discrimination. Maybe women who are denied promotions aren’t discriminated against because they still have a job; they just don’t get the extra pay and perks the employer gave to a lesser-qualified man.
But even if it is discrimination, that’s okay too, according to the Department of Justice (page 2):
Thus, by defining “marriage” and “spouse” as the legal union of a man and a woman and affording federal benefits on that basis, Section 3 of DOMA simply maintained the status quo: it continues the longstanding federal policy of affording federal benefits and privileges on the basis of a centuries-old form of marriage, without committing the federal government to devote scarce resources to newer versions of the institution that any State may choose to recognize.
That’s right. Congress can choose to deny its “scarce resources” to a very tiny proportion of married couples just because it wants to. Never mind that those same married couples pay taxes just like everyone else.
It doesn’t end there. There’s so much more in this brief that’s risible, like the continual reference to a “new form of marriage,” a phrase that may as well place scare-quotes around the word “marriage” when referring to same-sex couples. And to add insult to injury, the brief then contrasts that “new form of marriage” to what it calls “traditional marriage,” which, inexplicably, is likely meant to preclude the traditional and biblical examples of brother-sister marriages, non-consensual marriages and plural marriages, although it doesn’t explicitly say so.
This brief’s contemptuous tone is breathtaking. LGBT advocates are right to denounce it and to encourage very direct and vigorous avenues of protest to make our anger known. I’m glad to see the LGBT community call Obama and the Democratic Party on the carpet for this, and I hope that many more join them.
It’s Important To Speak The Truth
I started this web site because I wanted to expose our opponents when they distort the written record. That is the driving force behind so much of what we do here at BTB. But if I see similar examples among our own advocates — including those advocates who do wonderful work otherwise — how can I remain silent?
This definitely isn’t the pathway to mega-blogger status. I’m probably going to be called self-loathing, an appeaser, an Uncle Tom or an Obama apologist — you name it. Or, just as likely, this post may be ignored. But that’s okay. I’d much rather speak the truth than repeat talking points intended solely to inflame. The “incest and pedophilia” meme is the latter, not the former, and it’s been seriously bugging me all week. There are plenty of reasons to be outraged by this DOJ brief, but no matter how you slice it, it just doesn’t say what many of our leading advocates claim it does.
I like John Aravosis a lot. He has been unparalleled in covering the ongoing developments surrounding the Obama administration’s reactions to the outrage this brief has generated. No one else has stayed on top of this story the way he has.
But it was Karl Rove who perfected the art of manufactured outrage, and it reflects poorly on us when we deploy the same tactic. If there’s anything we should have learned from the Bush administration, it’s that such behavior will weaken our position, not strengthen it. It’s time we gave it a rest and be outraged over what’s really there.