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Correcting the record on the crazy criticism that the DoJ brief compared s/s marriage to “pedophilia and incest” | Hunter of Justice

Correcting the record on the crazy criticism that the DoJ brief compared s/s marriage to “pedophilia and incest”

by on June 28, 2009  •  In DoMA

Big HT to Chris Geidner at Law Dork, who takes on the irresponsible attacks, led by John Aravosis, that accuse the DoJ brief in Smelt of comparing same-sex marriage to pedophilia and incest. Following is the detailed response that has been lacking:

John continues to write about “pedophilia” … despite the fact that 16-year-old whose marriage was invalidated in the case cited in the brief — Wilkins v. Zelichowski, 140 A.2d 65, 67-68 (N.J. 1958) — would today have reached the age of consent, if not the age at which a marriage would be found to be valid, in 32 states <http://en.wikipedia.org/wiki/Ages_of_consent_in_North_America#State_laws>… .  Moreover, as pointed out by PG in comments to the earlier post, this case was cited by none other than Lambda Legal in one of its own briefs <http://data.lambdalegal.org/pdf/252.pdf>  — for the same purpose it was cited in the Smelt brief.  The LGBT equality legal group wrote:

Conventional choice of law and comity principles are routinely applied in every state to address non-uniformity in many aspects of domestic relations laws, including disparities among states in the requirements for marriages or their dissolution.  See, e.g., Wilkins v. Zelichowski, 26 N.J. 370, 377-78 (1958).  These familiar legal tools, not the deprivation of the constitutional rights of a minority, offer the answer to any purported concern about uniformity with other states.

That John continues to write about “incest” is, as I have stated since the brief was filed, overstating facts in order to enrage.  One of the cases cited, Catalano v. Catalano, 170 A.2d 726, 728-29 (Conn. 1961), is a regularly cited case in Family Law casebooks and law review articles regarding out-of-state marriage recognition.  For John, a lawyer, to repeatedly state that a lawyer citing a regularly cited case for a general proposition that “certain marriages performed elsewhere need not be given effect, because they conflicted with the public policy of the forum” equates to the lawyer comparing same-sex marriages to incest is dishonest.  John knows that the brief is analogizing a state’s policy against recognizing one type of marriage to a state’s policy against recognizing another type of marriages.  Though a slight distinction, John knows that, as a lawyer, such distinctions matter.

The final case cited, In re Mortenson’s Estate, 316 P.2d 1106 (Ariz. 1957), is one with which I was unfamiliar but have found that both it and Catalano were cited by a Columbuia Law Review piece criticizing DOMA for “deep flaws in both aspects of the Act.”  Scott Ruskay-Kidd, Note, “The Defense of Marriage Act and the Overextension of Congressional Authority,” 97 Colum. L. Rev. 1435 (1997).  If opponents of DOMA have cited both of these cases since the year after its passage, then — as John knows — it would be bad-faith for a lawyer charged with defending the law to fail to raise arguments in its defense that previously have been raised even by opponents of the law.  Was this third case cite necessary?  Probably not, as the point was illustrasted by Catalano.  But to demonize the author of the brief and everyone on up to the President as comparing same-sex relationships to incest for doing so, as John has done repeatedly, is exceptionally unfair and dramatically overstates the proposition advanced in the brief.

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One Response to Correcting the record on the crazy criticism that the DoJ brief compared s/s marriage to “pedophilia and incest”

  1. Darren Hutchinson June 28, 2009 at 12:25 PM

    I thought it I was the only one who thought that critiques of the legal arguments were over the top. The basic point is that full faith and credit clause has exceptions. The underlying facts do not even matter, from my perspective.

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