Marriage Act debate criticizes legal precedent

A panel presented TED-talk style speeches on of free speech in the media followed by a discussion. FILE PHOTO / THE FLAT HAT

The debate scheduled for Thursday afternoon at the Marshall-Wythe School of Law on the constitutionality of the Defense of Marriage Act abruptly became a single-sided affair.

According to members of the College of William and Mary Federalist Society responsible for organizing the debate, law professor Jim Dwyer was supposed to argue for the unconstitutionality of the Act but was unable to appear. That left Jordan Lorence, senior counsel and senior vice president of the Alliance Defending Freedom organization, to make his case before a packed lecture hall.

Overwhelmingly passed by Congress and signed into law by former President Bill Clinton in 1996, the Defense of Marriage Act defined marriage as a “legal union between one man and one woman.” The Act has been criticized as a violation of equal protection laws, while preventing same-sex couples from qualifying for government programs such as employment benefits and hospital visitation rights. The act further allows states without same-sex marriage legalization laws to refuse to recognize legal marriages of same-sex couples from other states.

“I think that a lot of the arguments that are being made against federal DoMA are essentially public policy arguments,” Lorence said. “I think that it should be worked out by the public policy process, lobbying Congress and electing members of Congress … rather than converting this into a constitutional argument that’s essentially this non-sequitur syllogism.”

Lorence pointed out that the politicization of Section 3 of DoMA has led the Department of Justice under the Obama administration to enforce all the Act’s provisions while simultaneously refusing to defend the same provisions in federal court, requiring congressional lawyers to step in.

“I think it was an irresponsible act for this reason. They’re setting a precedent,” Lorence said. “Let’s say Gov. [Mitt] Romney is elected president in this election in November, and he says, ‘Oh, our Justice Department is going to follow the precedent of the Obama administration, and even though a law was passed by Congress and signed into law, we’re not going to defend that when we can have this lame argument that there’s ‘no basis to defend it in court.’ … They’re setting up a principle where the president and the DOJ can decide not to defend a law they don’t like.”

Lorence also argued that many cultures and societies around the world have defined the institution of marriage similarly and that the U.S. government’s passage of DoMA and definition of marriage is necessary to establish clear guidelines for the legal practicalities that families face.

Lorence did not address critiques of the act that charge it as discriminatory until the question-and-answer session. A law student identifying himself as a former U.S. military officer asked Lorence why federal law should deny spousal benefits to homosexual soldiers under his command.

“These people, whether it’s a choice or it’s some immutable characteristic and they can’t make another choice, are denied rights that I have … and to me, there’s a fundamental sense of unfairness,” he said.

In response, Lorence argued that loosening the definition of marriage to accommodate sexual orientation could easily be used to approve polygamy and other types of relationships without legal bounds.

“I think instead of marriage equality, you’re talking about something more [like] marriage deconstruction or marriage chaos, and that to choose marriage [is] something up to you and who are we to judge … and that marriage is up for grabs … If the right is to marry the person of my choice, why is it limited to one person?” Lorence said.


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