Liars and Ghosts in the House of Congress: Frank's Ad Hominem Arguments in the Case against Doma

Article excerpt

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). …