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'Marriage Equality' and The Power of Words in Law

BY ARI EZRA WALDMAN

Lawyers are trained to choose their words carefully; so, too, are politicians, psychologists, and journalists, to name just a few. Actors? Not so much. But, the words we all use matter, whether we choose them carefully or arrogantly throw caution to the wind, because our rhetoric may help determine success or failure at the ballot, before a judge, or in the court of public opinion. The most important words in the gay rights movement today are the words we use to win the right to marry.

MarriageThere is no shortage of applicable terms: Civil marriage, marriage equality, same-sex marriage, gay marriage, and, for that matter, marriage. Is so-called "gay marriage" distinct from opposite-sex marriage, "traditional" marriage, or marriage? Are we seeking recognition that our unions are worthy of the term "marriage" or are we seeking the liberty to love whom we want? Do we want the government to leave us alone or do we want the state to solemnize our union with as much zeal as it does our heterosexual neighbors?

The chattering classes have a preferred term: marriage equality. But, for lawyers, this phrase insufficiently captures the extent of our case for marriage rights under the Constitution. (For politicians and those seeking to sway the public's more pliable hearts and minds, the term has greater merit.) AFTER THE JUMP, I will argue that the fight for marriage is less about liberty than it is about equality, and even more about a yearning for social recognition of the moral worth of homosexuality. The phrase "marriage equality" is too rights-focused to fully reflect that reality.

CONTINUED, AFTER THE JUMP...

Some ground rules: First, the scope of this column is limited to the courtroom, where legal advocates are making the argument that laws and constitutional amendments that limit marriage to man-woman unions are unconstitutional.

Tv_olsonMy argument does not refer to politicians or lobbyists trying to persuade lawmakers to pass pro-gay legislation. I am not qualified to assess the merit of political rhetoric; I will leave that to experts like my friend Nick, who will soon be getting a Masters degree in political communications. Second, my view that the term "marriage equality" is insufficient for making our constitutional case does not deprive the phrase of all value. It will always be a powerful rallying cry and uniformity of rhetoric has its merits. In fact, if the entire gay rights movement adopts and uses "marriage equality," I concede that any objections I have make little difference.

With respect to gay people and the institution of civil marriage, a state has three options: It can (1) allow both same-sex marriages and opposite-sex marriages, (2) allow opposite-sex marriages, but not same-sex marriages, and (3) not allow any civil marriages, which is to say, get out of the marriage business entirely and leave marriage to private, religious institutions. Technically, the state has a fourth option -- to allow same-sex marriages, but ban opposite-sex marriages -- but, that is neither a viable nor even a good option. We want option (1), but "marriage equality" doesn't get us there. It get us only to option (3).

The phrase "marriage equality" reflects our focus on the right to marry, or that the liberty to determine your own intimate relationships extends just as much to gay people as it does to straight people. That may be true, but if the case for calling gay unions "marriage" begins and ends with the freedom to love free of government intervention, then there is no legal impediment to extending that argument to other unions. Of course, that is not our argument. We argue that there is something special about gay unions, just like there is something special about opposite sex unions, and very much unlike polygamous unions.

Marriage cases like Perry v. Brown argue that laws like Prop 8, California's opposite sex marriage provision, violate the Constitution's Due Process and Equal Protection clauses. In addition to showing that the freedom to marry is essential and sacrosanct in American jurisprudence (the Due Process argument) and that gay couples are just like straight couples (the Equal Protection argument), gay advocates have to argue that the state's reasons for its discriminatory laws are illegitimate. The term "marriage equality" accurately reflects the first part, but misses the second.

Gay_familyStates have argued that one-man-one-woman marriage laws promote the preferred setting for procreation, foster the creation of the supposedly optimal setting for child rearing, reflect natural law and historic tradition, and a host of other objectives. Lawyers representing gay plaintiffs in Perry and in Goodridge v. Department of Health, the Massachusetts gay marriage decision, put forth evidence to show that gay parents are great parents, that children of gay parents grow up to be just as successful as children of straight parents, that bans on gay marriage do not promote opposite-sex marriages, that calling a gay union a "civil union" is insufficient, and that the term "marriage" is the only acceptable term given the intangible (and tangible) importance attached to that word.

These points are not about the liberty to love or the right to be left alone. They are about the moral worth of gay unions and, more specifically, they argue that gay people, gay unions, and homosexuality, in general, are worthy of the same recognition as straight people, straight unions, and heterosexuality in our society. In other words, gay people want the government to recognize the social value of gay people entering into gay unions, or that we should have the right to marry because we make great parents, because our children grow up successful, because banning gay marriage does not make more opposite sex marriages, because we can only validate our unions with the term "marriage."

In fact, the entire fight for "marriage" cannot be about liberty, freedom, or simple individual rights alone. There has to be something more, something special about the term "marriage," and something special about our quest for marriage recognition, or else the separate-but-equal institution of civil unions would be sufficient.

Rather than only seeking the right to marry as an end in itself, we are seeking marriage rights because with those rights comes the social recognition that we and our unions are of the same value to society as our straight friends. Seeing the debate this way has at least three advantages:

Prop8First, this is the conservative case for calling gay unions marriages. As a term, "marriage equality" is about rights, liberty, freedom, and equality, all important progressive values. But, couching our fight in terms that preach to the choir does little to persuade the undecided. Our fight is partly about equality, but it is also about the state's seal of approval, our departure from the fringes of society, and the stability and assimilating benefits of the institution of marriage.

Second, it is honest. Lawyers can argue about the changing history of the substantive due process right to marry as divorced from natural procreation, but we have to admit that none of those cases involved gay couples. In her opinion in Goodridge, Chief Justice Marshall of the Massachusetts Supreme Judicial Court admitted that her majority opinion mandating gay inclusion in the institution of marriage would change the state's traditional definition of the term. But, that's ok. The institution of marriage has changed over time, and it changed because of a combination of factors: evolving concepts of liberty and the (overdue) growing value of women, African Americans, and others in our society.

Third, it reflects the legal case for marriage. It is one thing to argue for a right to marry; it is another thing to argue that the state should recognize that right because it has no reason not to.

If "marriage equality" gets us halfway there, "marriage recognition" gets us to the finish line. As a rallying cry in a speech, "marriage equality" works, but it does not accurately reflect the entirety of our legal case.

What term do you think works best?

This column is the first in a series addressing the language of the LGBT rights movement.

***

Ari Ezra Waldman is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. After practicing in New York for five years and clerking at a federal appellate court in Washington, D.C., Ari is now on the faculty at California Western School of Law in San Diego, California. His research focuses on gay rights and the First Amendment. Ari will be writing weekly posts on law and various LGBT issues.

Follow Ari on Twitter at @ariezrawaldman.

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Comments

  1. i use the term marriage equality. the term 'gay marriage' pushes my buttons slightly for some reason. if i can gay marry then can i gay park my car? do i go gay grocery shopping? if you will excuse me i have to go gay walk the dogs.

    Posted by: psgoodguy | Feb 1, 2012 1:08:03 PM


  2. I don't think "marriage recognition" makes any sense if we can't get married. You can't recognize something that doesn't exist. I've had discussions about this with fellow (straight) editors, and they've all said that the progression from gay marriage to same-sex marriage to marriage equality was a wise one.

    Few people want to say that they're opposed to equality. But the fact is, everyone knows what we want. The semantics are the sticking point; it's the bigotry.

    Posted by: Paul R | Feb 1, 2012 1:12:20 PM


  3. Umm, the semantics aren't the sticking point.

    Posted by: Paul R | Feb 1, 2012 1:13:16 PM


  4. I don't know what the point of arguing about what the best way to frame the issue among lawyers and judges is. Very few people have the competence to comment on that. Few of us are part of the legal process, nor do many of us understand it fully. However, we are all part of the political process, so we all might reasonably comment on political communication.

    That said, I like "marriage recognition" because it recognizes that on some level we are "already married", that we function as married couples. Something we've known for decades and our friends and family have come to know in many instances, which is a huge reason why support is increasing so quickly.

    Posted by: Chris Gable | Feb 1, 2012 1:14:18 PM


  5. PS: It also allows people who are uncomfortable on some level a sort half-measure. I "recognize" your marriage though I don't like it/agree with it/am not happy about it/don't really think it is a marriage on some level. That's a good thing. Let them have a valve to blow off steam/get used to it, if it doesn't impinge on us legally. I've often thought that that is the next formulation of President Obama on this issue. I recognize the civil marriages/civil right to marry but from a religious perspective I believe marriage is between a man and a woman. We need more than ever to stress the differences people hold in the various definitions of religious marriage and "civil marriage".

    Posted by: Chris Gable | Feb 1, 2012 1:22:02 PM


  6. Ari - very handsomely said, an example (much needed on this site) of fine English usage in both structure and tone. " Marriage equality" makes the most sense to me. Thank you.

    Posted by: uffda | Feb 1, 2012 1:22:22 PM


  7. Splitting the semantic hair.

    Posted by: CarlottaVonFunkenhowzer | Feb 1, 2012 1:45:16 PM


  8. On a gut level, I don't think "marriage recognition" equates to anything of the common sense mind. Um, there already IS marriage recognition.

    Are you proposing we say "Gay Marriage Recognition?" That's a mouthful, and - as is one of the salient points with the phrase "marriage equality" - it's best to take the "gay" out of it, and therefore refrain from implying the gays want something different or "special." (My two cents, anyway)

    Posted by: Zlick | Feb 1, 2012 1:45:41 PM


  9. Why is "Marriage" not good enough for Gay folk but it's good enough for Hetero folk? I am not in the least concerned about societal acceptance of me or my relationships. Who are THEY that I should care. I want Equal rights under the law. Call it marriage. Clean simple to the point.

    Posted by: Sargon Bighorn | Feb 1, 2012 2:11:03 PM


  10. How very ironic! While emphasizing how carefully lawyers choose their words, the author lets slip "throw no caution to the wind." Surely he meant to say "throw caution to the wind."

    Posted by: scott | Feb 1, 2012 2:16:54 PM


  11. It's a little like when black Americans decided they wanted to be called "Afro-Americans" and then "African-Americans." Any of those were fine with me, and I was happy to use whatever more suited the times, in the opinion of those best-suited to have one. In this case, that person is you, Ari, so "marriage recognition" it is.

    Posted by: Jack | Feb 1, 2012 2:21:45 PM


  12. Marriage Equality says it all. We are simply asking to be treated equally under the law. We want the same benefits that others have when they enter into the same contracts with their partners.

    You kind of lose credibility when you say that one of the only options is to "get out of the marriage business entirely and leave marriage to private, religious institutions."

    Marriage predates religious institutions. Marriages can and do take place without religious institutions all the time. It is government that gives permission to priests and pastors to perform marriages....not the other way around. Why on earth would we "leave marriage to private, religious institutions" when they have never had ownership rights to begin with and are not the only places where one may tie the knot? Hello?

    Posted by: nope | Feb 1, 2012 5:11:24 PM


  13. I had hoped you would have convinced me otherwise but I found your argument lacking and more confused.
    Merely sounds like a trick question and not the essence of the issue.
    I do not see how marriage equality is preaching to the choir.
    Equal Civil Rights.
    As fir getting the state out of marriage how about rather get the state out of giving religious figures authority over civil matters.

    Posted by: MCnNYC | Feb 1, 2012 6:29:24 PM


  14. Initially, I found your argument thoroughly unpersuasive. To me, law blurs into politics and politics blur into law. I see the law's development as remarkably political, albeit in a measured and limited fashion. Further, to insist that politics and law are two properly distinct subject areas seems to wrongfully and unhelpfully presuppose that the Supreme Court is not an independent branch of government, called on to "make" law in limited situations as required to uphold the Constitution.

    Considering the above commenters' parallel distaste for poopooing "marriage equality" as a term, it strikes me that you might have left out a more practical argument to shifting the debate (even politically) to "marriage recognition":

    Now that more and more states have been recognizing marriages between same-sex couples as equal to opposite-sex couples, isn't it about time that the federal government recognizes all marriages? And isn't it about time that, say, Mississipi, recognizes all marriages from New York or Iowa under the full faith and credit required by the Constitution?

    Thus, "marriage recognition" as the next-stage central legal term.


    Perhaps stressing "marriage recognition" instead of "marriage equality" properly pressupposes proper equal recognition of same-sex marriages and opposite-sex marriages under the equal protection clause?

    If so, "marriage recognition" does seem the preferred term in a courtroom assessing whether the equal protection clause properly requires legal recognition of marriages between two people of the same sex.

    But if these various arguments for the use of "marriage recognition" in a legal setting truly have merit, they seem to me to have just as much merit in political discourse on the topic.

    Politically--just as much as legally--a mere casual insistence that slaves were the equals of their "owners" arguably did little. No, mere assertions of equality did not restore fundamental rights wrongly denied. Instead, it took Mr. Lincoln's order that "the executive government of the United States, including the military and naval authority thereof, will recognize and maintain the freedom of such persons and will do no act or acts to repress such persons."

    So, I like it, Mr. Ari...the shift to "marriage recognition," not mere "marriage equality." It's bolder, and properly claims and demands more. It's also not without precedent in this context legally:

    http://harvardcrcl.org/2011/08/26/practical-realities-force-recognition-of-same-sex-couples-rights/

    Perhaps the rhetorical force of "marriage recognition" that you emphasize will transform even more purely political discourse. Despite your protests, I wager that it may already be doing so. Anyone disagree?

    Posted by: just_a_guy | Feb 1, 2012 8:00:12 PM


  15. Marriage recognition is redundant when applied to states recognition of full faith and credit that's a given and that's hardly something to fight or donate money for.
    Sorry but marriage may be legal jargon but hardly a rallying cry for a majority or winning hearts and minds.
    Its nerdy and a losing battle cry hardly inspiring and unrecognizable to the general public. It would fail PR wise and sounds "pc".
    Sounds like u are pushing a personal meme with a losing traction. Why change course?
    Unconvincing and losing argument in the court of public opinion.
    Sounds like a ambitious law school thesis put out to look "smart".
    It may have some technical appeal but hardly hearts and minds winning staying power.

    Posted by: MCnNYC | Feb 2, 2012 12:13:02 AM



  16. @mcnnyc: thank you for your comment. You are always welcome and encouraged to disagree, but there is no need to question my motives with ridicule. Your view has merit, as do opposing views. Please respect that. Towleroad, and my posts in particular, are spaces for all, where anyone can comment and should not have to be put down by others.

    Email by Ari, Typos by iPhone.

    Posted by: Ari Ezra Waldman | Feb 2, 2012 10:34:23 AM



  17. And, mcnnyc, if you can read the post closely, you would see that I speak of marriage equality as best to win hearts and minds in the court of public opinion. But when it comes to a legal or constitutional argument, a different term may be better.

    Email by Ari, Typos by iPhone.

    Posted by: Ari Ezra Waldman | Feb 2, 2012 10:35:50 AM


  18. Ari--please respond to my question above....I would love to hear your answer.
    I will repeat for you--
    "Marriages can and do take place without religious institutions all the time. It is government that gives permission to priests and pastors to perform marriages....not the other way around. Why on earth would we "leave marriage to private, religious institutions" when they have never had ownership rights to begin with and are not the only places where one may tie the knot?"

    Posted by: nope | Feb 2, 2012 1:30:17 PM


  19. @nope: thank you for your question. your assessment of the situation is not quite accurate. the phrase "by the power vested in me by the state of" whatever does not mean that the state grants religious leaders permission to perform marriages. it means the state has given them the authority to solemnize a CIVIL marriage alongside their religious tradition. if i wanted to, i could get married under a Chupah and sign a Ketubah in front of two Orthodox Jewish witnesses and be married in the eyes of my particular denomination of Judaism. state has allowed that religious marriage to qualify as a civil marriage (as long as i get a marriage license). what i was saying in this post is that the true liberal response is for the state to get out of civil marriage altogether and leave marriage to religious institutions. but, the state has elected to hinge rights, entitlements, and obligations on CIVIL marriage. that means the state has to be involved.

    Posted by: Ari | Feb 2, 2012 1:44:37 PM


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