‘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.

There 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.

My 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.

States 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:

First, 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.