Tiffany Graham, professor of law and associate dean for academic affairs at the University of La Verne College of Law, presented her paper “Rethinking Section Five: Deference, Direct Regulation, and Restoring Congressional Authority to Enforce the 14th Amendment” Monday as part of the Faculty Lecture Series in the President’s Dining Room.
The lecture argued that there was a different way, besides going through the Supreme Court, to make same-sex marriage legal.
She said that by using Section Five of the 14th Amendment, Congress could rule that the laws against same-sex marriage are unconstitutional.
“It’s another avenue we can think about,” Graham said.
About nine faculty members joined together to hear Graham’s proposal.
She said Congress needs to pass a law that regulated states without getting rid of the states’ rights.
Graham said that Congress can pass this law by using Section Five of the 14th Amendment which says “Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”
Congress has the power to enforce the 14th Amendment by implementing laws as long as they are appropriate.
This means that Congress can step in and say that the mini Defense of Marriage Acts, which are laws individual states have on same-sex marriage, are unconstitutional therefore making same-sex marriage legal.
This presentation came with good timing due to the two recent Supreme Court cases that were recently held.
The two cases were Hollingsworth v. Perry, which focused on California’s Prop. 8 and United States v. Windsor, which is on the Defense of Marriage Act of 1996.
In both of these cases the Supreme Court regretted taking the cases.
Due to the lack of support from the Supreme Court, Graham makes a solution that can be brought up at any time.
“We just have to go back to how it was before,” Graham said.
Graham discussed the history of Section Five and how the Supreme Court and Congress have disputed over whether the laws Congress made were appropriate.
One example she gave was in 1970, when Congress made an extension of the Voting Rights Act of 1965 that required the voting age to be 18 in all federal, state and local elections.
Graham discussed “baby DOMAs,” which is her reference to mini DOMAs.
Mini DOMAs are the laws that each state holds towards same sex marriage. This is important because at the moment 44 states have laws in place for same-sex marriage.
“I thought it was a very interesting topic,” said Lisa Freeman, a visiting professor of law at College of Law.
“I think it’s very creative and I think it’s exciting to have a professor at the University of La Verne thinking about problems in new ways.”
“It was well thought out,” said Al Clark, associate vice president for academic affairs. “She presented it in a way where attorneys and the general educated public can understand.”
But Clark said that it would be difficult to give his opinion on the topic because it is complicated and would be like giving his opinion on a complicated math equation.
Graham felt that her presentation was too technical and some of the concepts lost a few audience members.
“I usually have my law students prepared before we get into such technical topics,” Graham said.
Graham explained that she tried to make it easy to understand for those who have not taken law classes but it was difficult to turn such a complicated topic into something simple.
“I was impressed by the language and also the way she applied Section Five of the 14th Amendment to cases of same sex marriages,” Clark said.
After her presentation Graham opened the floor for questions. One audience member asked why the government is even involved with marriage and Graham answered that it was mainly due to custody and financial arrangements.
Graham said that it would be easy to show that same sex marriage rights have been violated but it would be hard identify a history and pattern of unconstitutional discrimination against the LGBT community.
Erica Maurice can be reached at email@example.com.