LIARS AND GHOSTS IN THE HOUSE OF CONGRESS: FRANK'S AD HOMINEM ARGUMENTS IN THE CASE AGAINST DOMA.

• Author: Clarke, Lynn E.

In this essay, I look at a contentious legislative debate that took place in 1996 on the floor of the United States House of Representatives. The bill in question was the "Defense of Marriage Act" (DOMA), which sought to effect two federal provisions: (1) to define marriage as between one woman and one man, and (2) to provide for a state's ability to refuse recognition of same-sex marriages performed in another state. Rather than focusing on the debate in its entirety, however, my aim is to offer a critical analysis of one particular speech, delivered by Rep. Barney Frank near the end of a fractious hour of dispute. In it, I shall argue, Frank attempts to persuade his colleagues to vote against the proposed legislation by advancing two ad hominem attacks that reduce the credibility of pro-DOMA representatives and, in so doing, undermine their argument that DOMA is both necessary and advisable. Second, I will argue that through these two ad hominem arguments, Frank's speech works to open a space in which ther e lies the potential for the focus of debate to shift from the perceived need to defend marriage from same-sex couples towards the underlying and oft-overlooked discomfort with same-sex relationships. I end the essay with some brief reflections on the particular case study of Frank's speech, and on viewing political talk in general from the perspective of ad hominem arguments. Such a critical perspective, I suggest, brings with it the possibility of recovering a place for character (ethos) in political discourse.

Background of the Defense of Marriage Act

The appearance of the "Defense of Marriage Act" in the U.S. House of Representatives can be traced to events that took place in Hawaii in late 1990. In December of that year, three separate couples-Nina Baehr and Genora Dancel, Tammy Rodrigues and Antoinette Pregil, and Pat Lagon and Joseph Melilio (hereafter referred to as the plaintiffs)--filed applications for marriage licenses with the Department of Health (DOH) in Honolulu. [1] Acting in its official capacity under state law, the DOH denied all three of the applications on the sole grounds that the couples were of the same sex. [2]

Some six months after the applications were filed, the plaintiffs brought suit against the state of Hawaii by suing then Director of the DOH John C. Lewin in his official capacity. The suit charged that the DOH's interpretation and application of the statute relevant to marriage violated the plaintiffs' constitutional "right to privacy" and their rights to "the equal protection of the laws and due process of law" as guaranteed by the Hawaii Constitution.

In answer to the suit against the DOH, Lewin filed a motion for judgment on the pleadings in search of a court dismissal. Upon hearing the motion, the court ruled that the plaintiffs had failed to state a claim on which relief could be granted (i.e. the law did not provide the plaintiffs with a basis on which to claim a right of recovery), issued a judgment in favor of Lewin, and dismissed the case. The plaintiffs successfully appealed to the Hawaiian Supreme Court, and on May 5, 1993 the Court held that, in light of the Hawaii Constitution's equal protection clause, which explicitly prohibits discrimination on the basis of sex, the circuit court judgment was "erroneously granted." [3] The lower court judgment was vacated and the case remanded for an evidentiary hearing. In addition, the following burden was placed on the state:

HRS [ss] 572-1 [the statute pertaining to marriage in Hawaii] is presumed to be unconstitutional unless Lewin, as an agent of the State of Hawaii, can show that (a) the statute's sex-based classification is justified by compelling state interests and (b) the statute is narrowly drawn to avoid unnecessary abridgments of the applicant couples' constitutional rights. (580)

The case was scheduled to be tried on August 1, 1996. [4]

Many civil rights advocates who identify with the concerns of gay and lesbian people stood eagerly awaiting a circuit court decision in favor of same-sex marriage (Dunlap A13). They, like numerous others, saw a small probability of Lewin passing the narrow threshold of "compelling state interests." But, aware that a lengthy judicial battle lay ahead, some supporters went further to lend the plaintiffs legal and financial aid (Goldberg l:12). [5]

The expected outcome of Baehr v. Lewin also gave rise to vigorous opposition. According to the New York Times, "conservative groups" were "campaigning across the nation" to insure that, if Hawaii chose to allow same-sex couples to marry, no other state would be obliged to follow suit under the "full faith and credit" clause of the U.S. Constitution--a clause that requires states give "full faith and credit" to the "public acts, records, and judicial proceedings" of other states (Dunlap A13). [6] Furthermore, individual states were responding to the campaign calls. At this relatively early juncture in the history of Baehr v. Lewin, two states, Utah and South Dakota, had already enacted legislation prohibiting same-sex marriages, some nineteen state legislatures were in the process of considering similar measures, and Maine, Mississippi, and New Mexico had seen the proposal and subsequent death of anti-same-sex marriage bills before they could reach their respective congressional floors.

The campaign against gay marriage found its way to the U.S. Congress. On July 9, 1996, fearing that Baehr v. Lewin would lead to the recognition of same-sex marriages in Hawaii, 118 co-sponsors brought the "Defense of Marriage Act," "a bill to define and protect the institution of marriage," to the U.S. House of Representatives (United States. Cong. House. H Rept. 104-664). House debate on the bill began on July 11 and ended the following day with a 342 to 67 vote in favor of its enactment (Cong. Rec. 11-12 Jul. 1996: 7270, 7504). [7]

The ad hominem arguments I identify, analyze, and evaluate in this essay come from the portion of debate heard on July 11, 1996. This hour-long debate, entitled "Providing for Consideration of H.R. 3396, Defense of Marriage Act," was dedicated to consideration of a resolution that, if adopted, would effectively resolve the House into the "Committee of the Whole House on the State of the Union" for official consideration of the bill itself (along with two proposed amendments) (Cong. Rec. 11 Jul. 1996: 7270). Thus, the debate that day was a discourse on whether the "Act" should arrive in the Whole House at all.

The next section of the present essay begins with a description of the Defense of Marriage Act followed by a summary of the main issues in dispute on July 11. The two ad hominem arguments advanced by Frank are also identified and reconstructed for ease of analysis.

Charges of Dishonesty and Excessive Fear in the Case for DOMA

The Defense of Marriage Act (DOMA), formally introduced as "a bill to define and protect the institution of marriage," comprised two provisions: (1) it allowed that States are not required to recognize a same-sex marriage performed in another state; and (2) for the purpose of federal law, it defined "marriage" as "a legal union between one man and one woman as husband and wife," and "spouse" as "a person of the opposite sex who is a husband or wife" (United States. Cong. House. H Rept. 104-664). Thus, if the bill became public law, decisions to permit or prohibit same-sex marriage would rest in the legislatures of individual states, and any state-sanctioned gay marriage would not be recognized by the federal government.

The contentious House debate on DOMA revolved primarily around two issues: the necessity and advisability of the proposed legislation. [8] Regarding its necessity, opponents of DOMA, such as Reps. Neil Abercrombie and Jerrold Nadler, argued that the "public policy exception" to the "full faith and credit" clause of the Constitution already provides for a state's refusal to recognize same-sex marriages performed in other states (Cong. Rec. 11 Jul. 1996: 7274, 7276-77). [9] This was true, they argued, because states already have jurisdiction over definitions of marriage, and the "public policy exception" permits a state court to refuse recognition of any marriage that conflicts with a strongly held policy of that state. As such, DOMA's provision for state control of same-sex marriages was redundant and, therefore, unnecessary. Against this argument, proponents of DOMA offered that "Hawaii" was seeking "to mandate its wishes upon every other state in the Union" (7272), and that such legislation was necessary to prevent confusion and litigation (7276). Said Rep. Martin Hoke, "we are going to make it crystal clear that a state will not have to recognize a same-gender marriage if it chooses not to" (7277).

On the question of advisability, opponents of DOMA argued that the bill was ill-advised for two reasons. First, if the federal government chose to define marriage as a legal union between a man (husband) and a woman (wife), it would be furthering wrongful discrimination against gays and lesbians (7277-78). Not only would the federal government be refusing recognition of same-sex couples, it would also be excluding these committed couples from receiving health insurance, pension, and other federal marriage benefits. Such prohibition, they argued, was unjustified. Second, opponents charged that DOMA is ill-advised because it was motivated by nothing other than the political bias of Republicans who wish to divide the country in the hopes of winning the presidential election that was only four months away (7273, 7276-77). Said Rep. John Moakley, "it [DOMA] appears to be a political attempt to sling arrows at President Clinton" (7272). Rep. Patricia Schroeder was less uncertain: "this bill is absolutely nothing but a wedge issue. We are building the platform for Candidate Dole to stand on in San Diego" (7273).

Against the charge that DOMA is unjustified, advocates of DOMA...