Rep. Barney Frank, who earlier today was with the President and Senator Chris Dodd to unveil the most significant financial regulatory reform since the Great Depression, issued a statement regarding the Obama DOJ’s filing in Smelt v. U.S.
Soon thereafter, John Aravosis published a piece that just went round the bound. I have tried to keep my blog as forward-looking as possible, but it’s clear that Aravosis’s heavy popularity at his blog and media contacts have allowed his false statements about what the filing means to push the debate into the twisted, contorted view he is giving it.
The two main problems that I have with Aravosis’s coverage are:
- His continued misstatements regarding whether Justice should have filed a brief in this case.
- His “comparing us to incest and pedophilia” claim is overstated and does not withstand any serious, legal scrutiny.
First of all, it’s clear that his poisoning of the well most likely led to Chairman Frank’s misimpressions about the brief, which he said he had not read until today. (I’ll admit that I too was surprised that he hadn’t read it yet, but I have noted before that Frank is wholly dedicated to the financial reform package that he’s been working on for the past several months.) Frank said: “I made the mistake of relying on other people’s oral descriptions to me of what had been in the brief, rather than reading it first.”
So, then John falsely concludes that “Frank now thinks the brief is just super.”
Here’s what Frank actually said:
Now that I have read the brief, I believe that the administration made a conscientious and largely successful effort to avoid inappropriate rhetoric. There are some cases where I wish they had been more explicit in disavowing their view that certain arguments were correct, and to make it clear that they were talking not about their own views of these issues, but rather what was appropriate in a constitutional case with a rational basis standard – which is the one that now prevails in the federal courts, although I think it should be upgraded.
Of course, John cites to none of that in his post, which is very similar to what I’ve been writing and what Harvard Law School Professor Laurence Tribe and former Clinton Justice Department senior staffer Robert Raben have said as well.
[Read on for my reasons why Aravosis's two main memes on this DOMA brief are false and/or inflated.]
1. Continued misstatements regarding whether Justice should have filed a brief in this case.
Then, Aravosis gets into this notion that the President regularly just “goes about telling the DOJ to oppose existing law in court.” Aravosis states that Richard Socarides’s vague statement results in a factual, final reality: “It’s not debatable, it’s what actually happens in the Oval office, and it’s not illegal – it’s a fact.” Yes, it is.
Aravosis has to turn words up-side-down to create this idea. He keeps changing statements from people, which admit of times when a law can be challenged, into statements that people haven’t said, which is that Justice can “never” fail to defend an existing law. Despite Aravosis’s false statements, Justice spokespersons never said that Justice always has to uphold laws. As I pointed out, Justice has consistently said only that it “generally” must defend laws.
In addition to the statements from Tribe and Raben, Georgetown Law Professor Nan Hunter (who literally wrote the book on sexual orientation and the law), quoting extensively from Marty Lederman (Harvard Law grad from both Clinton and now Obama’s Justice Department), has looked through the “not debatable” situation of when Justice fails to defend current laws and provides a very defensible debate about why Obama’s DOJ was understanble to have defended the law.
2. “Comparing us to incest and pedophilia” claim is overstated and does not withstand any serious, legal scrutiny.
This claim has been Aravosis’s claim to fame on the brief, with him taking credit whenever anyone uses the claim.
Here’s the actual line — yes, only one sentence, and not really even a sentence but just a list of cases (called a “string cite”) after a sentence — from the brief:
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”).
These were three cases about marriages, which were valid in one jurisdiction, not being allowed under the laws of another jurisdiction. There is nothing further. The brief does not ever use the words “incest” or “pedophilia.” And, by the way, the American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition Text Revision (DSM-IV-TR), the standard for diagnosis, defines pedophilia as involving “sexual activity with a prepubescent child or children (generally age 13 years or younger).” Under that definition, there is not even a case involving pedophilia appearing in the brief at all — which is likely the reason that no mainstream publication has repeated that claim.
Despite all that, this is what Aravosis concluded this evening about Chairman Frank:
Barney thinks the language of the brief was great. He even, between the lines, defends the invocation of incest and pedophilia.
No, he clearly did not think the brief was great, as his statement made clear. Moreover, he never defended anything that isn’t in the brief, despite your constant claims to the contrary.
It is Aravosis’s spreading of this continued falsity — particularly to demean the smart, legitimate statements of members of Congress — that lead me to continued reporting about why it’s false.
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Finally, Rep. Tammy Baldwin recently told Rachel Maddow that Obama went “as far as he could go” and that the ball was now in Congress’s court. Rachel asked how to get Obama to move more quickly. Baldwin responded: “Giving him a bill to sign would be the first order of business.” So, look for Aravosis’s next contorted post on how Baldwin threw us under the bus.