On Wednesday attorneys working for Pennsylvania, under instructions from the Governor of that state, Tom Corbett, filed a brief with the state supreme court asking the court to stop the one county official who is issuing marriage licenses to same sex couples.
As reported far and wide, the brief included this brilliant piece of legal intellectualism:
“”Had the clerk issued marriage licenses to 12-year-olds in violation of state law, would anyone seriously contend that each 12-year-old . . . is entitled to a hearing on the validity of his ‘license’?”
A lot of people have taken issue with that analogy, and on Friday the governor issued a statement that did not backpedal, but tried to explain and deflect:
… the analogy was being taken out of context through a campaign of misinformation by the governor’s 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.
Now, Corbett has only been Governor for two years, however, before that he was elected to two terms as the state Attorney General, had previously been a U.S. Attorney for many years, had served as acting state Attorney General for half a term, and spent many years before that as an assistant district attorney. One would think with all of that experience, he would have some idea how official statements about legal matters are drafted and sent to the courts, and how responsibility for what is said in them works.
But since he doesn’t seem to understand that, let me explain: Gov. Corbett, you instructed the state attorneys to file a brief, and you authorized them to file the brief on your behalf. So all of those news stories that say your administration filed it are absolutely correct. Further, even the headlines that elide over things are still accurate, because you authorized them to file the brief. It doesn’t matter whether you actually read it or not, you authorized it.
More specifically, you authorized lawyers to file a brief with the court on your behalf. As a long-time member of the legal profession, Governor, you ought to know that lawyers don’t speak to the court for themselves, they speak for their clients. As far as the legal system is concerned, you made that statement.
Your spokesperson has indicated (and emphasized by mentioning, twice, that you are away on vacation) that you hadn’t read the brief before it was submitted. If we are to believe that you didn’t read this brief which you authorized before it was submitted—a brief about what has become the civil rights issue of the decade and which is the subject of multiple political battles happening in your state right now—that calls into question your judgement, both legal and political.
The governor’s statement didn’t retract the brief. In fact, he said the logic behind the controversial statement is sound, just that the analogy is inappropriate. I could digress for some time about how argument by analogy is part of logic, but I won’t. The governor is standing by his statement arguing against marriage rights for gays and lesbians, and saying that he thinks it’s unfair that people thinks that proves he is biased.
I don’t know the governor, so I don’t know whether to believe him about not reading the brief beforehand. I strongly suspect that he at least read drafts of the brief before the final was filed. But if he didn’t, I suspect the reason he didn’t pay close attention is because he doesn’t think the matter is important. He doesn’t think the matter is important because he doesn’t think gay people (and non-gays who care about the rights of gay people) are important.
Thinking that any group’s civil rights are unimportant is a pretty strong indicator of bias, even without an “inappropriate analogy.”