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Did the DOJ Brief Compare Same-Sex Marriage to Incest and Pedophilia?

Jim Burroway

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 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::

  1. Can a married couple who are legally married in one state demand benefits from another state? Section 2 of DOMA currently prohibits this.
  2. 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.

No comparison
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.)

Offensive Nevertheless
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.

Comments

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Ben in Oakland
June 22nd, 2009 | LINK

A great analysis, Jim. It all goes back to what i have said repeatedly:

ANY man and ANY woman who have $75 for a marriage license, who APPEAR to be legally eligibile for marriage, and who do not give a clerk and reason to think that they are not eligible, can get married. Moreover, that marriage will be recognized as valid in any state, provided they do not give someone a reason to think that they are not eligible to be married under the laws of that state.

That means that the much vaunted fears of incest and pedophilia that allegedly will be the consequences of gay marriage are in fact legally possible right now in 44 states, and have been forever, but only for heterosexuals.

If a man can marry a woman, why not his sister, who is a woman, or two or three women? The answer is that as long as he does not give a clerk, or the world at large, a reason to think that the woman is his sister, or that he may already be legally married…

well, he can.

Once again, if this is happening at all, and apparently it is, heterosexuals behave badly, and gay people are assigned the blame or the responsibility or the consequences.

Can you say scapegoat?

Larry
June 22nd, 2009 | LINK

I think this is what happened. President Obama allowed his DOJ to defend DOMA without any real guidance to implement the President’s policy toward the law. He may have even told them to vigorously defend it while it’s still the law. DOJ, with a Mormon on staff, then proceeded to do just that. Now, if President Obama tries to admonish DOJ for what they did, the Mormons will claim religious discrimination, since their guy in the Justice Department was trying to do the best he could to defend the law, drawing upon Mormon arguments against marriage equality. So Obama is between a rock and a hard place: The gays are mad because of the brief, and if he criticizes it the religious right will make hay out of it.

Pender
June 22nd, 2009 | LINK

I’m with Aravosis on this one — and yes, I’m a real lawyer, and yes, I’ve read the relevant sections of the brief. The brief makes two legal analogies, one to a case saying that states may refuse to recognize foreign incestuous marriages, and another saying that states may refuse to recognize foreign pedophilic marriages. Therefore (!) it may refuse to recognize same-sex marriages between unrelated adults. Why? Because, like incest and pedophilia, same-sex relations may legitimately be against state policy.

That analogy requires the reader to say, yes, same-sex marriages have enough in common with incestuous marriages to warrant treatment under the same rule — so yes, state policy can legitimately resist same-sex marriage just as it can incestuous marriage.

No, the brief never says in so many words that same-sex marriage is “just like” or “equivalent to” incest, but analogies function by assuming that sufficient similarity between the qualities of two things that the similarity of the outcome should follow.

I don’t think this particular hill is worth dying on, especially since (as you note) the brief is offensive for many other reasons as well, but I do think Aravosis’s reading is at least one legitimate reading of the brief.

John
June 22nd, 2009 | LINK

Jim,

Ultimately the DOJ brief says that discrimination against same sex couples is allowable, because states are allowed not to recognize marriages that involve the underaged or those who are too closely related.

When the DOJ invokes the “too closely related” exception, the public thinks of incest, and ultimately these laws originated from concerns about inbreeding and general disgust for marrying those who are closely related. So even if it doesn’t rise to the level of meeting some strict definition of incest, that is the subject ultimately on the table.

As for the issue of justifying discrimination against same sex marriages by trotting out the under aged exception, they are pressing the hot button issue of comparing homosexuality to pedophilia. While I realize that marriage age of consent laws vary, there are differences between pedophilia and pederasty, and some of these laws are designed to keep two 17 year olds from marrying as much as it is to discourage a 45 year old and a 15 year old from getting married. But in our society, you cannot talk about same sex marriage and someone underaged getting married without invoking the homosexuality/pedophilia comparison. It is a poison of our culture that anyone growing up in this country would be aware of. You could not invoke these cases without knowing you are pushing these extremely offensive positions.

It is interesting that polygamy was not thrown into this brief.

I think it is very appropriate for gay Americans to find this brief very offensive. I also think that it is very appropriate for gay Americans to demand that comparison’s of marriage equality to laws against marrying those who are too young or too closely related is absolutely unacceptable and will be met by extremely hostile political fallout.

This issue can of course be nuanced to death, but ultimately in our culture when marriage equality is compared to cases involving the lack of recognition of marriages of the too young or too closely related, it is a pretty straight forward, extremely offensive pushing of hot buttons of extreme hate against gay Americans.

Also, the DOJ would be a heck of a lot more careful about pushing these hot buttons in presenting a case that involved Hispanics, Asians, African Americans, Mormons, Jews or any of a number of other groups. We deserve at least that much respect.

Sorry for the rant. This brief and the underlying betrayal really angered me, and we have the Massachussetts case coming. God help the Obama Administration’s relationship with gay Americans, if they “stay the course.”

Jim Burroway
June 22nd, 2009 | LINK

Again, I would ask that you go back to the brief. It does not make an analogy between same-sex marriage and incestuous ones. It does not make “comparison’s of marriage equality to laws against marrying those who are too young or too closely related.” There is simply no compare-and-contrast statement in the entire brief. I challenge anyone, lawyer or no, to show me where that compare/contrast statement exists. By the way, I see that lawyer Chris Geidner at Law Dork couldn’t find one either.

What it does do is describe the many different ways that marriage is regulated in this country. Right now, they are regulated on only three parameters: gender, age and kinship. So of course polygamy wasn’t mentioned; all 50 states and territories agree on that. Same with race.

CPT_Doom
June 22nd, 2009 | LINK

I agree with Jim that there are arguments far more offensive, and far more potentially damaging to the cause of LGBT rights in general, not just in terms of equal marriage, in the brief. However, the lack of a compare/contrast statement does not automatically negate the comparison argument, and Pender has the reason.

Jim points out the brief details the three ways the state can regulate marriage – by consent (which would include regulating marriage among the severely mentally retarded as well as juveniles), by closeness of relationship and by gender. However, we know from Loving v. Virginia that the Supreme Court has ruled that arbitrary characteristics such as race or religion cannot be used to regulate marriage – there has to be a compelling state interest in the regulation.

By bringing up the incestuous and the under-age marriages, the brief implicitly makes the argument there is also a compelling state interest in regulating marriage by gender, although as Jim points out the brief does a piss-poor job of arguing the foundation for that state interest. Nonetheless, the brief rejects the characterization of sexual orientation, or even gender, as arbitrary characteristics such as race or religion (or incarcerated status – as the Supremes have also ruled felony convictions cannot be grounds for the elimination of marriage rights). Rather there is something inherent in sexual orientation/gender that makes it as reasonable a grounds for regulation of marriage as the inability to consent or the closeness of relatives.

The really obnoxious part of this implicit comparison is that neither the age requirements nor the relationship requirements of current marriage legislation eliminate all potential partners for an individual, as the gender regulations do, nor are the requirements for participants in a marriage to be of age and not related in any way dependent on the genders of the parties involved.

Timothy Kincaid
June 22nd, 2009 | LINK

Jim,

I agree with you that the brief does not make a direct comparison of same-sex marriage to incest or pedophilia. And those who claim that such a comparison is clearly made are engaging, I believe, in a bit of hyperbole.

However, I do believe that the brief insinuates a comparison. For the following two reasons:

1. As you rightly noted, while states may choose to deny recognition of marriage from other states that are not in the policy interest of their own, in practice they do not do so.

Thus this section is less an argument on states’ rights and more an appeal to emotional objection. It raises the right of object to reasonably objectionable things (underage marriage!! marriage to a relative!!)… but in reality there are no objections.

It says “we object to other states’ underage marriage, other states’ closely related marriage, other states’ same-sex marriage… but we only enforce same-sex marriage.”

This puts me in mind of the sodomy laws that “applied to both heterosexuals and gays” but in reality were only enforced against gays. Such laws, when selectively enforced, are suspect of being discriminatory, as we are reminded in Lawrence. And any good constitutional lawyer at the DOJ would know this.

So throwing this in suggests to me a lack of honest intent. And it suggests to me that the selection of the cases was probably related to their content.

2. Catalano v. Catalano – For me, this is the smoking gun.

Catalano is entirely irrelevant to the Full Faith and Credit argument. Whether states are required to recognize the marriages of foreign nations (Italy, in this case) is not remotely related to the question as to whether the US Constitution requires Alabama to recognize marriages from Massachusetts.

So why is it here?

I suspect that the sole reason for inclusion of Catalano is due to its titillating and shocking nature. An uncle and a niece!! It’s a twofer – you have both hints at incest and intergenerational fears. It screams “child molestation”. It was just too good not to include, even though it had no legal relevance.

So, I agree that there was no direct comparison to incest or pedophilia. But the document certainly contains a lot of nudge-nudge wink-wink smirking.

Bruno
June 22nd, 2009 | LINK

I also think that the incest & pedophilia comparisons are not direct but are certainly implied. But where some may waver is that they want to say the DOJ made a *moral* comparison between homosexuality and the other two. I don’t think they did, however, the *legal* comparison is certainly strongly implied, and in general people find it offensive to compare perfectly legal sexual practices (homosexuality) with (generally) illegal ones (pedophilia and incest). Even if the strict side by side comparison isn’t there, I feel the brief writer is responsible for comparisons that can be easily insinuated, as was obviously the case here.

Rick
June 22nd, 2009 | LINK

Sorry, but simply by citing the “public policy exception” as a reason for the constitutional validity of DOMA makes the analogy. Other than same sex marriages, the only other marriages which ever run into that exception are ones between closely related couples (i.e. incest) and under aged participants (i.e. pedophilia/pederasty). In other words, the brief is saying that the states have as a legitimate public policy exception to exclude same sex marriage recognition, as they do incestuous and under aged marriages. While prohibitions on such marriages can be said to serve at the very least, a reasonable state purpose and if necessary a clear and compelling state interest. What purpose or what interest is served by lumping same sex marriages in with those other citations?

Lindoro Almaviva
June 22nd, 2009 | LINK

And yet, back in Puerto Rico, you can’t get married if you’re under 18 even if you do have your parents’ blessing.

This is not entirely accurate unless the law has changed in the last 10 years. I offer these examples as they happened around me, while I lived home (on the west part of the island)for nearly 25 years:

1. My next door neighboor was married at 17. Yes it was a shotgun wedding, but since both her parents consented, she was married.

2. A class mate of mine married at 18, in the church.

3. Another class mate of mine marrying at 16. This one is still married and a hot GILF (yes, a grandma) at 39.

4. My own brother marrying his now ex wife when she was all of 20; in the church, with me at his side as his “maid of honor” LOL!

5. i could name several others. I think the 4 above should do.

I have also checked with friends and family who are still living in the state and the only change that has been made, to our knowledge, is that some churches WILL NOT marry you until you are 18 or older. This is to prevent (at least in the catholic church) a wave of annulment requests due to lack of understanding of the vows taken.

Perun
June 22nd, 2009 | LINK

The whole debate is just stupid. These “slippery slope” arguments are dumb. Marriage is between two consenting adults. It also requires they be in a “solid state of mind”. We have such things as age of consent. This is the control mechanism. And…when a goat, duck or (insert animal of choice here) can read, understand, sign and say “I do” then we need to worry more about what those animals will do to us after what we have put them through the last few thousand years rather than joining in “holy matrimony.”

Richard Rush
June 22nd, 2009 | LINK

I think Timothy nailed it.

Isn’t a bit like someone scratching their head with a prominently displayed middle finger in full view of a crowd that includes some adversaries? While most of the crowd may not notice, the adversaries get the message, but what can they say without being labeled as having a persecution complex?

Jim Burroway
June 22nd, 2009 | LINK

Lindoro Almaviva,

Thanks for the correction. The web site I relied on wasn’t accurate for age of marriage consent in Puerto Rico. I’ve update the post accordingly, based on this information here:

http://topics.law.cornell.edu/wex/table_marriage

Age of marital consent with parental approval is still 18 for men, but it drops to 16 for women. It also appears that there is a pregnancy exemption which may apply as well.

Ambrose Thompson
June 22nd, 2009 | LINK

Your type of reporting is what everyone should aim for- honesty and truth. Thank you.

Ben in Oakland
June 22nd, 2009 | LINK

By bringing up the incestuous and the under-age marriages, the brief implicitly makes the argument there is also a compelling state interest in regulating marriage by gender, although as Jim points out the brief does a piss-poor job of arguing the foundation for that state interest. Nonetheless, the brief rejects the characterization of sexual orientation, or even gender, as arbitrary characteristics such as race or religion (or incarcerated status – as the Supremes have also ruled felony convictions cannot be grounds for the elimination of marriage rights). Rather there is something inherent in sexual orientation/gender that makes it as reasonable a grounds for regulation of marriage as the inability to consent or the closeness of relatives”

That was what I was trying to say, though in a different contect.

More importantly, you have nailed the subtext directly on its pointy little head. Once again, the assumption is made but never explicitly stated that het=good and gay=bad and of course, no where near as good, and OF COURSE it must be regulated for the good of the hetero majority.

Lindoro Almaviva
June 22nd, 2009 | LINK

Jim:

The pregnancy exception you talk about is used for shotgun weddings, still common in PR as of 10 years ago. The attitude is changing quite fast though. I know of several girls (including 2 cousins of mine, one on each side)who got pregnant and did not marry immediately, as would have been the custom up until less than 10 years ago. One of them refused to marry the father’s baby, went to school, got her doctorate and THEN married someone else.

I think the new generation of parents, some of them who were forced into marriage are challenging the rigid custom that forced them to marry too young and divorce not long afterwards.

I know for a fact that the church (at least the catholic church) is refusing to do shotgun weddings. This is also a change from the last 25 years. I also know of people who got pregnant and married in the church only to have their marriages annulled years latter citing lack of consent. Among those there is a noted musician and singer.

Glad I could help.

Jim Burroway
June 22nd, 2009 | LINK

The brief does attempt to claim that there is a compelling state interest to regulate by gender, but in those arguments, the state does not bring up age or kinship as examples of similar or equivalent compelling interests that justify regulation based on gender. Instead, that’s where they bring in other specious arguments like conserving “scarce resources” on benefits, etc.

It only discusses age and kinship in context of discussing the different definitions states apply to what is allowed. The brief goes no further than that. And, as far as I can tell, the only reason it is mentioned is because they are trying to show that Section 2 of DOMA, the section that allows states to disregard same-sex marriages performed in other states, is legal and not all that groundbreaking, by claiming that states all along have rejected other marriages performed in other states that does not meet that states’ eligibility requirements. I dispute that, of course, but that is the full extent to what the brief was arguing when it brought up kinship and age. Nothing more.

Alas, a blog » Blog Archive » Open Thread and Link Farm: More Nerds vs Jocks
June 22nd, 2009 | LINK

[…] No, the DOJ brief did not say gay relationships are like incest and pedophilia. Yes, it was offensive. […]

banshiii
June 22nd, 2009 | LINK

rock on brother.
always go with the truth.

Justin
June 23rd, 2009 | LINK

Jim, I think you are right on. Thanks for this informative post! :-)

Richard Rush
June 23rd, 2009 | LINK

While everyone debates the intent and effect of including the incest and pedophilia references in the DOJ brief, I just want to acknowledge Jim Burroway’s work on this blog post. Apart from agreeing or disagreeing with his conclusions, it was fascinating to read the amazing amount of information and analysis he presented. It’s a great example of why I read Box Turtle Bulletin every day.

PG
June 23rd, 2009 | LINK

One more bit of research:

In Baker v. Vermont (1999), the Vermont Supreme Court cited first-cousin marriages as an example of a relationship Vermont will legally recognize although some other states will not. In other words, the first state to provide marital rights (albeit under the name of civil union) to same-sex couples did so based on a court decision that “compared” SSM to first-cousin marriage. Did I miss the outrage back then from Aravosis, Ben and others who are convinced that such a citation *inherently* is offensive to gays?

Or how about Lambda Legal’s Lewis v. Harris brief, in which Lambda FAVORABLY cited exactly the same case about a 16-year-old’s marriage (Wilkins v. Zelichowski)? http://data.lambdalegal.org/pdf/252.pdf

Sorry, but given that these cases have been cited by people who are HELPING states progress toward marriage equality, I call BS on the claims that citing these cases must be inherently offensive.

Also, the religious bigotry toward Mormons is not cool. You know a specific Mormon who is a homophobe — bash him all you want. But there are Mormons who are not hostile to equality. Making assumptions about W. Scott Simpson based on his being a Mormon shows religious intolerance and prejudice.

Michelle
June 23rd, 2009 | LINK

Christ, thank you. This is what I’ve been saying, personally, but this whole meme of incest has ran rampant because everyone overreacts without actually paying attention.

Thomas Kraemer
June 24th, 2009 | LINK

One thing Jim Burroway’s analysis overlooked is the etymology of the word “incest” since when the courts ruled on interstate marriage law decades ago. I assert that the legal definitions of “incest” and “age-of-consent” in the 1950s were legally different than they are today in most states.

The famous wordsmith James Kilpatrick taught me to check out old printed editions of dictionaries to detect changes in the definition of a word over time. Multiple dictionaries printed in the 1950s and 1960s legally define “incest” as the crime of cohabitation, marriage or sexual intercourse outside of marriage, between parties who are too close in degrees of consanguinity or affinity as defined by state law. Consanguinity is a genetic or blood relationship between people, such as a mother or father and their biological son. Affinity is defined as a non-blood relationship or kinship, such as those formed through marriage, but they can include specified religious kin also.

More recent dictionaries simply define incest as sexual intercourse between parent and child or between siblings or half-siblings. The drift in the popular and legal definition of incest appears to have been driven by the Freudian psychological theories popular during the sexual revolution of the 1950s through 1960s. One of these Freudian theories said sons were made gay by an incestuous mother.

Burroway’s argument about the difference between the “age-of-consent” to sex and the lower legal age to marry in some states ignores the fact that all sex outside of marriage used to be outlawed by cohabitation, fornication, adultery and sodomy laws. State laws had no need for a redundant “age-of-consent” law until fornication was decriminalized. In fact, when Oregon eliminated these blue laws in the early 1970s, a conservative legislator successfully demanded the age-of-consent be raised to age 18. Other states chose to keep a lower age for marriage so that adolescent girls with an unplanned pregnancy could marry and not have to give birth while out-of-wedlock. Boys who refused to marry the girl they knocked up could be charged with statutory rape.

The fixed age-of-consent laws that were passed after fornication was legalized led to a new legal problem. A 19-year old college student who had consensual sex with his 17 year-old freshman girl friend could be charged with rape. The difference in age between the participants has been added in many state laws to solve this problem.

The definitions of “pedophilia” and “pederasty” are also highly variable throughout history. The American Psychiatric Association’s official DSM-IV definition of pedophilia is a sexual attraction to a prepubescent child, which they define as “generally age 13 years or younger.” A previous edition defined the age as 11 years old. Sexual attraction to adolescents by itself is not a mental disorder because ephebophilia (also called hebephilia or hebophilia) is considered common because it is often depicted in heterosexual pornography.

Pederasty most often refers to the ancient Greek practice of sex between men and adolescent boys. This is why I see John’s claim to have been referring to “pederasty” instead of “pedophilia” as being an inadequate defense.

I am almost ashamed to admit a certain glee in seeing John successfully use the same emotional political tactics that anti-gay groups have been using. Perhaps this is the only way to fight back against emotional politics. Not all voters respond to logic and reason.

Rick Jacobs, Americablog And How White Liberals Reinvented The Pitbull | RENWL
May 24th, 2010 | LINK

[…] Box Turtle Bulletin: Did the DOJ Brief Compare Same-Sex Marriage to Incest and Pedophilia? […]

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