(Still) not fit to be named: Moving beyond race to explain why 'separate' nomenclature for gay and straight relationships will never be 'equal'

Georgetown Law Journal

Volumn 97, Issue 5, 2009, Pages 1155-1205

  Cahill, Courtney Megan ^a  

^a ROGER WILLIAMS UNIVERSITY   (United States)

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EID: 67650999417     PISSN: 00168092     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (314)

1. See In re Marriage Cases, 183 P.3d 384 (Cal. 2008).
2. See CAL. FAM. CODE § 297 (Deering 2007) (defining and providing the requirements for establishing a domestic partnership in California). As the California Supreme Court pointed out in Marriage Cases, California's Domestic Partner Act was a near mirror image of marriage. Because the differences between those two statuses were relatively inconsequential, Judge Corrigan noted that the issue in that case was a question of "whether domestic partners have a constitutional right to the name of 'marriage.'" Marriage Cases, 183 P.3d at 468 (Corrigan, J., concurring and dissenting).
3. For a list of the minor differences between marriage and domestic partnership status, see id. at 416 n.24. The same holds true for the distinction between marriage and civil union status in Vermont, New Jersey, and New Hampshire, and for the distinction between marriage and domestic partnership status in Oregon - all states in which those two statuses are nearly identical. See infra note 36.
4. The New Jersey Supreme Court characterized the name issue as "whether committed same-sex partners have a constitutional right to define their relationship by the name of marriage, the word that historically has characterized the union of a man and a woman." Lewis v. Harris, 908 A.2d 196, 212 (N.J. 2006). Nearly ten years ago, when the push for same-sex marriage was not yet at its height, Michael Warner, a vocal critic of the same-sex marriage movement, noted that the campaign for gay , marriage has always been more about the language of marriage, or what he calls the "ancient ritual vocabulary of recognition and status, " than about the substantive benefits that flow from that legal status. MICHAEL WARNER, THE TROUBLE WITH NORMAL: SEX, POLITICS, AND THE ETHICS OF QUEER LIFE 130, 143 (1999).
5. Marriage Cases, 183 P.3d at 400.
6. I say "effectively" because the Marriage Cases court also ruled that gays and lesbians were considered a suspect class under the equality guarantees of California's constitution. See id. at 443 ("[W]e conclude that statutes imposing differential treatment on the basis of sexual orientation should be viewed as constitutionally suspect under the California Constitution's equal protection clause."). Proposition 8 did not, of course, explicitly overrule that part of the California Supreme Court's opinion. Thus, California is in the odd position of allowing the state openly to discriminate against a suspect class without having to satisfy the stringent demands of heightened judicial review.
7. See CALIFORNIA SECRETARY OF STATE, CALIFORNIA GENERAL ELECTION OFFICIAL VOTER INFORMATION GUIDE 128 (2008).
8. Jesse McKinley & Laurie Goodstein, Bans in 3 States on Gay Marriage, N.Y. TIMES, Nov. 6, 2008, at A1.
9. The American Civil Liberties Union (ACLU), Lambda Legal Defense and Education Fund, and the National Center for Lesbian Rights have collectively filed "a writ petition before the California Supreme Court... urging the court to invalidate Proposition 8" on the bases that "the initiative process was improperly used in an attempt to undo the constitution's core commitment to equality for everyone by eliminating a fundamental right from just one group - lesbian and gay Califomians" and that Proposition 8 prevents "the courts from exercising their essential constitutional role of protecting the equal protection rights of minorities." See Press Release, ACLU, Legal Groups File Lawsuit Challenging Proposition 8, Should it Pass (Nov. 7, 2008), available at http://www.aclu.org/lgbt/relationships/ 37706prs20081105.html. The California Supreme Court heard oral argument in that case, Strauss v. Horton, on March 5, 2009.
10. Opinions of the Justices to the Senate, 802 N.E.2d 565, 572 (Mass. 2004). During oral argument in Marriage Cases, Justice Chin deployed that same locution when he asked counsel for the City of San Francisco whether or not the entire issue in that case didn't "just boil down to the use of the 'm' word, " to which counsel responded, "You're right." Audio Recording of Oral Argument, In re Marriage Cases, 183 P.3d 384 (Cal. 2008) (No. S147999), www.courtinfo.ca.gov/courts/supreme/audio-arch.htm.
11. McKinley & Goodstein, supra note 7, at Al.
12. Opinions of the Justices, 802 N.E.2d at 565, 571 n.5 (finding that the name "marriage" must be extended to same-sex couples under Massachusetts' constitution and stating that "discrimination ... flows from separate nomenclature");
13. Lewis v. Harris, 908 A.2d 196, 222 (N.J. 2006) (finding that the substantive benefits of marriage must be extended to same-sex couples under New Jersey's constitution but that those couples did not have a constitutional right to the name "marriage").
14. Kerrigan v. Comm'r of Pub. Health, 957 A.2d 407 (Conn. 2008) (finding that gays and lesbians are a quasi-suspect class under the Connecticut constitution and that Connecticut's opposite-sex marriage definition violates the equal protection clause of that constitution). The Connecticut Supreme Court reversed the Connecticut Superior Court's 2006 decision finding that it was not unconstitutional for the state to extend a separate nominal status to legally-recognized same-sex couples. See Kerrigan v. State, 909 A.2d 89 (Conn. Super. Ct. 2006).
15. For media coverage of the marriage versus civil union issue in New Jersey and Connecticut (prior to the Connecticut Supreme Court's decision in Kerrigan), see Alison Leigh Cowan, Gay Couples Say Civil Unions Aren't Enough, N.Y. TIMES, Mar. 17, 2008, at B1;
16. Laura Mansnerus, Civil Union or Marriage? A Long Wait in New Jersey, N.Y. TIMES, Oct. 28, 2006, at B5;
17. All Things Considered: For Some, Civil Unions Gain Second-Class Stigma (NPR radio broadcast May 17, 2007) (transcript available at http://www.npr.org/templates/story/story.php?storyId= 10239467).
18. See William N. Eskridge, Jr., How Government Unintentionally Influences Culture (The Case of Same-Sex Marriage), 102 NW. U. L. REV. 495, 496 (2008) (referring to civil unions and other nominally separate statutory schemes as a "compromise" approach to the same-sex marriage question);
19. see also infra notes 38-39 and accompanying text.
20. Indeed, quite the contrary, given that thirty-eight states currently have mini-defense of marriage acts (or mini-DOMAs) that define marriage for state purposes as a union between a man and a woman, and that twenty-seven states have constitutional amendments banning same-sex marriage. For an ' overview of these laws and amendments, see AnDREW KOPPELMAN, SAME SEX, DIFFERENT STATES: WHEN SAME-SEX MARRIAGES CROSS STATE LINES (2006).
21. DAVID MASCI, SENIOR RESEARCH FELLOW, PEW FORUM ON RELIGION AND PUBLIC LIFE, A STABLE MAJORITY: MOST AMERICANS STILL OPPOSE SAME-SEX MARRIAGE (Apr. 1, 2008), available at http://pewforum.org/docs/?DocID=290 (stating that thirty-six percent of Americans favor allowing marriage for same-sex couples, whereas fifty-four percent of Americans favor allowing civil unions for the same).
22. During oral argument in Marriage Cases, the plaintiffs' advocates repeatedly stated to the California Supreme Court that "names matter" and that "words matter." See Audio Recording of Oral Argument, In re Marriage Cases, 183 P.3d 384 (Cal. 2008) (No. S147999), available at http://www.courtinfo.ca.gov/courts/supreme/audio-arch.htm.
23. See also Lewis v. Harris, 908 A.2d 196, 226 (N.J. 2006) (Poritz, J., dissenting) (asserting that "[w]hat we 'name' things matters, language matters").
24. See Respondents' Supplemental Brief at 32, In re Marriage Cases, 183 P.3d 384 (Cal. 2008) (No. S147999).
25. Id. at 37 (citation omitted).
26. Id. at 36.
27. For a more complete survey and discussion of the comparison between the nominal separation of gay and straight relationships (or what some advocates have referred to as "nominal segregation") and the physical separation of individuals on the basis of race, see infra notes 94-105 and accompanying text.
28. See id. (citing Brown v. Bd. of Educ, 347 U.S. 483, 495 (1954)).
29. 4 WILLIAM BLACKSTONE, COMMENTARIES *215.
30. See, e.g., Brief of the Plaintiffs-Appellants at 16-17, Kerrigan v. Comm'r of Pub. Health, 957 A.2d 407 (Conn. 2008) (No. 17716) (citing Brown, 347 U.S. at 493-94, for the proposition that "separation itself 'generates a feeling of inferiority as to ... status in the community that may affect... hearts and minds'" and Sweatt v. Painter, 339 U.S. 629, 634 (1950), for the proposition that civil unions are unequal to marriage on an intangible level even if they are equal to it in all tangible or substantive respects).
31. For a more complete discussion of the deployment of the Sweatt and Brown analogies in this context, see infra Part II.
32. LESLIE J. MORAN, THE HOMOSEXUAL(ITY) OF LAW 34 (1996) (referring to the "economy of silence" that was "generated" by the law's injunction to silence with respect to sodomy).
33. H.G. COCKS, NAMELESS OFFENCES: HOMOSEXUAL DESIRE IN THE NINETEENTH CENTURY 160 (2003).
34. See infra section III. A for a more thorough survey of the way in which same-sex sex was either, or both, elided from speech entirely or named only by a disgust-driven language of negation (an 'unnameable' crime or an 'unspeakable' offense, for example). Professor Janet Halley has argued that the law's deployment of the "unnameability trope, " the rhetorical practice of naming sodomy/ homosexuality only by unnaming it, both helped to create a "tradition of reticence" and "silence" around homosexuality and led to "definitions of homosexuality that [were] not definitions at all." Janet E. Halley, The Politics of the Closet: Towards Equal Protection for Gay, Lesbian, and Bisexual Identity, 36 UCLAL. Rev. 915, 954-55 (1989).
35. See EVE KOSOFSKY SEDGWICK, EPISTEMOLOGY OF THE CLOSET 203 (1990) [hereinafter SEDGWICK, EPISTEMOLOGY] (stating that the rhetorical practice of explicitly not naming same-sex sex/homosexuality had a "quasi-nominative, quasi-obliterative structure" because it both elided same-sex sex/homosexuality from speech and acknowledged it as an erotic possibility).
36. See supra note 9 and accompanying text.
37. SEDGWICK, EPISTEMOLOGY, supra note 26, at 68 ("[F]or many gay people [the gay closet] is still the fundamental feature of social life; and there can be few gay people, however courageous and forthright by habit, however fortunate in the support of their immediate communities, in whose lives the closet is not still a shaping presence.").
38. Respondents' Opening Brief on the Merits at 23, In re Marriage Cases, 183 P.3d 384 (Cal. 2008) (No. S147999).
39. See, e.g., Courtney Megan Cahill, The Genuine Article: A Subversive Economic Perspective on the Law's Procreationist Vision of Marriage, 64 WASH. & LEE L. REV. 393, 397 (2007) (identifying and explaining the historical antecedents of the contemporary claim that same-sex marriage warrants prohibition because it is a "counterfeit" of real marriage);
40. William N. Eskridge, Jr., No Promo Homo: The Sedimentation of Antigay Discourse and the Channeling Effect of Judicial Review, 75 N.Y.U. L. REV. 1327 (2000);
41. Reva B. Siegel, "The Rule of Love": Wife Beating as Prerogative and Privacy, 105 YALE L.J. 2117 (1996);
42. Edward L. Tulin, Note, Where Everything Old Is New Again - Enduring Episodic Discrimination Against Homosexual Persons, 84 TEX. L. REV. 1587, 1587 (2006) ("Current legal treatment of homosexuals is best understood as a new episode of discrimination, in which old paradigms combine and coalesce in novel ways.").
43. Lewis v. Harris, 908 A.2d 196, 223 (N.J. 2006) (characterizing the application of alternative nominal schemes to legally-recognized gay relationships as "new");
44. see also Kerrigan v. State, 909 A.2d 89, 98 (Conn. Super. Ct. 2006) (noting that the term civil union is "of relatively recent origin").
45. Kerrigan, 909 A.2d at 98.
46. Id. at 95.
47. Id.
48. This wonderfully rich quotation comes from Professor Martha Ertman of the University of Maryland School of Law, who used it in a talk before the Roger Williams law faculty in October 2007.
49. Currently, New Hampshire, New Jersey, and Vermont have "civil union" status for same-sex couples, and Oregon has "domestic partnership" status for the same. In these states, civil unions and domestic partnerships are the mirror image of marriage for purposes of state law. See N.H. REV. STAT. ANN. § 5-C:41 (2008);
50. N.J. STAT. ANN. § 37:1-1 (West 2007);
51. Vt. STAT. ANN. tit. 15, §§ 1201-07 (2008); 2007
52. Oregon Family Fairness Act, Or. Laws page nos. 425-27. Only same-sex couples may enter into a civil union/domestic partnership status in these states. Moreover, the District of Columbia, Hawaii, Maine, and Washington have domestic partner laws that provide a range of health care benefits and other protections to same-sex couples, but that are not the mirror image of marriage. See D.C. CODE § 32-701(3) (2006) (defining domestic partner);
53. HAW. REV. STAT. § 572C-3 to -4 (2006) (defining and providing the requirements for reciprocal beneficiary status);
54. ME. REV. STAT. ANN. tit. 18-A, § 1-201 (2006) (extending inheritance rights to domestic partners);
55. WASH. REV. CODE ANN. § 26.60.010 (West Supp. 2009). With few exceptions, only same-sex couples may enter into a domestic partnership in these states. The two exceptions are Hawaii and Washington. In Hawaii, any two adults who cannot marry under state law can enter into a reciprocal beneficiary status, and in Washington, any two individuals over the age of sixty-two, of the same or opposite sex, can enter into a domestic partnership. The name issue has been litigated only in California, Connecticut, New Jersey, and Massachusetts, those states that offer (or, in the case of California, Connecticut, and Massachusetts, that did offer or proposed offering) a status to same-sex couples that is substantively equal to marriage but nominally different from it. No court in New Hampshire, Oregon, or Vermont has considered the constitutionality of nominal distinctions between the status of "marriage" and that of "civil union/domestic partnership." Vermont was the first state to pass civil union legislation in 2000, following the Vermont Supreme Court's holding in Baker v. State that same-sex couples must be extended the same benefits and responsibilities afforded to and imposed on married opposite-sex couples under that state's constitution. Baker v. State, 744 A.2d 864, 867 (Vt. 1999). While the Baker court directly considered the issue of substantive equality for same-sex couples under the law, it never squarely considered whether the name "marriage" was also required under Vermont's constitution, explicitly refusing to rule on whether "the denial of a marriage license operates per se to deny constitutionally-protected rights." Id. at 886. Instead, it reserved that question for "some future case, " id., thereby limiting its decision to the more narrow - and, in its view, more critical - question of whether substantive equality, as opposed to substantive and nominal equality, was constitutionally required.
56. The Supreme Judicial Court of Massachusetts suggested as much in Opinions of the Justices to the Senate when it stated that "[m]aintaining a second-class citizen status for same-sex couples by excluding them from the institution of civil marriage is the constitutional infirmity at issue." Opinions of the Justices to the Senate, 802 N.E.2d 565, 571 (Mass. 2004).
57. As mentioned above, supra note 15, recent Pew Research Center surveys suggest that significantly more Americans support civil unions (or domestic partnerships) for same-sex couples than they do marriage for the same.
58. See also Joshua Lynsen, Lawmakers Debating Civil Unions, Marriage Across U.S., WASH. BLADE, Mar. 9, 2007, at 21;
59. Todd Simmons, Civi7 Compromise, THE ADVOCATE, May 24, 2005, at 17;
60. Jennifer Parker, Jersey Revives Same-Sex Marriage Debate, ABC NEWS, Feb. 19, 2007, http://abcnews.go.com/Politics/Story? id+28873429page=l (stating that while Americans might not be ready for same-sex marriage, they do "believe that same-sex couples should be granted rights and benefits")..
61. See, e.g., Michael Falcone, McCain and Obama Differ on Same-Sex Marriage Initiative, N.Y. Times, July 3, 2008, at A18 (stating that while President Barack Obama opposed Proposition 8 in California, he does not support marriage for same-sex couples but rather civil unions and domestic partnerships for the same).
62. Lewis v. Harris, 908 A.2d 196, 221 (N.J. 2006) ("Raised here is the perplexing question -'what's in a name?'").
63. In re Marriage Cases, 49 Cal. Rptr. 3d 675, 727 (Ct. App. 2006) (Parilli, J., concurring), rev'd, 183 P.3d 384 (Cal. 2008).
64. Id.;
65. see also Kerrigan v. State, 909 A.2d 89, 97 (Conn. Super. Ct. 2006), rev'd, Kerrigan v. Comm'r of Pub. Health, 957 A.2d 407 (Conn. 2008) (stating that plaintiffs' argument that same-sex couples' nominally separate institution, civil union, was "nonnormative and, thus, less privileged under the law" was "an interesting philosophical point" - although one with which the court ultimately disagreed).
66. Lewis, 908 A.2d at 221.
67. In February 2007, plaintiffs in Connecticut's marriage equality case appealed the Connecticut Superior Court's decision, finding that nominal difference was not unconstitutional, to the Connecticut Supreme Court. It was not until October 28, 2008, that Connecticut's high court rendered a decision in that case.
68. In re Marriage Cases, 183 P.3d 384, 398 (Cal. 2008).
69. Id. at 434.
70. Lewis, 908 A.2d at 222.
71. See id. (stating that to extend the name marriage to same-sex couples "would render a profound change in the public consciousness of a social institution of ancient origin").
72. See, e.g., Adams v. Howerton, 486 F. Supp. 1119, 1122 n.2 (C.D. Cal. 1980) (stating that "[t]he dictionary definition of the term 'spouse' is 'a husband or wife'"), aff'd, 673 F.2d 1036 (9th Cir. 1982);
73. Jones v. Hallahan, 501 S.W.2d 588, 589 (Ky. 1973) (citing various dictionary definitions of marriage as a union between a man and a woman);
74. Anonymous v. Anonymous, 325 N.Y.S.2d 499, 500 (Sup. Ct. 1971) ("Black's Law Dictionary furnishes three definitions of marriage, all of which recognize that it is a union or contract between a man and a woman.").
75. Adams, 486 F. Supp. at 1123.
76. See WILLIAM N. ESKRIDGE, JR., THE CASE FOR SAME-SEX MARRIAGE: FROM SEXUAL LIBERTY TO CIVILIZED COMMITMENT 89 (1996) (stating that, as of 1996, "the most popular argument to deny a right of same-sex marriage [was] definitional").
77. Most courts no longer rely on the definitional rationale in support of same-sex marriage prohibitions; indeed, the Chief Justice of the Maryland Supreme Court, which recently upheld that state's opposite-sex marriage definition, referred to that rationale as impermissibly "circular" in his dissent. Conaway v. Deane, 932 A.2d 571, 697 (Md. 2007) (Bell, C.J., dissenting) (quoting Hernandez v. Robles, 855 N.E.2d 1, 27 (N.Y. 2006) (Kaye, C.J., dissenting)). That said, some state courts have still adverted to the traditional definition of marriage in closely related contexts.
78. For instance, in Chambers v. Ormiston, the Rhode Island Supreme Court held that Rhode Island's family court could not grant a divorce to two women who were married in Massachusetts but who were residents of Rhode Island because that state's definition of "marriage" was an opposite-sex one in 1961, the year that Rhode Island's statute authorizing the family court to hear and determine all petitions for divorce was written. Chambers v. Ormiston, 935 A.2d 956, 961 (R.I. 2007).
79. 4 PLATO, CRATYLUS 7-9 (H.N. Fowler trans., Loeb Classical Library 1970). It also hearkens back, as this Article will later show, to the name taboo that surrounded homosexuality for centuries in Western society. See infra Parts III and IV.
80. Whereas Cratylus maintains that names follow naturally from the essences that they signify, Hermogenes contends that names are nothing more than a product of social convention. As one commentator has pointed out, "Socrates destabilizes both positions." Gabrielle Vom Brack & Barbara Bodenhorn, "Entangled in Histories": An Introduction to the Anthropology of Names and Naming, in THE ANTHROPOLOGY OF NAMES AND NAMING 1, 5 (Gabrielle Vom Brack & Barbara Bodenhorn eds., 2006).
81. I am referring, of course, to Juliet's soliloquy from Shakespeare's Romeo and Juliet, where the heroine muses: "What's in a name? That which we call a rose/By any other name would smell as sweet." 2 WILLIAM SHAKESPEARE, ROMEO AND JUUET act 2, sc. ii., 11. 43-44, in THE COMPLETE WORKS OF WILLIAM SHAKESPEARE (Bantam Books 1980). A dissenting justice in Opinions of the Justices to the Senate invoked this famous soliloquy in support of the proposition that "[t]he insignificance of according a different name to the same thing has long been recognized." Opinions of the Justices to the Senate, 802 N.E.2d 565, 572 n.1 (Mass. 2004) (Sosman, J., dissenting).
82. Lewis v. Harris, 908 A.2d 196 (N.J. 2006).
83. Id. at 221.
84. Id. at 220-21 (finding that "committed same-sex couples must be afforded on equal terms the same rights and benefits enjoyed by married opposite-sex couples" under "the equal protection guarantee" of New Jersey's constitution).
85. Id. at 221 ("Under our equal protection jurisprudence ... plaintiffs' claimed right to the name of marriage is surely not the same now that equal rights and benefits must be conferred on committed same-sex couples").
86. N.J. STAT. ANN. § 37:1-28 (West 2007). In this respect, New Jersey's civil union law is unlike Vermont's civil union law, which explicitly provides that "[a] party to a civil union shall be included in any definition or use of the terms 'spouse, ' 'family, ' 'immediate family, ' 'dependent, ' 'next of kin, ' or other terms that denote the spousal relationship." VT. STAT. ANN. tit. 15, § 1204 (2002).
87. Levra, 908 A.2d at 222.
88. Id. at 222-23.
89. One need not look far to find evidence pointing to the long history of same-sex relationships throughout the world, social and familial structures that are by no means new - even if, as this Article later suggests, the silence that long surrounded them makes them appear so. See, e.g., ESKRIDGE, supra note 51, at 15-51 (providing a detailed history of same-sex marriages both in and beyond the United States).
90. See generally JOHN BOSWELL, C HRISTIANITY, SOCIAL TOLERANCE, AND HOMOSEXUALITY: GAY PEOPLE IN WESTERN EUROPE FROM THE BEGINNING OF THE CHRISTIAN ERA TO THE FOURTEENTH CENTURY (1980) [hereinafter BOSWELL, CHRISTIANITY, SOCIAL TOLERANCE, AND HOMOSEXUALITY]; JOHN BOWELL, SAME-SEX UNIONS IN PREMODERN EUROPE (1994) [hereinafter BOSWELL, SAME-SEX UNIONS].
91. See infra Part IV.
92. Kerrigan v. State, 909 A.2d 89 (Conn. Super. Ct. 2006).
93. Id. at 96.
94. Id. at 95.
95. Id. at 96.
96. Id. at 98.
97. Id. at 99.
98. Brown v. Bd. of Educ, 347 U.S. 483, 493 (1954).
99. Kerrigan, 909 A.2d at 100.
100. Id. at 98.
101. See In re Marriage Cases, 183 P.3d 384 (Cal. 2008);
102. Kerrigan v. Comm'r of Pub. Health, 957 A.2d 407 (Conn. 2008);
103. Opinions of the Justices to the Senate, 802 N.E.2d 565 (Mass. 2004).
104. 798 N.E.2d 941 (Mass. 2003).
105. Opinions of the Justices, 802 N.E.2d at 566.
106. See id. at 571.
107. See id. ("Maintaining a second-class citizen status for same-sex couples by excluding them from die institution of civil marriage is the constitutional infirmity at issue.").
108. Id. at 572 (Sosman, J., dissenting).
109. Id.
110. Id. at 571 n.5 (majority opinion).
111. Id. at 569.
112. Id. at 570.
113. See id. at 580 n.6 (Sosman, J., dissenting) (stating that the majority's invocation of Brown was misplaced because "that landmark case involved a classification (and resulting separation) based on race, ... [one that] has long been recognized as a 'suspect' classification, " whereas the nominal separation between "marriage" and "civil union" involves a non-suspect classification, sexual orientation, one that warrants minimal judicial scrutiny).
114. In re Marriage Cases, 183 P.3d 384, 400-02 (Cal. 2008).
115. Id. at 402.
116. Id. at 434.
117. Id. at 445.
118. Id. at 434-35.
119. Kerrigan v. Comm'r of Pub. Health, 957 A.2d 407, 418 (Conn. 2008).
120. Id. at 418.
121. Id. at 475.
122. For instance, David Buckel, Senior Counsel and Marriage Project Director at Lambda Legal in New York, and the attorney who argued Lewis v. Harris before the New Jersey Supreme Court in 2006, has widely argued that civil unions are a flagrant example of the doctrine of "separate but equal" redux. A nominally separate institution for same-sex couples, he has contended, has the same stigmatizing effect for those excluded from "marriage" as officially separate schools had for racial minorities prior to Brown. In both instances, he has noted, "the separation 'generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely to be undone.'" David S. Buckel, Government Affixes a Label of Inferiority on Same-Sex Couples When it Imposes Civil Unions & Denies Access to Marriage, 16 STAN. L. & POL'Y REV. 73, 78 (2005) (quoting Brown v. Bd. of Educ, 347 U.S. 483, 493-94 (1954));
123. see also David S. Buckel, Lewis v. Harris: Essay on a Settled Question and an Open Question, 59 RUTGERS L. REV. 221, 226-32 (2007) (invoking the separate-but-equal analogy to describe the constitutional infirmities with civil unions);
124. John Cloud, Viewpoint: A Separate But Equal Ruling for Gay Marriage, TIME, Oct. 25, 2006, available at http://www.time.com/time/nation/article/0, 8599, 1550838, 00.html;
125. Evan Wolfson, Just Say No to Civil Union, THE STRANGER, Oct. 26, 2005, available at http://www.thestranger. com/seattle/Content?oid=23780 (stating that civil union and domestic partnership status would "take our nation, again, down the path of separate and unequal treatment for some" and "say to some couples and their kids ..., 'You come in the front, ' while telling others to go around back").
126. See Respondents' Opening Brief on the Merits at 21, In re Marriage Cases, 183 P.3d 384 (Cal. 2008) (No. S147999).
127. Sweatt v. Painter, 339 U.S. 629 (1950).
128. Id. at 633-34 ("In terms of number of the faculty, variety of courses and opportunity for specialization, size of the student body, scope of the library, availability of law review and similar activities, the University of Texas Law School is superior.").
129. Id. at 634.
130. See, e.g., Respondents' Opening Brief on the Merits at 21, In re Marriage Cases, 183 P.3d 384 (Cal. 2008) (No. S147999);
131. Brief of the Plaintiffs-Appellants at 16, Kerrigan v. Comm'r of Pub. Health, 957 A.2d 407 (Conn. 2008) (S.C. 17716) (citing Sweatt for the proposition that "[o]ur courts have fully recognized the manifest advantage that comes from an institution's longevity, tradition and prestige as compared to a new institution created solely for a minority group");
132. See supra note 36.
133. Ronald Dworkin, Three Questions For America, 53 N.Y. REV. OF BOOKS, Sept. 21, 2006, at 24, 30.
134. For a court that has cited this statement, see, for example, Kerrigan v. Comm'r of Pub. Health, 957 A.2d 407, 418 n.15 (Conn. 2008).
135. See also Dworkin, supra ("Civil union status may provide many of the legal and material benefits of marriage, but it does not provide the social and personal meaning of that institution because marriage has a spiritual dimension that civil union does not.").
136. Opinions of the Justices to the Senate, 802 N.E.2d 565, 571 n.5 (Mass. 2004).
137. Brown v. Bd. of Educ, 347 U.S. 483, 495 (1954) (emphasis added).
138. Respondents' Supplemental Brief at 27, In re Marriage Cases, 183 P.3d 384 (Cal. 2008) (No. S147999) (emphasis added).
139. Brief of the Plaintiffs-Appellants at 16-17, Kerrigan v. Comm'r of Pub. Health, 957 A.2d 407 (Conn. 2008) (No. S.C. 17716) (quoting Brown, 347 U.S. at 493-94).
140. Respondents' Opening Brief on the Merits at 23, In re Marriage Cases, 183 P.3d 384 (Cal. 2008) (No. S147999).
141. Id. (emphasis added).
142. In re Marriage Cases, 183 P.3d 384, 445 (Cal. 2008) (emphasis added). The Marriage Cases court then favorably cited the Canada Supreme Court, which, it noted, declared in a similar context that "'[o]ne factor which may demonstrate that legislation that treats a claimant differently has the effect of demeaning the claimant's dignity is the existence of pre-existing disadvantage, stereotyping, prejudice, or vulnerability experienced by the individual or group at issue.'" Id. at 445 (citing M. v. H., [1999] 2 S.C.R. 3, 54-55 (Can.)).
143. Kerrigan v. Comm'r of Pub. Health, 957 A.2d 407, 418 (Conn. 2008) (emphasis added) (internal citation omitted).
144. Respondents' Opening Brief on the Merits at 23, In re Marriage Cases, 183 P.3d 384 (Cal. 2008) (No. S147999).
145. Opinions of the Justices to the Senate, 802 N.E.2d 565, 571 n.5 (Mass. 2004).
146. Ann Rostow, Crab State Crawls Towards Equality, S.F. BAY TIMES, Dec. 7, 2006 (referring to the statement of Steven Goldstein, executive director of the New Jersey advocacy group, Garden State Equality).
147. But see Opinions of the Justices, 802 N.E.2d at 572 n.1, 573 (Sosman, J., dissenting) (citing to Juliet's "What's in a Name?" soliloquy in support of the proposition that names are "insignificant" ).
148. Audio Recording of Oral Argument, In re Marriage Cases, 183 P.3d 384 (Cal. 2008) (No. S147999), available at www.courtinfo.ca.gov/courts/ supreme/audio-arch.htm (statement of Justice Chin, California Supreme Court).
149. In re Marriage Cases, 49 Cal. Rptr. 3d 675, 721 (Ct. App. 2006), rev'd, 183 P.3d 384 (Cal. 2008).
150. Id.
151. In re Marriage Cases, 183 P.3d 384, 469 (Cal. 2008) (Corrigan, J., concurring and dissenting);
152. see also id. at 469 ("The civil rights cases banning racial discrimination were based on duly enacted amendments to the United States Constitution, proposed by Congress and ratified by the people through the states. To our nation's great shame, many individuals and governmental'entities obdurately refused to follow these constitutional imperatives for nearly a century. By overturning Jim Crow and other segregation laws, the courts properly and courageously held the people accountable to their own constitutional mandates. Here the situation is quite different.").
153. Lewis v. Harris, 908 A.2d 196, 222 (N.J. 2006).
154. The Flawed "Separate but Equal" Analogy, http.//blogs.chron. com/bluebayou/2006/10/ the-flawed-separate-but-equal.html (Oct. 26, 2006).
155. Jasmyne A. Cannick, Editorial, The Gay/Black Divide, L.A. TIMES, NOV. 8, 2008, at A23.
156. Id.
157. Shelby Steele, Editorial, Selma to San Francisco?, WALL ST. J., Mar. 18, 2004, at A16.
158. Indeed, race/sexual orientation analogies have invited critique for any number of reasons, either because they treat the categories that they analogize - racial minorities and sexual minorities - in monolithic ways that fail to capture intra-group convergences or because they group together historical moments that, at least under one view, share little in common. See, e.g., Devon W. Carbado, Black Rights, Gay Rights, Civil Rights, 47 U.C.L.A. L. REV. 1467, 1484-85 & n.118 (2000) (arguing that race/sexual orientation analogies often render black sexual minorities invisible);
159. Angela Onwuachi-Willig, Undercover Other, 94 CAL. L. REV. 873, 879-82 (2006) (noting that the comparison between same-sex marriage prohibitions and anti-miscegenation laws "has generated a number of legal and non-legal responses in the black community that challenge" that analogy and providing some examples of such responses);
160. Marc S. Spindelman, Reorienting Bowers v. Hardwick, 79 N.C. L. REV. 359, 430-36 (2001) (discussing the race/sexual orientation analogy and its criticisms);
161. Steele, supra note 121 (arguing that the deployment of the race/sexual orientation analogy in the marriage context is misplaced because civil rights for African Americans and the battle for marriage for same-sex partners do not share common ground).
162. BOSWELL, SAME-SEX UNIONS, supra note 63, at xxiii (internal quotation marks omitted).
163. See, e.g., Katherine Franke, Cunning Stunts: From Hegemony to Desire: A Review of Madonna's Sex, 20 N.Y.U. REV. L. & SOC. CHANGE 549, 564 (1994) ("The unspeakability of the crime of homosexuality, that is, the crime of deviance from compulsory heterosexual norms, is evident in such bastions of legal tradition as Blackstone and the United States Supreme Court.");
164. Kenji Yoshino, Suspect Symbols: The Literary Argument for Heightened Scrutiny for Gays, 98 COLUM. L. REV. 1753, 1789-90 (1996) [hereinafter Yoshino, Suspect Symbols] (detailing the ways in which "homosexuality ... is framed through pretention: that is, the mention of a term only to dismiss it").
165. Following Boswell, this Article identifies the early-Christian period as including the years 300-500 A.D. In addition, and also following Boswell, it identifies the early Middle Ages as extending 500-1050 A.D., the high Middle Ages as extending 1050-1150 A.D., and the later Middle Ages as extending 1150-1350 A.D. See generally BOSWELL, CHRISTIANITY, SOCIAL TOLERANCE, AND HOMOSEXUALITY, supra note 63.
166. BOSWELL, CHRISTIANITY, SOCIAL TOLERANCE, AND HOMOSEXUALITY, supra note 63, at 310.
167. Id. (calling The Complaint of Nature an "influential poem" and referring to Alan as "a celebrated and influential teacher" who "wrote treatises against heretics, Jews, infidels, and Muslims" and who "took part in the Third Lateran Council of 1179, which condemned or restricted the freedom of these and other nonconformist groups, " including those who engaged in "homosexual behavior"). Boswell further notes that Alan's writings were relied on "heavily" by thirteenth-century writers and theologians interested in "rationalizing] the Christian faith in accordance with principles of Greek philosophy." Id. at 311.
168. For another account of Alan of Lille and his influence on the anti-homosexual discourse of the later medieval period, see Alan of Lille, in ENCYCLOPEDIA OF HOMOSEXUALITY 32 (Wayne R. Dynes et al. eds., 1990).
169. Alain de Lille, The Complaint of Nature, in 36 YALE STUDIES IN ENGLISH 3 (Albert S. Cook ed., Douglas M. Moffat trans., 1908).
170. Id. at 51.
171. See BOSWELL, CHRISTIANITY, SOCIAL TOLERANCE, AND HOMOSEXUALITY, supra note 63, at 148 ("[A]ny use of human sexuality, potential or actual, which did not produce legitimate offspring violated 'nature'; all moral issues were subordinate to the primary duty of males to procreate.").
172. Susan Schibanoff, Sodomy's Mark: Alan of Lille, Jean de Meun, and the Medieval Theory of Authorship, in QUEERING THE MIDDLE AGES 28, 30 (Glen Burger & Steven F. Kruger eds., 2001).
173. See JENNIFER TERRY, AN AMERICAN OBSESSION: SCIENCE, MEDICINE , AND HOMOSEXUALITY IN MODERN SOCIETY 36 (1999).
174. See I MICHEL FOUCAULT, THE HISTORY OF SEXUALITY: AN INTRODUCTION 43 (Robert Hurley trans., Vintage Books 1990) (1976) ("The nineteenth-century homosexual became a personage, a past, a case history, and a childhood, " in addition to being a type of life, a life form, and a morphology, with an indiscreet anatomy and possibly a mysterious physiology."). But see MARK D. JORDAN, THE INVENTION of SODOMY IN CHRISTIAN THEOLOGY 163-64 (1997) [hereinafter JORDAN, INVENTION] (arguing that the idea that those who engage in same-sex sodomy might be perceived as having a separate "identity" as such might be traced back to Peter Damian, an eleventh-century Church reformer who not only coined the term sodomia but also built an incipient identity around those who engaged in that conduct, persons known at that time as "Sodomites").
175. JORDAN, INVENTION, supra note 133, at 79 (stating that "the most obvious and puzzling feature of Alan's work" is "his choice of grammatical metaphors for describing deviations of human copulation").
176. See RICHARD HALPERN, SHAKESPEARE'S PERFUME: SODOMY AND SUBLIMITY IN THE SONNETS, WILDE, FREUD, AND LACAN 23-24 (2002).
177. Id. at 24.
178. See supra note 125 for a description of this and other temporal terms.
179. See, e.g., BOSWELL, CHRISTIANITY, SOCIAL TOLERANCE, AND HOMOSEXUALITY, supra note 63, at 202 (stating that during the early Middle Ages "'[s]odomy' came to refer to any emission of semen not directed exclusively toward the procreation of a legitimate child within matrimony, and the term included much - if not most - heterosexual activity").
180. See id.
181. M ARK D. JORDAN, THE SILENCE OF SODOM: HOMOSEXUALITY IN MODERN CATHOLICISM 16 (2002) [hereinafter JORDAN, SILENCE].
182. JORDAN, INVENTION, supra note 133, at 33.
183. See infra section III.C.
184. St. AUGUSTINE, On the Good of Marriage, in SEVENTEEN SHORT TREATISES OF ST. AUGUSTINE, BISHOP OF HIPPO 274, 283 (Oxford, John Henry Parker 1847) (emphasis added).
185. For additional bibliographic information on Chrysostom, see Robert Wilken, John Chrysostom, in 1 ENCYCLOPEDIA OF EARLY CHRISTIANITY 622, 622-24 (Everett Ferguson et al. eds., 2d ed. 1998).
186. ST. JOHN CHRYSOSTOM, Homily XX, in THE HOMILIES OF ST. JOHN CHRYSOSTOM, ARCHBISHOP OF CONSTANTINOPLE, ON THE EPISTLES OF ST. PAUL THE APOSTLE TO TIMOTHY, TITUS, AND PHILEMON 306, 318 (Oxford, John Henry Parker 1843).
187. THOMAS COOPER, THE INSTITUTES OF JUSTINIAN 387 (New York, John S. Voorhies 1852) (entry for "De adulteriis").
188. D.P. SIMPSON, CASSELL'S LATIN DICTIONARY 241, 252 (5th ed. 1968) (entry for "for, " "fari").
189. See BOSWELL, CHRISTIANITY, SOCIAL TOLERANCE, AND HOMOSEXUALITY, supra note 63, at 171 ("Not until 533 did any part of the Empire see legislation flatly outlawing homosexual behavior .... In that year, ... the emperor Justinian placed all homosexual relations under the same category as adultery and subjected them for the first time to civil sanctions (adultery was at that time punishable by death).").
190. MICHAEL GOODICH, THE UNMENTIONABLE VICE: HOMOSEXUALITY IN THE LATER MEDIEVAL PERIOD 62 (1979).
191. BOSWELL, CHRISTIANITY, SOCIAL TOLERANCE, AND HOMOSEXUALITY, supra note 63, at 277 (stating that "[a] few social critics ... did single gay people out for special attack" during the later Medieval period and began "[u]sing the word 'sodomy' to refer solely to homosexual acts (... against theological precedent)");
192. see also id. at 293 ("Between 1250 and 1300, homosexual activity passed from being completely legal in most of Europe to incurring the death penalty in all but a few contemporary legal compilations.");
193. id. at 295 ("During the 200 years from 1150 to 1350, homosexual behavior appears to have changed, in the eyes of the public, from the personal preference of a prosperous minority, satirized and celebrated in popular verse, to a dangerous, antisocial, and severely sinful aberration.").
194. See infra notes 126-33 and accompanying text.
195. JORDAN, INVENTION, supra note 133, at 150 (commenting on Thomas's appropriation of "the tradition according to which vice against nature is a vice that cannot be named");
196. see also id. at 151 (arguing that the "vagueness of [Thomas's] Summa and its emphasis on the rare conditions under which the vice [against nature] is generated would seem to indicate something of the traditional reserve").
197. Id. at 150.
198. Id. at 133.
199. Id. Jordan writes: There is in Albert the Great's texts on Sodomy a series of dissociations by which he refuses to engage the analyses of same-sex copulation in his own scientific or medical authorities, and this despite his regular appropriation of their teaching on other topics. At the same time, Albert fails to correct the medical or scientific analyses of same-sex copulation - even though he is eager to correct errors elsewhere. His refusal to discuss even to the point of refusing to correct shows quite plainly a new familiar feature of the theological artifact that is the conception of "Sodomy": the desire to exclude it from speech altogether. Albert here enacts that desire with regard to medicine and natural philosophy. Where he will not engage, he keeps silence. Id. (emphasis added).
200. Id. at 111 (internal citation omitted).
201. Id. at 106.
202. Id. at 93.
203. Id. at 112.
204. On this subtle connection, Jordan writes: Confessors are not to mention any of the forms of Sodomy for fear of encouraging them in those who might not know about them... . The fear of Sodomy ends up by undoing the pretense of spiritual care for Sodomites. Their sin cannot be spoken plainly. It cannot be preached against. It cannot be broached even within the confession except with utmost indirection. The fanciful etymology recalled by Robert of Sorbonne and William Peraldus claims that "Sodom" means mute. In fact, it is Robert and William who have been made mute on the subject of Sodomy. Incoherent fear of sin has taken away the voice of confessors and preachers. Their silence is an ironic, an unintended testimony to the power of Sodom over the clergy. Id. at 113 (emphasis added).
205. See JORDAN, INVENTION, supra note 133, at 150 (commenting on Thomas's appropriation of "the tradition according to which vice against nature is a vice that cannot be named").
206. BLACKSTONE, supra note 21.
207. EDWARDO COKE, THE THIRD PART OF THE INSTITUTES OF THE LAWS OF ENGLAND 58 (London, E. & R. Brooke 1797).
208. BLACKSTONE, supra note 21, at *216.
209. Id. at *215.
210. Honselman v. People, 48 N.E. 304, 304 (Ill. 1897) (emphasis added).
211. Id. (emphasis added) (internal citation omitted).
212. On sodomy as a "metonym" for homosexuality, see infra note 179. Prior to Lawrence v. Texas, 539 U.S. 558 (2003), courts routinely conflated conduct (sodomy) and status (homosexuality). See, e.g., Shahar v. Bowers, 114 F.3d 1097, 1105-06, 1110 (11th Cir. 1997) (en banc) (upholding an openly gay attorney's termination from the state attorney general's office on the ground that her participation in a same-sex commitment ceremony indicated that she was homosexual and therefore presumptively violating Georgia's criminal sodomy statute). Even after Lawrence, the law continues to conflate homosexuality and sodomy.
213. For instance, the military's exclusionary policy, popularly known as "don't ask, don't tell, " subjects members of the armed forces to discharge if they engage in "homosexual acts, " and provides that admission of one's homosexual status creates a presumption that he or she engages in that prohibited conduct. See 10 U.S.C. § 654 (2000) (requiring that any individual admitting to homosexuality or bisexuality must be discharged unless there is a further finding that the member has demonstrated that he or she is not a person who engages in homosexual acts).
214. Locke v. State, 501 S.W.2d 826, 830 (Tenn. Crim. App. 1973) (Galbreath, J., dissenting).
215. Harvey v. State, 115 S.W. 1193, 1193 (Tex. Crim. App. 1909).
216. Glover v. State, 101 N.E. 629, 630 (Ind. 1913) (upholding male defendant's conviction for committing sodomy with another male);
217. see also id. ("It has never been the usual practice to describe the particular manner or the details of the commission of the act, and, where the offense is statutory, a statement of it in the language of the statute, or so plainly that its nature may be easily understood, is all that is required.").
218. Halley, supra note 25, at 955;
219. see also Lawrence Goldyn, Gratuitous Language in Appellate Cases Involving Gay People: "Queer Baiting" From the Bench, 3 POL. BEHAV. 31, 36 (1981).
220. State v. Stubbs, 145 S.E.2d 899, 902 (N.C. 1966);
221. see also State v. White, 217 A.2d 212, 215 (Me. 1966) (describing sodomy as "a dirty business").
222. Hughes v. State, 287 A.2d 299, 302 n.3 (Md. Ct. Spec. App. 1972).
223. Id.
224. Carter v. State, 500 S.W.2d 368, 370 (Ark. 1973).
225. Halley, supra note 25, at 955.
226. Bowers v. Hardwick, 478 U.S. 186 (1986) (upholding the constitutionality of Georgia's criminal sodomy law and finding that no "right to homosexual conduct" existed under the federal Constitution).
227. For sodomy as a "metonym" for homosexuality, see Janet E. Halley, Reasoning About Sodomy: Acts and Identity in and After Bowers v. Hardwick, 79 VA. L. REV. 1721, 1737 (1993) ("Sodomy ... is such an intrinsic characteristic of homosexuals, and so exclusive to us, that it constitutes a rhetorical proxy for us. It is our metonym.").
228. For the conflation of sodomy and homosexuality in Bowers, see Chai R. Feldblum, Sexual Orientation, Morality, and the Law: Devlin Revisited, 57 U. PITT. L. REV. 237, 288 (1996) ("From the beginning of the opinion, in which Justice White first described the question on which the Court granted certiorari, the conflation between 'engaging in sodomy' and 'being a homosexual' is apparent.").
229. Bowers, 478 U.S. at 197 (Burger, C.J., concurring) (quoting 4 BLACKSTONE, COMMENTARIES *215).
230. Whereas historically those people were called Sodomites, today they are called gays and lesbians. See, e.g., JORDAN, SILENCE, supra note 140, at 9.
231. Glover v. State, 101 N.E. 629, 631 (Ind. 1913).
232. BOSWELL, SAME-SEX UNIONS, supra note 63, at xxiii.
233. Id. at xxiv.
234. Id. at xxiii.
235. Id. at xxiii-xxiv.
236. See, e.g., Courtney Megan Cahill, Same-Sex Marriage, Slippery Slope Rhetoric, and the Politics of Disgust: A Critical Perspective on Contemporary Family Discourse and the Incest Taboo, 99 NW. U. L. REV. 1543 (2005);
237. William N. Eskridge, Jr., Body Politics: Lawrence v. Texas and the Constitution of Disgust and Contagion, 57 FLA. L. REV. 1011 (2005);
238. Martha Nussbaum, "Secret Sewers of Vice": Disgust, Bodies, and the Law, in THE PASSIONS OF LAW 19, 45 (Susan A. Bandes ed., 1999).
239. See, e.g., COCKS, supra note 24, at 160 (stating that "the unnameable quality of homosexual desire was one of [gay men's] principal resources" because it "enabled them to develop intimacies which at a later date would have seemed suspicious, if not pathological").
240. Id.
241. See HALPERN, supra note 135, at 22;
242. ELAINE SHOWALTER, SEXUAL ANARCHY: GENDER AND CULTURE AT THE FIN DE SIÈ CLE 176 (1990) (referring to Oscar Wilde's "rationalization of homosexual desire as aesthetic experience").
243. Lawrence v. Texas, 539 U.S. 558 (2003) (striking down Texas' criminal sodomy prohibition and overruling Bowers v. Hardwick, 478 U.S. 186 (1986)).
244. See, e.g., MORAN, supra note 23, at 45 ("[T]he silence of the law does not in the first instance produce an absolute prohibition but gives rise to a certain proliferation of speech ... by way of a multiplicity of euphemisms.");
245. SEDGWICK, EPISTEMOLOGY, supra note 26, at 203 (stating that preterition, or the rhetorical practice of naming something by dismissing it, performed the dual function of both negativing/obliterating same-sex intimacy and affirming/reifying it);
246. Lawrence Danson, Oscar Wilde, W. H., and the Unspoken Name of Love, 58 ENG. LTT. HIST. 979, 981 (1991) (stating that in Oscar Wilde's The Picture of Dorian Gray, "negatives of direct statement can be subverted into sexual affirmations").
247. On sodomy as a metonym for homosexuality, see supra note 179.
248. Kenji Yoshino, Assimilationist Bias in Equal Protection: The Visibility Presumption and The Case of "Don't Ask, Don't Tell, " 108 YALE L.J. 485, 527 (1998) [hereinafter Yoshino, Assimilationist Bias]. Yoshino notes that "[t]he lines between these two harms [are] not always ... clear." Id. at 527 n.180.
249. The Wolfenden Report, short for The Report of the Departmental Committee on Homosexual Offences and Prostitution, was published in Britain in 1957. It is named after the chairman of that committee, Sir John Wolfenden. The Report recommended that Parliament decriminalize homosexuality in Britain, which it finally did in 1967 with the passage of the Sexual Offences Act of 1967. See MORAN, supra note 23, at 21-27.
250. SIR JOHN WOLFENDEN, TURNING POINTS: THE MEMOIRS OF LORD WOLFENDEN 132 (1976). Wolfenden also points out that more people "knew about prostitution" than about homosexuality. Id.
251. BOSWELL, SAME-SEX UNIONS, supra note 63, at xxiv.
252. Respondents' Opening Brief on the Merits at 23, In re Marriage Cases, 183 P.3d 384 (Cal. 2008) (No. S147999) (emphasis added).
253. Carbado, supra note 122, at 1476.
254. Id. (citing Marlon T. Riggs, Black Macho Revisited: Reflections of a SNAP! Queen, in BLACK MEN ON RACE, GENDER, AND SEXUALITY: A CRITICAL READER 306, 310 (quoting Professor Griff of Public Enemy)) (emphasis added).
255. Id.
256. At least, of course, according to Griff.
257. Yoshino, Assimilationist Bias, supra note 194, at 530 (stating that "if one suspends the assumption that essences exist" and assumes instead that "expression is not just an effect of an underlying identity but potentially a cause of it as well, " then "when that expression is burdened, the burden is not only an epistemic harm but also an ontic one").
258. For instance, Judith Butler has argued that "the name wields a linguistic power of constitution" and that "to utter is to create the effect uttered." JUDITH BUTLER, EXCITABLE SPEECH: A POLITICS OF THE PERFORMATIVE 31, 32 (1997) (emphasis added).
259. Lewis v. Harris, 908 A.2d 196, 223 (N.J. 2006).
260. The same, of course, goes for Professor Griff's statement that black homosexuality is a "brand-new" phenomenon. See Carbado, supra note 122, at 1476. When the Lewis court, and Professor Griff, characterize same-sex relationships/homosexuality as a "new" phenomenon, they exercise what Sedgwick has referred to as the "epistemological privilege of unknowing." EVE KOSOFSKY SEDGWICK, TENDENCIES 24 (1993) [hereinafter SEDGWICK, TENDENCIES] (internal citations omitted). Professor Yoshino has recently argued that "the privilege of unknowing is still powerfully deployed by straights" in American law and culture. Kenji Yoshino, Covering, 111 YALE L.J. 769, 824 (2002) [hereinafter Yoshino, Covering].
261. See also Yoshino, Suspect Symbols, supra note 124, at 1790 (commenting on die Bowers majority's exercise of the " epistemological privilege of unknowing")
262. Respondents' Opening Brief on the Merits at 23, In re Marriage Cases, 183 P.3d 384 (Cal. 2008) (No. S147999).
263. BOSWELL, SAME-SEX UNIONS, supra note 63, at xxiii.
264. Respondents' Supplemental Brief at 25, In re Marriage Cases, 183 P.3d 384 (Cal. 2008) (No. S147999).
265. See supra note 9 and accompanying text.
266. Lewis v. Harris, 908 A.2d 196, 222 (N.J. 2006).
267. Id.
268. Id. at 223.
269. In re Marriage Cases, 183 P.3d 384, 450 (Cal. 2008) (summarizing these arguments).
270. Id. at 399, 450.
271. Lewis, 908 A.2d at 223 (emphasis added).
272. Marriage Cases, 183 P.3d at 451.
273. Affidavit of Karen Nicholson-McFadden at ¶11, Lewis v. Harris, No. MER-L-15-03, 2003 WL 23191114 (N.J. Super. Ct. Law Div. Nov. 5, 2003), aff'd, 875 A.2d 259 (N.J. Super. Ct. App. Div. 2005), aff'd, 908 A.2d 196 (N.J. 2006).
274. Id. ¶13.
275. Id. ¶ 15. .
276. Kerrigan v. State, 909 A.2d 89, 98 (Conn. Super. Ct. 2006), rev'd, Kerrigan v. Comm'r of Pub. Health, 957 A.2d 407 (Conn. 2008) (summarizing these arguments).
277. Id. at 98.
278. See infra Part III.
279. See supra note 111 and accompanying text.
280. See In re Marriage Cases, 49 Cal. Rptr. 3d, 675, 760 n.23 (Ct. App. 2006) (Kline, J., concurring and dissenting) (emphasis added) (summarizing these statements), rev'd, 183 P.3d 384 (Cal. 2008).
281. See Respondents' Opening Brief on the Merits at 15, In re Marriage Cases, 183 P.3d 384 (Cal. 2008) (No. S147999).
282. Brief of the Plaintiffs-Appellants at 18, Kerrigan v. Comm'r of Pub. Health, 957 A.2d 407 (Conn. 2008) (No. 17716).
283. See Marriage Cases, 49 Cal. Rptr. 3d at 761 n.23 (Klein, J., concurring and dissenting).
284. Respondents' Opening Brief on the Merits at 15, In re Marriage Cases, 183 P.3d 384 (Cal. 2008) (No. S147999) (emphasis added).
285. See NEW JERSEY CIVIL UNION REVIEW C OMMISSION, FIRST INTERIM REPORT 10 (2008), available at http://www.NJCivilRights.org/ curc.
286. Id. at 8 (emphasis added).
287. Id.
288. See WOLFENDEN, supra note 196, at 132.
289. BOSWELL, SAME-SEX UNIONS, supra note 63, at xxiv.
290. Judith Butler has described this epistemic problem as one of "intelligibility." In particular, she has noted that "marriage" is "the current episteme of intelligibility" among all other family forms. JUDITH BUTLER, Is Kinship Always Already Heterosexual?, in UNDOING GENDER 102, 113-14 (2004).
291. On the power of "marriage" to make relationships more "real, " see id. at 114 (stating that excluding same-sex couples from legitimate familial forms like marriage can cultivate a "sense of delegitimation [that] can make it harder to sustain a bond, a bond that is not real anyway, a bond that does not 'exist, 'that never had a chance to exist, that was never meant to exist. If you're not real, it can be hard to sustain yourselves over time." (emphasis added)). However, Butler also questions whether "there [are] not other ways of feeling possible, intelligible, even real, apart from the sphere of state recognition." Id. (emphasis added).
292. In re Marriage Cases, 49 Cal. Rptr. 3d 675, 761 n.23 (Cal. Ct. App. 2006) (Kline, J., concurring and dissenting) (summarizing these statements), rev'd. 183 P.3d 384 (Cal. 2008).
293. Affidavit of Karen Nicholson-McFadden at ¶14, Lewis v. Harris, No. MER-L-15-03, 2003 WL 23191114 (N.J. Super. Ct. Law Div. Nov. 5, 2003), aff'd, 875 A.2d 259 (N.J. Super. Ct. App. Div. 2005), aff'd, 908 A.2d 196 (N.J. 2006).
294. Marriage Cases, 49 Cal. Rptr. 3d at 961 n.23.
295. Id.
296. Pamela J. Lannutti, The Influence of Same-Sex Marriage on the Understanding of Same-Sex Relationships, 53 J. HOMOSEXUALITY 135, 142 (2007) (emphasis added) (internal quotation marks omitted).
297. Id. (emphasis added).
298. Id.
299. Id. at 140;
300. see also Pamela J. Lannutti, For Better or Worse: Exploring the Meanings of Same-Sex Marriage Within the Lesbian, Gay, Bisexual and Transgendered Community, 22 J. OF SOC. & PERS. RELATIONSHIPS 5, 10 (2005) (summarizing a study that found that same-sex marriage was viewed by the gay community "as a means for same-sex partnerships to become more serious, " but also "more fanciful").
301. Supra note 106 and accompanying text.
302. COKE, supra note 163.
303. Lawrence v. Texas, 539 U.S. 558 (2003) (striking down Texas' criminal sodomy prohibition and overruling Bowers v. Hardwick).
304. 478 U.S. 186 (1986).
305. While one might argue that when Lawrence overruled Bowers it also "overruled" the tradition of reticence and unnameability reflected in the case, some commentators have suggested to the contrary that Lawrence is itself marked by reticence. See, e.g., Cass R. Sunstein, What Did Lawrence Hold? Of Autonomy, Desuetude, Sexuality, and Marriage, 2003 SUP. Ct. REV. 27, 29 (2003) (calling Lawrence a "remarkably opaque" decision).
306. See generally Mary Anne Case, Of "This" and "That" in Lawrence v. Texas, 2003 Sup. CT. REV. 75 (2003);
307. Laurence Tribe, Lawrence v. Texas: The "Fundamental Right" That Dare Not Speak Its Name, 117 HARV. L. REV. 1893 (2004).
308. Respondents' Opening Brief on the Merits at 18, In re Marriage Cases, 183 P.3d 384 (Cal. 2008) (No. S147999).
309. Id. at 22.
310. Id.
311. See, e.g., Jami Weinstein & Tobyn DeMarco, Challenging Dissent: The Ontology and Logic of Lawrence v. Texas, 10 CARDOZO WOMEN'S L.J. 423, 443 (2004) ("[T]he very word homosexual became linked to the pathologization of it insofar as the term was invented and the species was born under the guise of essentializing a class of people thought to be deviant."). It was not until 1973 that the American Psychiatric Association removed "homosexuality" as a listed medical condition from the Diagnostic and Statistical Manual II. See Yoshino, Covering, supra note 206, at 805.
312. The issue, that is, of whether the class should be "named" LGBT, GLBT, LGB, etc.
313. See, e.g., DEBORAH CAMERON & DON KULICK, LANGUAGE AND SEXUALITY 12 (2003) ("Language, arguably the most powerful definitional/representational medium available to humans, shapes our understanding of what we are doing (and of what we should be doing) when we do sex or sexuality.").
314. C.S. LEWIS, ALLEGORY OF LOVE: A STUDY IN MEDIEVAL TRADITION 1 (1936).