DOMA Rhetorical Analysis

MR. CLEMENT: With respect, Justice Kennedy, that's not right. No State loses any benefits by recognizing same-sex marriage. Things stay the same. What they don't do is they don't sort of open up an additional class of beneficiaries under their State law for — that get additional Federal benefits. But things stay the same. And that's why in this sense -­-

JUSTICE GINSBURG: They're not — they're not a question of additional benefits. I mean, they touch every aspect of life. Your partner is sick. Social Security. I mean, it's pervasive. It's not as though, well, there's this little Federal sphere and it's only a tax question. It's — it's — as Justice Kennedy said, 1100 statutes, and it affects every area of life. And so he was really diminishing what the State has said is marriage. You're saying, no, State said two kinds of marriage; the full marriage, and then this sort of skim milk marriage.

The Supreme Court is filled with rhetoric—usually used with the intent to persuade. Mr. Clement and Justice Ginsburg are known to have different points of views on the constitutionality of DOMA, which makes the rhetoric between these two even more intriguing. Mr. Clement is making his case for the constitutionality of DOMA, while Justice Ginsburg—clearly on the liberal side—gives perspective for the other side of the argument. In this piece of argument, Justice Ginsburg is successful in using rhetorical devices to make her point regarding the unfair aspects of DOMA, while Mr. Clement’s argument falls slightly short.

Mr. Clement’s main argument throughout the court case revolves around the idea of uniformity among the states. This argument can be classified as a scare tactic logical fallacy in the sense that Clement is implying that without uniformity in marriage, we would be entering a frightening period of “unknown.” Similarly, this passage also reveals another logical fallacy on the part of Clement. Clement argues “no State loses any benefits by recognizing same-sex marriage.” This is indeed technically true, but Clement's argument has no backing. It is true, that under DOMA states are not penalized for recognizing same-sex marriage. However, this implies that all individuals engaged in these “recognized” same-sex marriages have the same federal benefits as a heterosexual couple. This is ironic because under DOMA (federal law), these individuals hardly receive any federal benefits. Therefore, there really are not any “benefits” for the states to lose in terms of these same-sex marriages. On the surface, Mr. Clement’s argument may seem plausible, but when examined closely, the logic is not there. His reliance on the idea of uniformity on the federal level, but choice on the state level just does not make sense. If federal law will take precedence at the end of the day, state law will not make much of a difference when it comes to benefits for same-sex couples.

Justice Ginsburg counters Clement with a hard-hitting and an almost humorous tone. She quickly points out that the argument has nothing to do with additional benefits for the states, and then uses an interesting mix of pathos and logos to strengthen her upcoming, sound-bite worthy metaphor. She makes the ideas being discussed personal in saying, “Your partner is sick.” But, then she quickly follows that brief hypothetical with the mention of the 1100 statutes. This mix of pathos and logos creates a persuasive argument that gives the feeling of sympathy, but leaves room for logic. Justice Ginsburg then uses “skim milk” as a metaphor for the way same-sex marriages are being treated. This metaphor gives the implication that same-sex marriages have something lacking, which she implies are the benefits given to a traditional married couple. The use of the skim milk metaphor helps to portray her overall disapproval of the current federal policies regarding same-sex marriage. With a simple comparison of same-sex marriage to skim milk, Justice Ginsburg was successful providing a strong counterargument to Clement, and establishing her own position among her fellow Supreme Court Justices.