Struggles for definition in legislative discourse: A case study of the Defense of Marriage Act, 1996

The formal procedures of a discourse theory of law promise legitimacy in the legislatures of modern constitutional democracies. These procedures, of deliberation towards general agreement and negotiation towards fair compromise, facilitate creation of a rationally motivated communicative power that forms the basis of legitimate law. In legislative situations of definitional controversy, however, where opposing parties become embroiled in a struggle over the substance of the terms of a bill, and where a majority political party forgoes rational discourse and relies, instead, upon the force of social-institutional power to pass the bill, a discourse theory of law is inadequate to the task of accounting for legitimate law. The appearance of social-institutional power in the legislature renders the theory impractical, unable to account for the creation of its own rational promise. It also raises an important question: in legislative situations of definitional controversy, how might the communicative conditions necessary for deliberation and negotiation be generated in speech? The dissertation takes up this question in relation to a case study of the congressional discourse on the politically motivated “Defense of Marriage Act” (DOMA), which foreclosed federal government recognition of same-sex couples should they be allowed to legally marry. Fashioned by a Republican leadership intent on capturing the White House and Congress, DOMA was crafted around the wedge issue of homosexuality and introduced to the legislature a few months before the upcoming elections. During the bill's consideration, participants offered competing substances of the primary terms of DOMA and failed to enact the procedures of debate or negotiation. The result was a Congress mired in controversy, and a discourse filled with charges of disrespect and meta-commentaries on the abandonment of reason. In this atmosphere of misrecognition and irrationality, three congresspersons delivered speeches that enacted and attempted to induce reciprocity in an effort to generate the communicative conditions necessary for deliberation and negotiation. Examples of rhetorical argument, the speeches constitute a warrant for a rhetorical-discourse theory of law in which rhetoric and the procedures of legislative debate and negotiation are figured in a dialectical relationship that takes neither of its poles for granted.