August 30, 2013
Yesterday, I wrote about a new brief filed by the administration of Tom Corbett, the Republican governor of Pennsylvania, seeking to block a county official from issuing marriage licensee to same-sex couples. In one part of the brief, the administration compared same-sex couples to minors attempting to obtain licenses:
Had the Clerk issued marriage licenses to twelve-year-olds in violation of state law, would anyone seriously contend that each twelve-year-old has a legally enforceable ‘interest’ in his ‘license’ and is entitled to a hearing on the validity of his ‘license,’ else his due process rights be violated?”
That language has raised eyebrows in Pennsylvania and nationally, and provoked some strong responses. “Tom Corbett needs to remove every single person who signed off on this bigoted, disgusting brief from his office today,” Pennsylvania Democratic Party Chairman Jim Burn said in response to the language. In a statement, the Human Rights Campaign criticized the brief for its comparison, pointing out that children cannot give consent in the way that loving adults can.
It sounds like Corbett is feeling the heat, as Reuters and the Lehigh Valley Morning Call report:
Gov. Tom Corbett said Thursday that state lawyers made a bad analogy by likening same-sex marriage to a partnership between 12-year-olds to make the legal point neither is valid under state law.
Speaking for Corbett, who is on vacation in South Carolina, Nils Hagen-Frederiksen, spokesman for the Office of General Counsel, said the analogy was being taken out of context through a campaign of misinformation by the governors detractors. The reference to 12-year-olds was only meant to illustrate one group that is prohibited from marrying under state law, he said.
But it’s an analogy, the governor feels was inappropriate, Hagen-Frederiksen said. The governor never said it or wrote it, Hagen-Frederiksen said, but his detractors are acting like he did.
So Corbett wants to clear his name and wants the public to know, he doesn’t agree with it and he thinks it was an inappropriate analogy, Hagen-Frederiksen said.
“That’s coming form the governor’s mouth,” he said.
The legal point that Pennsylvania’s lawyers were trying to make–that individuals with invalid marriage licenses should not automatically be understood to have an interest in the courts determining the validity of their licenses–might itself not be all that controversial. The language they used to make that point, however, was very ill-advised.