Resistance to same-sex marriage as a story about language: Linguistic failure and the priority of a living language

Harvard Civil Rights-Civil Liberties Law Review

Volumn 34, Issue 2, 1999, Pages 384-434

  Kuykendall, Mae ^a,b,c,d  

^a MICHIGAN STATE UNIVERSITY   (United States)

^b UNIVERSITY OF HOUSTON   (United States)

^c UNIVERSITY OF NORTH CAROLINA   (United States)

^d HARVARD LAW SCHOOL   (United States)

Author keywords

[No Author keywords available]

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EID: 8344278029     PISSN: 00178039     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (228)

1. See BARNEY FRANK, PUBLIC FACES/PRIVATE LIVES: BOSTON'S LESBIAN AND GAY HISTORY (Neal Kane ed., 1980) ("People complain they are being told more than they want to know about the private lives of lesbians, gay men and bisexuals. They are, often without realizing it, not only objecting to honesty, but arguing in favor of outright deception."). See also MARTHA BARRON BARTLETT, INVISIBLE LIVES: THE TRUTH ABOUT MILLIONS OF WOMEN-LOVING WOMEN 330 (1989) (quoting a minister's denunciation of "thieves, murderers and homosexuals," and the reaction of a member of a lesbian social group: "Somebody's lying. There are so many nice women here.").
2. See BARNEY FRANK, PUBLIC FACES/PRIVATE LIVES: BOSTON'S LESBIAN AND GAY HISTORY (Neal Kane ed., 1980) ("People complain they are being told more than they want to know about the private lives of lesbians, gay men and bisexuals. They are, often without realizing it, not only objecting to honesty, but arguing in favor of outright deception."). See also MARTHA BARRON BARTLETT, INVISIBLE LIVES: THE TRUTH ABOUT MILLIONS OF WOMEN-LOVING WOMEN 330 (1989) (quoting a minister's denunciation of "thieves, murderers and homosexuals," and the reaction of a member of a lesbian social group: "Somebody's lying. There are so many nice women here.").
3. See ANDREA WEISS, VAMPIRES AND VIOLETS: LESBIANS IN FILM 32 (1992). Something that, through gossip, is commonplace knowledge within the gay subculture is often completely unknown on the outside, and if not unknown, at least unspeakable. It is this insistence by the dominant culture on making homosexuality invisible and unspeakable that both requires and enables us to locate gay history in rumor, innuendo, fleeting gestures and coded language .... Id. (emphasis added).
4. The Unsayer is a replacement for the "knower," an epistemological strategy utilized by Judge Robert Bork in Dronenburg v. Zech, 741 F.2d 1388 (D.C. Cir. 1984), and so described by Janet Halley. See Janet E. Halley, The Politics of the Closet: Towards Equal Protection for Gay, Lesbian, and Bisexual Identity, 36 UCLA L. REV. 915, 954 (1989) (citing Dronenburg, 741 F.2d at 1395-96). Judge Bork adopted the tone of one who knows about matters that may not be spoken; his conclusion denying the application of privacy precedents to homosexual conduct asserted things known that need not be said and must not be said. See Halley, supra at 954.
5. See, e.g., Jane Futcher, Family Fiction, in MOM: CANDID MEMOIRS BY LESBIANS ABOUT THE FIRST WOMAN IN THEIR LIFE 140 (Nisa Donnelly ed., 1998) (describing her reaction to stories by her mother, a prolific southern storyteller). The older I got the more impatient I became with stories [by my mother] that so completely left me out. It wasn't that she didn't love me; it was just that her favorite stories, the ones she loved to tell most, the ones she reveled in, were always of heterosexuals, the most rich and famous, and those who, like herself, stayed in the most beautiful hotels . . . . She needed the details of my life as a lesbian to be invisible . . . . [A]ll details were expurgated. My life was right there on the cutting room floor with [other family secrets]. Id. at 140.
6. See Charles J. Butler, The Defense of Marriage Act: Congress's Use of Narrative in the Debate Over Same-Sex Marriage, 73 N.Y.U. L. REV. 841, 853-63 (1998) (describing the evolution of the gay and lesbian marriage narrative).
7. See, e.g., LESBIAN AND GAY MARRIAGE: PRIVATE COMMITMENTS, PUBLIC CEREMONIES (Suzanne Sherman ed., 1992) (offering the perspectives of many same-sex couples who have made the decision to, or not to, announce their commitment in a public marriage ceremony); see also, e.g., WILLIAM N. ESKRIDGE, JR., THE CASE FOR SAME-SEX MARRIAGE: FROM SEXUAL LIBERTY TO CIVILIZED COMMITMENT (1996); STEVE GUNDERSON & ROB MORRIS, HOUSE AND HOME (1996); ELLEN LEWIN, RECOGNIZING OURSELVES: CEREMONIES OF LESBIAN AND GAY COMMITMENT (1998). See also Lambda Legal Defense and Education Fund, The Marriage Resolution (last modified February 11, 1999) (providing text of a resolution that has been adopted by, among others, the Washington State Democratic Party). The resolution provides that: "BECAUSE marriage is a basic human right and an individual personal choice, RESOLVED the State should not interfere with same-gender couples who choose to marry and share fully and equally in the rights, responsibilities and commitment of civil marriage." Id. But see Baehr v. Lewin, 852 P.2d 54 (Haw. 1993) (holding that there is no fundamental right to marriage for same-sex couples under the Hawaii Constitution).
8. See, e.g., LESBIAN AND GAY MARRIAGE: PRIVATE COMMITMENTS, PUBLIC CEREMONIES (Suzanne Sherman ed., 1992) (offering the perspectives of many same-sex couples who have made the decision to, or not to, announce their commitment in a public marriage ceremony); see also, e.g., WILLIAM N. ESKRIDGE, JR., THE CASE FOR SAME-SEX MARRIAGE: FROM SEXUAL LIBERTY TO CIVILIZED COMMITMENT (1996); STEVE GUNDERSON & ROB MORRIS, HOUSE AND HOME (1996); ELLEN LEWIN, RECOGNIZING OURSELVES: CEREMONIES OF LESBIAN AND GAY COMMITMENT (1998). See also Lambda Legal Defense and Education Fund, The Marriage Resolution (last modified February 11, 1999) (providing text of a resolution that has been adopted by, among others, the Washington State Democratic Party). The resolution provides that: "BECAUSE marriage is a basic human right and an individual personal choice, RESOLVED the State should not interfere with same-gender couples who choose to marry and share fully and equally in the rights, responsibilities and commitment of civil marriage." Id. But see Baehr v. Lewin, 852 P.2d 54 (Haw. 1993) (holding that there is no fundamental right to marriage for same-sex couples under the Hawaii Constitution).
9. See, e.g., LESBIAN AND GAY MARRIAGE: PRIVATE COMMITMENTS, PUBLIC CEREMONIES (Suzanne Sherman ed., 1992) (offering the perspectives of many same-sex couples who have made the decision to, or not to, announce their commitment in a public marriage ceremony); see also, e.g., WILLIAM N. ESKRIDGE, JR., THE CASE FOR SAME-SEX MARRIAGE: FROM SEXUAL LIBERTY TO CIVILIZED COMMITMENT (1996); STEVE GUNDERSON & ROB MORRIS, HOUSE AND HOME (1996); ELLEN LEWIN, RECOGNIZING OURSELVES: CEREMONIES OF LESBIAN AND GAY COMMITMENT (1998). See also Lambda Legal Defense and Education Fund, The Marriage Resolution (last modified February 11, 1999) (providing text of a resolution that has been adopted by, among others, the Washington State Democratic Party). The resolution provides that: "BECAUSE marriage is a basic human right and an individual personal choice, RESOLVED the State should not interfere with same-gender couples who choose to marry and share fully and equally in the rights, responsibilities and commitment of civil marriage." Id. But see Baehr v. Lewin, 852 P.2d 54 (Haw. 1993) (holding that there is no fundamental right to marriage for same-sex couples under the Hawaii Constitution).
10. See, e.g., LESBIAN AND GAY MARRIAGE: PRIVATE COMMITMENTS, PUBLIC CEREMONIES (Suzanne Sherman ed., 1992) (offering the perspectives of many same-sex couples who have made the decision to, or not to, announce their commitment in a public marriage ceremony); see also, e.g., WILLIAM N. ESKRIDGE, JR., THE CASE FOR SAME-SEX MARRIAGE: FROM SEXUAL LIBERTY TO CIVILIZED COMMITMENT (1996); STEVE GUNDERSON & ROB MORRIS, HOUSE AND HOME (1996); ELLEN LEWIN, RECOGNIZING OURSELVES: CEREMONIES OF LESBIAN AND GAY COMMITMENT (1998). See also Lambda Legal Defense and Education Fund, The Marriage Resolution (last modified February 11, 1999) (providing text of a resolution that has been adopted by, among others, the Washington State Democratic Party). The resolution provides that: "BECAUSE marriage is a basic human right and an individual personal choice, RESOLVED the State should not interfere with same-gender couples who choose to marry and share fully and equally in the rights, responsibilities and commitment of civil marriage." Id. But see Baehr v. Lewin, 852 P.2d 54 (Haw. 1993) (holding that there is no fundamental right to marriage for same-sex couples under the Hawaii Constitution).
11. See, e.g., LESBIAN AND GAY MARRIAGE: PRIVATE COMMITMENTS, PUBLIC CEREMONIES (Suzanne Sherman ed., 1992) (offering the perspectives of many same-sex couples who have made the decision to, or not to, announce their commitment in a public marriage ceremony); see also, e.g., WILLIAM N. ESKRIDGE, JR., THE CASE FOR SAME-SEX MARRIAGE: FROM SEXUAL LIBERTY TO CIVILIZED COMMITMENT (1996); STEVE GUNDERSON & ROB MORRIS, HOUSE AND HOME (1996); ELLEN LEWIN, RECOGNIZING OURSELVES: CEREMONIES OF LESBIAN AND GAY COMMITMENT (1998). See also Lambda Legal Defense and Education Fund, The Marriage Resolution (last modified February 11, 1999) (providing text of a resolution that has been adopted by, among others, the Washington State Democratic Party). The resolution provides that: "BECAUSE marriage is a basic human right and an individual personal choice, RESOLVED the State should not interfere with same-gender couples who choose to marry and share fully and equally in the rights, responsibilities and commitment of civil marriage." Id. But see Baehr v. Lewin, 852 P.2d 54 (Haw. 1993) (holding that there is no fundamental right to marriage for same-sex couples under the Hawaii Constitution).
12. A tone of apology attaches to discussions of same-sex intimacy, leading some to assume that the values affected by efforts at suppression primarily affect the sensibilities of a sequestered population. This Article strives to crystallize the general (public) impact of state efforts to uproot a meaning that has gained a currency and a linguistic normalization that has overcome its genesis in an awkward and once covert variation. The nature of the particular harm should not, however, be minimized. The particular meaning and sense of self that inhere in exchanges that work to communicate an inner life has been tellingly described in connection with the immigrant experience and the costs of assimilation. See EVA HOFFMAN, LOST IN TRANSLATION: A LIFE IN A NEW LANGUAGE 143 (1989).
13. Traditional definitions of marriage are enacted as Unsayings, addressed at the fact of grass-roots meanings and judicial respect for, and consequent incorporation of, such meanings into official discourse.
14. See PEGGY COOPER DAVIS, NEGLECTED STORIES: THE CONSTITUTION AND FAMILY VALUES 114 (1997) (describing efforts to reinstate subordination of black people by defining the civil status of former slaves).
15. See id. at 114-15, 146-47 (describing the use of Black Codes to control family and labor of freed slaves).
16. MARTIN OTTENHEIMER, FORBIDDEN RELATIVES: THE AMERICAN MYTH OF COUSIN MARRIAGE 34(1996).
17. See David Chambers, What If? The Legal Consequences of Marriage and the Legal Needs of Lesbian and Gay Male Couples, 95 MICH. L. REV. 447, 450 (1996) ("Whatever the context of the debate, most speakers are transfixed by the symbolism of legal recognition."). See also RICHARD L. ABEL, SPEAKING RESPECT, RESPECTING SPEECH 1 (1998) (claiming that the struggle for respect is central in contemporary political life and "everywhere I looked, collectivities were . . . fighting with words and against words").
18. See David Chambers, What If? The Legal Consequences of Marriage and the Legal Needs of Lesbian and Gay Male Couples, 95 MICH. L. REV. 447, 450 (1996) ("Whatever the context of the debate, most speakers are transfixed by the symbolism of legal recognition."). See also RICHARD L. ABEL, SPEAKING RESPECT, RESPECTING SPEECH 1 (1998) (claiming that the struggle for respect is central in contemporary political life and "everywhere I looked, collectivities were . . . fighting with words and against words").
19. For an example of the critical importance of the word "marriage" in the American debate about same-sex marriage, see Presbyterian Church Panel Backs a Pastor Who Blessed Gay Couples, N.Y. TIMES, Feb. 3, 1999, at B5, which describes the recent decision of the regional board of one denomination to authorize the performance of same-sex unions so long as the word "marriage" is not used.
20. Andrew Koppelman, Is Marriage Inherently Heterosexual? 42 AM. J. JURIS. 51, 52 (1997) (using this term to describe a group of writers who have developed "the most sophisticated version of the claim that marriage is necessarily heterosexual").
21. See Robert P. George & Gerard V. Bradley, Marriage and the Liberal Imagination, 84 GEO. L.J. 301, 301, 320, n.60 (1995) (emphasizing that the state should do nothing to confer a stamp of approval on homosexual activity, which is said to be "intrinsically nonmarital and immoral"). By enacting domestic partnership statutes, municipalities have seemingly conferred a stamp of approval on gay relationships. These statutes attempt to provide a status analogous to marriage that allows same-sex partners to be registered as a living unit. These ordinances do not generally confer any benefits, but they afford official recognition of the permanence and seriousness of committed same-sex relationships. Gerard Bradley has denied that domestic partnership statutes, properly drawn, have that effect. See Gerard V. Bradley, Remarks at Debate on Same-Sex Marriage with Andrew Koppelman (Mar. 2, 1998). Bradley's stance accords with a trend to broaden domestic partnership ordinances to include any two (or more) people living together in a shared domestic arrangement. For example, in an effort to de-link domestic partner statutes from official recognition of same-sex unions as an entity resembling marriage, the Detroit City Council recommended that domestic partner benefits be accorded to a wide range of familial arrangements, see Shea Howell & Jan Stevenson, Detroit Council Okays DP Benefits, BETWEEN THE LINES, Apr. 16, 1998, at 1. By resolution, the council urged that any of the following receive the health benefits that are now provided to an employee's spouse: (1) a spouse, (2) a domestic partner of the same or opposite sex, provided that the employee and the partner: (a) have lived together for at least six months, and (b) are responsible for each other's welfare on a continuing basis, and (3) a parent, grandparent, sister, brother, or an adult child, provided that the relative: (a) is under 65 years of age, (b) lives in the employee's household, and (c) is the employee's "dependent" as defined by the 1RS. See id.
22. See Robert P. George & Gerard V. Bradley, Marriage and the Liberal Imagination, 84 GEO. L.J. 301, 301, 320, n.60 (1995) (emphasizing that the state should do nothing to confer a stamp of approval on homosexual activity, which is said to be "intrinsically nonmarital and immoral"). By enacting domestic partnership statutes, municipalities have seemingly conferred a stamp of approval on gay relationships. These statutes attempt to provide a status analogous to marriage that allows same-sex partners to be registered as a living unit. These ordinances do not generally confer any benefits, but they afford official recognition of the permanence and seriousness of committed same-sex relationships. Gerard Bradley has denied that domestic partnership statutes, properly drawn, have that effect. See Gerard V. Bradley, Remarks at Debate on Same-Sex Marriage with Andrew Koppelman (Mar. 2, 1998). Bradley's stance accords with a trend to broaden domestic partnership ordinances to include any two (or more) people living together in a shared domestic arrangement. For example, in an effort to de-link domestic partner statutes from official recognition of same-sex unions as an entity resembling marriage, the Detroit City Council recommended that domestic partner benefits be accorded to a wide range of familial arrangements, see Shea Howell & Jan Stevenson, Detroit Council Okays DP Benefits, BETWEEN THE LINES, Apr. 16, 1998, at 1. By resolution, the council urged that any of the following receive the health benefits that are now provided to an employee's spouse: (1) a spouse, (2) a domestic partner of the same or opposite sex, provided that the employee and the partner: (a) have lived together for at least six months, and (b) are responsible for each other's welfare on a continuing basis, and (3) a parent, grandparent, sister, brother, or an adult child, provided that the relative: (a) is under 65 years of age, (b) lives in the employee's household, and (c) is the employee's "dependent" as defined by the 1RS. See id.
23. See Powell v. State, 510 S.E.2d 18 (Ga. Sup. Ct. 1998) (invalidating the state's sodomy law, the very law that has served as the national symbol of legally enforced moral rejection of same-sex intimacy). By overturning the law upheld by the Supreme Court in Bowers v. Hardwick, 478 U.S. 186 (1986), Powell strikes a critical blow to the legal regime of state enforcement of a moral bar on the forms of intimacy that bond same-sex couples.
24. The new natural law theorists have relaxed their view of the importance of state sanction of gay sex, articulating various qualifications of the interests served by, or prudential value of, criminalizing sexual contact between consenting adults. See, e.g., John M. Finnis, Law, Morality, and "Sexual Orientation," 69 NOTRE DAME L. REV. 1049, 1076 (1994).
25. I leave to a later article a full development of the constitutional significance of the failure to incorporate a living language into the language of the state.
26. See Letter from Andrew Koppelman to Mae Kuykendall (Oct. 8, 1998) (on file with author).
27. See David Mellinkoff, The Myth of Precision and the Law Dictionary, 31 UCLA L. REV. 423, 423 (1983).
28. See Frank Michelman, Law's Republic, 97 YALE L.J. 1493, 1517-18 (1988) (connecting the citizen to an idea of self-government exercised in "respect for the human capacity for self-renewal"). The curious form of a legal Unsaying causes linguistic, moral, and constitutionally political arguments to dovetail.
29. The well-documented and continuing reaction to the possibility that a state will recognize same-sex marriages demonstrates decisively that a purely majoritarian approach to the definition of marriage will yield overwhelming votes to suppress recognition of same-sex marriage and elevate the status of heterosexual marriage through legislative restatements of its exclusive call on state recognition. See Defense of Marriage Act (DOMA), 1 U.S.C. § 7, 28 U.S.C. § 1738C (Supp. II 1996) (effective Sept. 21, 1996); 1998 ALA. H.B. 152 (enacted May 1, 1998); ALASKA STAT. § 25.05.013 (Michie 1997) (effective May 7, 1996); ARIZ. REV. STAT. ANN. § 25-101 (West 1997) (effective 1996); ARK. CODE ANN. § 9-11-109 (Michie 1997) (effective Mar. 27, 1997); DEL. CODE ANN. tit. 13, § 101 (1997) (effective June 21, 1996); FLA. STAT. ANN. § 741.212 (West 1997) (effective June 5, 1997); GA. CODE ANN. § 19-3-3.1 (1997) (effective Apr. 2, 1996); HAW. REV. STAT. ANN. § 572-1 (Michie 1998) (effective Jan. 1, 1998); IDAHO CODE § 32-209 (1998) (effective Mar. 18, 1996); ILL. COMP. STAT. ANN. 5/212 (West 1998) (effective May 24, 1996); IND. CODE ANN. § 31-11-1-1 (West 1998) (effective May 13, 1997); KY. REV. STAT. ANN. § 402.005 (Michie 1998) (effective July 15, 1998); LA. CIV. CODE ANN. art. 86 (West 1997) (effective Jan. 1, 1988, as clarified with regard to legislative intent by 1996 House Con. Res. 124); ME. REV. STAT. ANN. tit. 19-A, § 701 (West 1998) (effective Oct. 1, 1997); MICH. COMP. LAWS ANN. §§ 551.1, 551.271 and 551.272 (West 1998) (effective June 26, 1996); MINN. STAT. ANN. § 517.03 (West 1998) (effective June 3, 1997); MISS. CODE ANN. § 93-1-1 (1998) (effective Feb. 12, 1997); MONT. CODE ANN. § 40-1-401 (1998) (effective 1997); N.H. REV. STAT. ANN. § 457:1-2 (1999) (effective July 17, 1987); N.C. GEN. STAT. § 51-1.2 (1997) (effective June 20, 1996); OKLA. STAT. tit. 43, § 3.1 (1997) (effective Jan. 1, 1997); 23 PA. CONS. STAT. ANN. § 1704 (West 1998) (effective Dec. 15, 1996); S.C. CODE ANN. § 20-1-15 (Law. Co-op. 1998) (effective May 20, 1996); TENN. CODE ANN. § 36-3-113 (1997) (effective May 15, 1996); TEX. FAM. CODE ANN. § 2.001 (West 1998) (effective Apr. 17, 1997); UTAH CODE ANN. § 30-1-2 (1998) (effective May 2, 1994); VA. CODE ANN. § 20-45.2 (Michie 1998) (effective 1997); WASH. REV. CODE ANN. §§ 26.04.010(1), 26.04.020(2) (West 1999) (effective June 11, 1998) [herein-after DOMAs]. Similar measures have been unsuccessfully introduced in a number of other state legislatures. There are numerous summaries of the legislative reaction to the possibility of same-sex marriage being placed on a legal par with opposite-sex marriage. See, e.g., Andrew M. Koppelman, Dumb and DOMA: Why the Defense of Marriage Act is Unconstitutional, 83 IOWA L. REV. 1 (1997). A Republican party official lightheartedly expressed a majoritarian perspective recently in explaining why the South Carolina party never polls on the subject of homosexuality: "It would be like asking everybody if they're for free ice cream." Kevin Sack, Gay Rights Movement Meets Big Resistance in South Carolina, N.Y. TIMES, July 7, 1998, at A12.
30. The well-documented and continuing reaction to the possibility that a state will recognize same-sex marriages demonstrates decisively that a purely majoritarian approach to the definition of marriage will yield overwhelming votes to suppress recognition of same-sex marriage and elevate the status of heterosexual marriage through legislative restatements of its exclusive call on state recognition. See Defense of Marriage Act (DOMA), 1 U.S.C. § 7, 28 U.S.C. § 1738C (Supp. II 1996) (effective Sept. 21, 1996); 1998 ALA. H.B. 152 (enacted May 1, 1998); ALASKA STAT. § 25.05.013 (Michie 1997) (effective May 7, 1996); ARIZ. REV. STAT. ANN. § 25-101 (West 1997) (effective 1996); ARK. CODE ANN. § 9-11-109 (Michie 1997) (effective Mar. 27, 1997); DEL. CODE ANN. tit. 13, § 101 (1997) (effective June 21, 1996); FLA. STAT. ANN. § 741.212 (West 1997) (effective June 5, 1997); GA. CODE ANN. § 19-3-3.1 (1997) (effective Apr. 2, 1996); HAW. REV. STAT. ANN. § 572-1 (Michie 1998) (effective Jan. 1, 1998); IDAHO CODE § 32-209 (1998) (effective Mar. 18, 1996); ILL. COMP. STAT. ANN. 5/212 (West 1998) (effective May 24, 1996); IND. CODE ANN. § 31-11-1-1 (West 1998) (effective May 13, 1997); KY. REV. STAT. ANN. § 402.005 (Michie 1998) (effective July 15, 1998); LA. CIV. CODE ANN. art. 86 (West 1997) (effective Jan. 1, 1988, as clarified with regard to legislative intent by 1996 House Con. Res. 124); ME. REV. STAT. ANN. tit. 19-A, § 701 (West 1998) (effective Oct. 1, 1997); MICH. COMP. LAWS ANN. §§ 551.1, 551.271 and 551.272 (West 1998) (effective June 26, 1996); MINN. STAT. ANN. § 517.03 (West 1998) (effective June 3, 1997); MISS. CODE ANN. § 93-1-1 (1998) (effective Feb. 12, 1997); MONT. CODE ANN. § 40-1-401 (1998) (effective 1997); N.H. REV. STAT. ANN. § 457:1-2 (1999) (effective July 17, 1987); N.C. GEN. STAT. § 51-1.2 (1997) (effective June 20, 1996); OKLA. STAT. tit. 43, § 3.1 (1997) (effective Jan. 1, 1997); 23 PA. CONS. STAT. ANN. § 1704 (West 1998) (effective Dec. 15, 1996); S.C. CODE ANN. § 20-1-15 (Law. Co-op. 1998) (effective May 20, 1996); TENN. CODE ANN. § 36-3-113 (1997) (effective May 15, 1996); TEX. FAM. CODE ANN. § 2.001 (West 1998) (effective Apr. 17, 1997); UTAH CODE ANN. § 30-1-2 (1998) (effective May 2, 1994); VA. CODE ANN. § 20-45.2 (Michie 1998) (effective 1997); WASH. REV. CODE ANN. §§ 26.04.010(1), 26.04.020(2) (West 1999) (effective June 11, 1998) [herein-after DOMAs]. Similar measures have been unsuccessfully introduced in a number of other state legislatures. There are numerous summaries of the legislative reaction to the possibility of same-sex marriage being placed on a legal par with opposite-sex marriage. See, e.g., Andrew M. Koppelman, Dumb and DOMA: Why the Defense of Marriage Act is Unconstitutional, 83 IOWA L. REV. 1 (1997). A Republican party official lightheartedly expressed a majoritarian perspective recently in explaining why the South Carolina party never polls on the subject of homosexuality: "It would be like asking everybody if they're for free ice cream." Kevin Sack, Gay Rights Movement Meets Big Resistance in South Carolina, N.Y. TIMES, July 7, 1998, at A12.
31. For one conspicuous example of a successful effort to punish the expressive incidents of a same-sex marriage, see Shahar v. Bowers, 114 F.3d 1097 (11th Cir. 1997) (en bane) (dismissing Robin Shahar for truthfully answering a personnel form of her employer, the Attorney General of Georgia).
32. The arguments in this Article appeal to a constitutional tradition that resides in the expectations and practices of citizens to exercise a wide-ranging and vigorous liberty of conscience, speech, and meaning-making. See Michelman, supra note 21 at 1518. The expectation is that a deeper recognition of the values harmed by restrictive redefinitions of marriage will change understandings of the wisdom of such state enactments.
33. The entire panoply of recent heavily contested reactions to the emerging visibility and voice of gay persons has a definitively odd characteristic. See. e.g., Romer v. Evans, 517 U.S. at 620, 633, 635 (1996) (expressing the idea that the law was unprecedented, and including statement that Colorado's Amendment 2 is "divorced from any factual context from which we could discern a relationship to legitimate state interests"); Commonwealth v. Wasson, 842 S.W.2d 487, 490, 501 (Ky. 1992) (noting that, in attempting to provide a rational basis for Kentucky's anti-sodomy law, the state took "bits and pieces from the testimony of [the other side's] expert witnesses out of context and disregard[ed] their overwhelming [contrary] evidence" and gave "simply outrageous" justifications); JANET E. HALLEY, DON'T: A READER'S GUIDE TO THE MILITARY'S ANTI-GAY POLICY 85 (1999) [hereinafter HALLEY, DON'T] (referring to "lexical volatility" in describing the Hardwick articulation of conduct in terms of a status and the military's configuration of status as conduct); Janet E. Halley, Romer v. Hardwick, 68 COLO. L. REV. 429, 451 (1997) (referring to the Romer Court's attribution to the Colorado voters of "a kind of blithe insouciance about the range of their action"); Koppelman, supra note 14 (describing DOMA's choice of law provision as "strange" and as changing the law, to the extent it does, in "capricious and indefensible ways"); Kendall Thomas, Corpus Juris (Hetero)Sexualis: Doctrine, Discourse, and Desire in Bowers v. Hardwick. 1 GLQ: J. LESBIAN & GAY STUD. 33, 39 (1993) (describing Justice White's language in Bowers v. Hardwick as "an exemplary instance of the 'paranoid style' in American constitutional law").
34. The entire panoply of recent heavily contested reactions to the emerging visibility and voice of gay persons has a definitively odd characteristic. See. e.g., Romer v. Evans, 517 U.S. at 620, 633, 635 (1996) (expressing the idea that the law was unprecedented, and including statement that Colorado's Amendment 2 is "divorced from any factual context from which we could discern a relationship to legitimate state interests"); Commonwealth v. Wasson, 842 S.W.2d 487, 490, 501 (Ky. 1992) (noting that, in attempting to provide a rational basis for Kentucky's anti-sodomy law, the state took "bits and pieces from the testimony of [the other side's] expert witnesses out of context and disregard[ed] their overwhelming [contrary] evidence" and gave "simply outrageous" justifications); JANET E. HALLEY, DON'T: A READER'S GUIDE TO THE MILITARY'S ANTI-GAY POLICY 85 (1999) [hereinafter HALLEY, DON'T] (referring to "lexical volatility" in describing the Hardwick articulation of conduct in terms of a status and the military's configuration of status as conduct); Janet E. Halley, Romer v. Hardwick, 68 COLO. L. REV. 429, 451 (1997) (referring to the Romer Court's attribution to the Colorado voters of "a kind of blithe insouciance about the range of their action"); Koppelman, supra note 14 (describing DOMA's choice of law provision as "strange" and as changing the law, to the extent it does, in "capricious and indefensible ways"); Kendall Thomas, Corpus Juris (Hetero)Sexualis: Doctrine, Discourse, and Desire in Bowers v. Hardwick. 1 GLQ: J. LESBIAN & GAY STUD. 33, 39 (1993) (describing Justice White's language in Bowers v. Hardwick as "an exemplary instance of the 'paranoid style' in American constitutional law").
35. The entire panoply of recent heavily contested reactions to the emerging visibility and voice of gay persons has a definitively odd characteristic. See. e.g., Romer v. Evans, 517 U.S. at 620, 633, 635 (1996) (expressing the idea that the law was unprecedented, and including statement that Colorado's Amendment 2 is "divorced from any factual context from which we could discern a relationship to legitimate state interests"); Commonwealth v. Wasson, 842 S.W.2d 487, 490, 501 (Ky. 1992) (noting that, in attempting to provide a rational basis for Kentucky's anti-sodomy law, the state took "bits and pieces from the testimony of [the other side's] expert witnesses out of context and disregard[ed] their overwhelming [contrary] evidence" and gave "simply outrageous" justifications); JANET E. HALLEY, DON'T: A READER'S GUIDE TO THE MILITARY'S ANTI-GAY POLICY 85 (1999) [hereinafter HALLEY, DON'T] (referring to "lexical volatility" in describing the Hardwick articulation of conduct in terms of a status and the military's configuration of status as conduct); Janet E. Halley, Romer v. Hardwick, 68 COLO. L. REV. 429, 451 (1997) (referring to the Romer Court's attribution to the Colorado voters of "a kind of blithe insouciance about the range of their action"); Koppelman, supra note 14 (describing DOMA's choice of law provision as "strange" and as changing the law, to the extent it does, in "capricious and indefensible ways"); Kendall Thomas, Corpus Juris (Hetero)Sexualis: Doctrine, Discourse, and Desire in Bowers v. Hardwick. 1 GLQ: J. LESBIAN & GAY STUD. 33, 39 (1993) (describing Justice White's language in Bowers v. Hardwick as "an exemplary instance of the 'paranoid style' in American constitutional law").
36. See JOHN MOORE, You ENGLISH WORDS 202 (1961) ("The only words of fixed form and meaning are dead ones, 'Arch.' and 'Obs.' The others, which continue to reflect our living thoughts, are subject to the inexorable laws of life, which forbid immutability.").
37. Standard recountings of the emergence of a claim for same-sex marriage consistently describe the grass-roots pressure that defied the wishes of gay legal strategists. Typically, a couple filed a lawsuit, against the advice of gay legal organizations. Cf. HALLEY, DON'T, supra note 25, at 62 (describing disjunction between gay litigation strategies that exploit status protections by denying link of gay status to sexual conduct and gay political movements, "which have sought to endorse, not abandon, same-sex eroticism").
38. See Linda C. McClain, Deliberative Democracy, Overlapping Consensus, and Same-Sex Marriage, 66 FORDHAM L. REV. 1241 (1998) (arguing for a Rawlsian model of public reason and civility as a basis for constructing a demand for public justification of the majoritarian rejection of same-sex marriage).
39. CARLOS SANTIAGO NINO, THE CONSTITUTION OF DELIBERATIVE DEMOCRACY 85 (1996).
40. See id. at 107.
41. See id. at 138 (listing these conditions as including "the free and equal participation in the process of discussion and decision; the orientation of the communication toward justification; the absence of frozen and insular minorities; and the existence of a proper emotional setting for argumentation").
42. Indeed, in writing "against homosexual marriage," James Q. Wilson seized upon language: "Neither a gay nor a lesbian couple can of its own resources produce a child; another party must be involved. What do we call this third party? A friend? A sperm or egg bank? An anonymous donor? There is no settled language for even describing, much less approving of, such persons." James Q. Wilson, Against Homosexual Marriage, in SAME SEX MARRIAGE: THE MORAL AND LEGAL DEBATE 143 (Robert M. Baird & Stuart E. Rosenbaum eds., 1997) (emphasis added).
43. See BERGEN EVANS & CORNELIA EVANS, A DICTIONARY OF CONTEMPORARY AMERICAN USAGE at v (1957) ("[O]ne of the most fundamental [facts about language] is that language changes constantly."); see also MOORE, supra note 26, at 202 ("Language . . . is ever-changing: no more settled than the sea or the sky.").
44. These claims are about democratic and constitutional health, and, as such, are as much an appeal to the makers of law and policy as to the judiciary. Legislators bear equal responsibility for fostering constitutional values. See Cass R. Sunstein, Homosexuality and the Constitution, 70 IND. L.J. 1, 23-27 (1994).
45. In his 1955 William James Lecture, J.L. Austin chose marriage as an example of a performative sentence. See J.L. AUSTIN, How To Do THINGS WITH WORDS 5-6 (2d ed. 1975). The example benefitted from the then-uncontroversial context of performative statements about marriage. Austin was able to specify with confidence the circumstances in which a performative sentence regarding marriage would succeed. See id. at 8-9 ("[I]t is essential that I should not already be married with a wife, living, sane and undivorced, and so on . . . .").
46. See infra notes 113-115 and accompanying text.
47. The emerging concern with the death of languages provides an occasion for the articulation of the spiritual features of a minority linguistic "property." See, e.g., Nancy C. Dorian, Book Review, 70 LANGUAGE 797, 800 (1994) (quoting and critiquing the view that "each language still spoken is fundamental to the personal, social and . . . spiritual identity of its speakers"). The issues that cluster around the at-risk nature of "linguistic isolates" differ substantially from those relating to gay marriage speech, in particular the question of the value of assimilation of ethnic minorities and the unfavorable impact of emerging communication technologies on threatened languages, see id. at 798-801, but the core insights about the spiritual value of linguistic richness resonate in the matter of gay marriage speech.
48. See Mae Kuykendall, An Essay On Defined Terms and Cultural Consensus, 13 J.L. & POL. 199 (1997).
49. Id. at 201-02.
50. Slavery was an instance of enforcing linguistic conventions that deprived a group of persons of access to the language of the state or, indeed, of common humanity.
51. 1 U.S.C. § 7, 28 U.S.C. § 1738C (Supp. II 1996).
52. See DOMAs, supra note 22.
53. See, e.g., Carl Weiser, Legislatures Band Against Gay Union; State Rush to Void Hawaiian Precedent, TENNESSEAN, Mar. 30, 1996, at 7 A (describing a proposed Alabama law that would have imposed a $1,000 fine for anyone legally entitled to officiate who performed a same-sex marriage ceremony).
54. Textualism is not entirely at odds with this claim. While plain meaning arguments might freeze the meaning of a previously enacted statute, they do not by their nature argue that old meanings must be reenacted. A textualist could favor legislative clarification of the term "marriage" in state codes to incorporate a changed meaning.
55. See supra notes 29-31 and accompanying text.
56. Professor Mellinkoff posited this principle: "[T]wenty years ago I proposed a thesis: 'that the language used by lawyers [should] agree with the common speech, unless there are reasons for a difference.'" Mellinkoff, supra note 20, at 423 (quoting DAVID MELLINKOFF, THE LANGUAGE OF THE LAW at vii (1963)). See also EVANS & EVANS, supra note 33, at vi ("The best that anyone can do is to say how [a word] is being used, and this is what a grammar should tell us.").
57. See GEORGE ORWELL, NINETEEN EIGHTY-FOUR (1948) (containing a character who is a government philologist and whose job is to narrow the range of thought by creating the new official language, Newspeak). See also Douglas Litowitz, Legal Writing: Its Nature, Limits, and Dangers, 49 MERCER L. REV. 709, 726 (quoting Orwell's character on the goals of Newspeak). While Newspeak is primarily concerned with effacing linguistic heritage, the project of restriction of linguistic resources has equal force when directed at the future of language.
58. See GEORGE ORWELL, NINETEEN EIGHTY-FOUR (1948) (containing a character who is a government philologist and whose job is to narrow the range of thought by creating the new official language, Newspeak). See also Douglas Litowitz, Legal Writing: Its Nature, Limits, and Dangers, 49 MERCER L. REV. 709, 726 (quoting Orwell's character on the goals of Newspeak). While Newspeak is primarily concerned with effacing linguistic heritage, the project of restriction of linguistic resources has equal force when directed at the future of language.
59. "Political language . . . is designed to make lies sound truthful and murder respectable, and to give an appearance of solidity to pure wind." GEORGE ORWELL, Politics and the English Language, in SHOOTING AN ELEPHANT AND OTHER ESSAYS 77, 92 (1950).
60. Jed Rubenfeld, The Right of Privacy, 102 HARV. L. REV. 737 (1989).
61. For example, the poetry of Walt Whitman captures the idea of a democratic voice in the sounds of the commonplace. Whitman wrote and lectured on the importance of an American voice embodied in the spirit of free people: "There is no week nor day nor hour when tyranny may not enter upon this country, if the people lose their supreme confidence in themselves, - and lose their roughness and spirit of defiance." WALT WHITMAN, WALT WHITMAN'S WORKSHOP 58 (Clifton Joseph Furness ed., 1928). Retrospectives of the American literary voice often remark on the intrusion of a rough voice challenging the gentlemanly conventions of Europe. See RALPH WALDO EMERSON, THE BEST OF RALPH WALDO EMERSON: ESSAYS, POEMS, ADDRESSES 22-3 (1941). We have listened too long to the courtly muses of Europe. The spirit of the American free man is already suspected to be timid, imitative, tame . . . . We will walk on our own feet; we will work with our own hands; we will speak our own minds . . . . A nation of men will for the first time exist, because each believes himself inspired by the Divine Soul which also inspires all men. Id. The power of Mark Twain is commonly explained in terms of his freedom from convention and his brashness, "an innocence poised between skepticism and ignorance." James D. Cox, Introduction to MARK TWAIN, LIFE ON THE MISSISSIPPI 13 (1984) (describing the "wild . . . humor in [Twain's] authorial presence that threatened to annihilate conventional moral, aesthetic, and literary values"). Thus the American democratic tradition is composed of an insistent demand for our own voice - to be spoken and to be unshamed. See EVANS & EVANS, supra note 33, at vi (stating that "[t]he common man, even the common educated man, has had no desire to be 'superior' in some mysterious way" and has thereby resisted Latin-based grammatical rules). There is arguably a class element in the willingness of gay men and lesbians to "come out" and in the willingness of same-sex couples to apply the language of matrimony to their lives. The social and economic stakes may be higher for upper middle class persons to make a visible statement that appropriates to their lives the usages of a set of class-encoded gender and caste conventions. See ELIZABETH L. KENNEDY & MADELINE D. DAVIS, BOOTS OF LEATHER, SLIPPERS OF GOLD: THE HISTORY OF A LESBIAN COMMUNITY 87 (1993) (describing working-class lesbian bar culture in the 1930s, 1940s, and 1950s). The most strongly voiced of the coming out stories by lesbians often contain a raw assertion of voice, the sort of sturdy working class claim to resist suppression of the grammar of their lives by economic masters or arbiters of taste. See Julia Penelope, Class and Consciousness, in OUT OF THE CLASS CLOSET: LESBIANS SPEAK 36 (Julia Penelope ed., 1994) (expressing resentment of "demeaning stereotypes and judgments passed on our dialects").
62. For example, the poetry of Walt Whitman captures the idea of a democratic voice in the sounds of the commonplace. Whitman wrote and lectured on the importance of an American voice embodied in the spirit of free people: "There is no week nor day nor hour when tyranny may not enter upon this country, if the people lose their supreme confidence in themselves, - and lose their roughness and spirit of defiance." WALT WHITMAN, WALT WHITMAN'S WORKSHOP 58 (Clifton Joseph Furness ed., 1928). Retrospectives of the American literary voice often remark on the intrusion of a rough voice challenging the gentlemanly conventions of Europe. See RALPH WALDO EMERSON, THE BEST OF RALPH WALDO EMERSON: ESSAYS, POEMS, ADDRESSES 22-3 (1941). We have listened too long to the courtly muses of Europe. The spirit of the American free man is already suspected to be timid, imitative, tame . . . . We will walk on our own feet; we will work with our own hands; we will speak our own minds . . . . A nation of men will for the first time exist, because each believes himself inspired by the Divine Soul which also inspires all men. Id. The power of Mark Twain is commonly explained in terms of his freedom from convention and his brashness, "an innocence poised between skepticism and ignorance." James D. Cox, Introduction to MARK TWAIN, LIFE ON THE MISSISSIPPI 13 (1984) (describing the "wild . . . humor in [Twain's] authorial presence that threatened to annihilate conventional moral, aesthetic, and literary values"). Thus the American democratic tradition is composed of an insistent demand for our own voice - to be spoken and to be unshamed. See EVANS & EVANS, supra note 33, at vi (stating that "[t]he common man, even the common educated man, has had no desire to be 'superior' in some mysterious way" and has thereby resisted Latin-based grammatical rules). There is arguably a class element in the willingness of gay men and lesbians to "come out" and in the willingness of same-sex couples to apply the language of matrimony to their lives. The social and economic stakes may be higher for upper middle class persons to make a visible statement that appropriates to their lives the usages of a set of class-encoded gender and caste conventions. See ELIZABETH L. KENNEDY & MADELINE D. DAVIS, BOOTS OF LEATHER, SLIPPERS OF GOLD: THE HISTORY OF A LESBIAN COMMUNITY 87 (1993) (describing working-class lesbian bar culture in the 1930s, 1940s, and 1950s). The most strongly voiced of the coming out stories by lesbians often contain a raw assertion of voice, the sort of sturdy working class claim to resist suppression of the grammar of their lives by economic masters or arbiters of taste. See Julia Penelope, Class and Consciousness, in OUT OF THE CLASS CLOSET: LESBIANS SPEAK 36 (Julia Penelope ed., 1994) (expressing resentment of "demeaning stereotypes and judgments passed on our dialects").
63. For example, the poetry of Walt Whitman captures the idea of a democratic voice in the sounds of the commonplace. Whitman wrote and lectured on the importance of an American voice embodied in the spirit of free people: "There is no week nor day nor hour when tyranny may not enter upon this country, if the people lose their supreme confidence in themselves, - and lose their roughness and spirit of defiance." WALT WHITMAN, WALT WHITMAN'S WORKSHOP 58 (Clifton Joseph Furness ed., 1928). Retrospectives of the American literary voice often remark on the intrusion of a rough voice challenging the gentlemanly conventions of Europe. See RALPH WALDO EMERSON, THE BEST OF RALPH WALDO EMERSON: ESSAYS, POEMS, ADDRESSES 22-3 (1941). We have listened too long to the courtly muses of Europe. The spirit of the American free man is already suspected to be timid, imitative, tame . . . . We will walk on our own feet; we will work with our own hands; we will speak our own minds . . . . A nation of men will for the first time exist, because each believes himself inspired by the Divine Soul which also inspires all men. Id. The power of Mark Twain is commonly explained in terms of his freedom from convention and his brashness, "an innocence poised between skepticism and ignorance." James D. Cox, Introduction to MARK TWAIN, LIFE ON THE MISSISSIPPI 13 (1984) (describing the "wild . . . humor in [Twain's] authorial presence that threatened to annihilate conventional moral, aesthetic, and literary values"). Thus the American democratic tradition is composed of an insistent demand for our own voice - to be spoken and to be unshamed. See EVANS & EVANS, supra note 33, at vi (stating that "[t]he common man, even the common educated man, has had no desire to be 'superior' in some mysterious way" and has thereby resisted Latin-based grammatical rules). There is arguably a class element in the willingness of gay men and lesbians to "come out" and in the willingness of same-sex couples to apply the language of matrimony to their lives. The social and economic stakes may be higher for upper middle class persons to make a visible statement that appropriates to their lives the usages of a set of class-encoded gender and caste conventions. See ELIZABETH L. KENNEDY & MADELINE D. DAVIS, BOOTS OF LEATHER, SLIPPERS OF GOLD: THE HISTORY OF A LESBIAN COMMUNITY 87 (1993) (describing working-class lesbian bar culture in the 1930s, 1940s, and 1950s). The most strongly voiced of the coming out stories by lesbians often contain a raw assertion of voice, the sort of sturdy working class claim to resist suppression of the grammar of their lives by economic masters or arbiters of taste. See Julia Penelope, Class and Consciousness, in OUT OF THE CLASS CLOSET: LESBIANS SPEAK 36 (Julia Penelope ed., 1994) (expressing resentment of "demeaning stereotypes and judgments passed on our dialects").
64. For example, the poetry of Walt Whitman captures the idea of a democratic voice in the sounds of the commonplace. Whitman wrote and lectured on the importance of an American voice embodied in the spirit of free people: "There is no week nor day nor hour when tyranny may not enter upon this country, if the people lose their supreme confidence in themselves, - and lose their roughness and spirit of defiance." WALT WHITMAN, WALT WHITMAN'S WORKSHOP 58 (Clifton Joseph Furness ed., 1928). Retrospectives of the American literary voice often remark on the intrusion of a rough voice challenging the gentlemanly conventions of Europe. See RALPH WALDO EMERSON, THE BEST OF RALPH WALDO EMERSON: ESSAYS, POEMS, ADDRESSES 22-3 (1941). We have listened too long to the courtly muses of Europe. The spirit of the American free man is already suspected to be timid, imitative, tame . . . . We will walk on our own feet; we will work with our own hands; we will speak our own minds . . . . A nation of men will for the first time exist, because each believes himself inspired by the Divine Soul which also inspires all men. Id. The power of Mark Twain is commonly explained in terms of his freedom from convention and his brashness, "an innocence poised between skepticism and ignorance." James D. Cox, Introduction to MARK TWAIN, LIFE ON THE MISSISSIPPI 13 (1984) (describing the "wild . . . humor in [Twain's] authorial presence that threatened to annihilate conventional moral, aesthetic, and literary values"). Thus the American democratic tradition is composed of an insistent demand for our own voice - to be spoken and to be unshamed. See EVANS & EVANS, supra note 33, at vi (stating that "[t]he common man, even the common educated man, has had no desire to be 'superior' in some mysterious way" and has thereby resisted Latin-based grammatical rules). There is arguably a class element in the willingness of gay men and lesbians to "come out" and in the willingness of same-sex couples to apply the language of matrimony to their lives. The social and economic stakes may be higher for upper middle class persons to make a visible statement that appropriates to their lives the usages of a set of class-encoded gender and caste conventions. See ELIZABETH L. KENNEDY & MADELINE D. DAVIS, BOOTS OF LEATHER, SLIPPERS OF GOLD: THE HISTORY OF A LESBIAN COMMUNITY 87 (1993) (describing working-class lesbian bar culture in the 1930s, 1940s, and 1950s). The most strongly voiced of the coming out stories by lesbians often contain a raw assertion of voice, the sort of sturdy working class claim to resist suppression of the grammar of their lives by economic masters or arbiters of taste. See Julia Penelope, Class and Consciousness, in OUT OF THE CLASS CLOSET: LESBIANS SPEAK 36 (Julia Penelope ed., 1994) (expressing resentment of "demeaning stereotypes and judgments passed on our dialects").
65. For example, the poetry of Walt Whitman captures the idea of a democratic voice in the sounds of the commonplace. Whitman wrote and lectured on the importance of an American voice embodied in the spirit of free people: "There is no week nor day nor hour when tyranny may not enter upon this country, if the people lose their supreme confidence in themselves, - and lose their roughness and spirit of defiance." WALT WHITMAN, WALT WHITMAN'S WORKSHOP 58 (Clifton Joseph Furness ed., 1928). Retrospectives of the American literary voice often remark on the intrusion of a rough voice challenging the gentlemanly conventions of Europe. See RALPH WALDO EMERSON, THE BEST OF RALPH WALDO EMERSON: ESSAYS, POEMS, ADDRESSES 22-3 (1941). We have listened too long to the courtly muses of Europe. The spirit of the American free man is already suspected to be timid, imitative, tame . . . . We will walk on our own feet; we will work with our own hands; we will speak our own minds . . . . A nation of men will for the first time exist, because each believes himself inspired by the Divine Soul which also inspires all men. Id. The power of Mark Twain is commonly explained in terms of his freedom from convention and his brashness, "an innocence poised between skepticism and ignorance." James D. Cox, Introduction to MARK TWAIN, LIFE ON THE MISSISSIPPI 13 (1984) (describing the "wild . . . humor in [Twain's] authorial presence that threatened to annihilate conventional moral, aesthetic, and literary values"). Thus the American democratic tradition is composed of an insistent demand for our own voice - to be spoken and to be unshamed. See EVANS & EVANS, supra note 33, at vi (stating that "[t]he common man, even the common educated man, has had no desire to be 'superior' in some mysterious way" and has thereby resisted Latin-based grammatical rules). There is arguably a class element in the willingness of gay men and lesbians to "come out" and in the willingness of same-sex couples to apply the language of matrimony to their lives. The social and economic stakes may be higher for upper middle class persons to make a visible statement that appropriates to their lives the usages of a set of class-encoded gender and caste conventions. See ELIZABETH L. KENNEDY & MADELINE D. DAVIS, BOOTS OF LEATHER, SLIPPERS OF GOLD: THE HISTORY OF A LESBIAN COMMUNITY 87 (1993) (describing working-class lesbian bar culture in the 1930s, 1940s, and 1950s). The most strongly voiced of the coming out stories by lesbians often contain a raw assertion of voice, the sort of sturdy working class claim to resist suppression of the grammar of their lives by economic masters or arbiters of taste. See Julia Penelope, Class and Consciousness, in OUT OF THE CLASS CLOSET: LESBIANS SPEAK 36 (Julia Penelope ed., 1994) (expressing resentment of "demeaning stereotypes and judgments passed on our dialects").
66. See Penelope, supra note 50.
67. See Martha C. Nussbaum, Platonic Love and Colorado Law: The Relevance of Ancient Greek Norms to Modern Sexual Controversies, 80 VA. L. REV. 1515, 1530 (1994).
68. Id. at 1531.
69. Id. at 1597-1601.
70. Id. at 1537.
71. Professor Nussbaum notes that "we admire [the Greeks] as a successful culture and the source of some of our deepest ideas and most cherished cultural artifacts." Id. at 1598.
72. Baker v. State, No. 98-32 (Vt. argued Nov. 18, 1998).
73. Brief Amicus Curiae, Professors of Legislation and Statutory Interpretation, Baker (No. 98-32).
74. See infra notes 150-154.
75. Professors of Legislation and Statutory Interpretation, supra note 58 (referring to the Commonwealth of Virginia).
76. Referring to evidence that the normative debate about same-sex marriage has produced a linguistic consensus in which a formerly marginal use of the term is normalized, the brief states: "We are uncertain as to [the evidence of usage's] ultimate legal significance." See Brief Amicus Curiae, supra note 58. The brief appears to argue that, at least in Vermont, it is evidence that the marriage provision of the state code is ambiguous. But such an argument shows little sign of holding the day for long, as states re-enact marriage codes to narrow the meaning of marriage for the legal code. See DOMAs, supra note 22.
77. Cf. Austin, supra note 35 at 14 (performative speech that fails analyzed as infelicities).
78. See generally Peter Berger's comparative point about neoorthodoxy in religion: "The tradition is affirmed anew after an interval when it was not affirmed. The problem is, quite simply, that it is very difficult to forget this interval." PETER L. BERGER, THE HERETICAL IMPERATIVE 68 (1979).
79. See NINO, supra note 29 at 124 (discussing role of intersubjective discussion in a deliberative democracy).
80. See supra text accompanying notes 60-61.
81. LEWIS CARROLL, THROUGH THE LOOKING GLASS 133 (1943 ed.) (1870).
82. For a typical conservative critique of "identity politics," see CHRISTOPHER LASCH, THE REVOLT OF THE ELITES AND THE BETRAYAL OF DEMOCRACY 17-19 (1995) (prophesying doom for the "spirit of free inquiry and open debate" under the conditions of identity politics). For a pro-privacy refutation of the argument that privacy should be imagined as protecting identity, on the grounds that claiming an identity as a basis for a right to privacy gives legitimacy to invidious classifications, see generally Rubenfeld, supra note 49, at 782. Rubenfeld argues that resistance to the standardization of identities by state injunction is the heart of privacy, rather than the protection of identities. Id. at 805. Janet Halley also makes a strong argument that gay litigative groups should avoid making identity arguments that adopt a view of gay people as a minority distinguished by a stable, natural identity. Janet E. Halley, Sexual Orientation and the Politics of Biology: A Critique of the Argument from Immutability, 46 STAN. L. REV. 503, 503 (1994).
83. For a typical conservative critique of "identity politics," see CHRISTOPHER LASCH, THE REVOLT OF THE ELITES AND THE BETRAYAL OF DEMOCRACY 17-19 (1995) (prophesying doom for the "spirit of free inquiry and open debate" under the conditions of identity politics). For a pro-privacy refutation of the argument that privacy should be imagined as protecting identity, on the grounds that claiming an identity as a basis for a right to privacy gives legitimacy to invidious classifications, see generally Rubenfeld, supra note 49, at 782. Rubenfeld argues that resistance to the standardization of identities by state injunction is the heart of privacy, rather than the protection of identities. Id. at 805. Janet Halley also makes a strong argument that gay litigative groups should avoid making identity arguments that adopt a view of gay people as a minority distinguished by a stable, natural identity. Janet E. Halley, Sexual Orientation and the Politics of Biology: A Critique of the Argument from Immutability, 46 STAN. L. REV. 503, 503 (1994).
84. See Kenneth L. Karst, Myths of Identity: Individual and Group Portraits
85. Focus on language, rather than identities, thus weakens the reasoning that "a ban on same-sex marriages is . . . close enough to the mark [for intermediate scrutiny] . . . since virtually all applicants for same-sex marriages will be homosexuals [and] . . . forbidding such marriages is a proxy for withholding legal recognition for homosexual relationships." Craig M. Bradley, The Right Not To Endorse Gay Rights: A Reply to Sunstein, 70 IND. L.J. 29, 34 (1994).
86. See David Cole & William N. Eskridge, From Hand-Holding to Sodomy: First Amendment Protection of Homosexual (Expressive) Conduct, HARV. C.R.-C.L. L. REV. 319, 328 (1994) (balancing an enumeration of expressive harms to individuals of sodomy laws and the military ban on "telling" with the point that the "protection of individual autonomy and liberty [fostered by the First Amendment] engenders collective benefits in the body politic" (emphasis added)).
87. See Karst, supra note 68, at 294 (referring to the desire of those in dominant positions to believe in the legitimacy of their status).
88. See JOHN BOSWELL, SAME-SEX UNIONS IN PREMODERN EUROPE (1994).
89. See, e.g., William N. Eskridge, A History of Same-Sex Marriage, 79 VA. L. REV. 1419, 1422 (1993) (referring to the suppression of same-sex marriage by "[c]ultures, such as that of the recent West").
90. Cf. Koppelman, supra note 14, at 56, n.25 (arguing that historical evidence cannot refute morally based arguments that marriage is inherently heterosexual).
91. See Lawrence M. Solan, Does the Legal System Need Experts in English Syntax?, in THE LANGUAGE SCIENTIST AS EXPERT IN THE LEGAL SETTING 107 (Robert W. Rieber & William A. Stewart eds., 1990).
92. Cf. Toni Massaro, Gay Rights, Thick and Thin, 49 STAN. L. REV. 45, 108 (1996) (citing RICHARD RORTY, CONTINGENCY, IRONY AND SOLIDARITY at xvi (1989), to support the proposition that "deothering" gay men and lesbians through description of them, as well as redescription of "us," is a task "not for theory but for genres such as ethnography, the journalist's report, the comic book, the docudrama, and, especially, the novel").
93. Cf. Toni Massaro, Gay Rights, Thick and Thin, 49 STAN. L. REV. 45, 108 (1996) (citing RICHARD RORTY, CONTINGENCY, IRONY AND SOLIDARITY at xvi (1989), to support the proposition that "deothering" gay men and lesbians through description of them, as well as redescription of "us," is a task "not for theory but for genres such as ethnography, the journalist's report, the comic book, the docudrama, and, especially, the novel").
94. Typical marriage quotations in compilations consistently position the male as human, faced with a confounding choice. The lesson of history is archaic - a set of linguistic conventions that has faded rapidly since the 1950s in the United States. See, e.g., quotations in RESPECTFULLY QUOTED: A DICTIONARY OF QUOTATIONS FROM THE LIBRARY OF CONGRESS (Suzy Platt ed., 1992): "He that hath wife and children hath given hostage to fortune, for they are impediments to great enterprises . . . ." FRANCIS BACON, OF MARRIAGE AND THE SINGLE LIFE, THE ESSAYS ON COUNSEL CIVIL AND MORAL OF FRANCIS BACON 20, 22 (Fred A. Howe ed., 1908). "I have always thought that every woman should marry, and no man." BENJAMIN DISRAELI, LOTHAIR 109 (1870). "A gentleman who has been very unhappy in marriage, married immediately after his wife died: Johnson said, it was the triumph of hope over experience." JOHN BOSWELL, BOSWELL'S LIFE OF JOHNSON 128 (L.F. Powell ed., rev. ed. 1934).
95. Typical marriage quotations in compilations consistently position the male as human, faced with a confounding choice. The lesson of history is archaic - a set of linguistic conventions that has faded rapidly since the 1950s in the United States. See, e.g., quotations in RESPECTFULLY QUOTED: A DICTIONARY OF QUOTATIONS FROM THE LIBRARY OF CONGRESS (Suzy Platt ed., 1992): "He that hath wife and children hath given hostage to fortune, for they are impediments to great enterprises . . . ." FRANCIS BACON, OF MARRIAGE AND THE SINGLE LIFE, THE ESSAYS ON COUNSEL CIVIL AND MORAL OF FRANCIS BACON 20, 22 (Fred A. Howe ed., 1908). "I have always thought that every woman should marry, and no man." BENJAMIN DISRAELI, LOTHAIR 109 (1870). "A gentleman who has been very unhappy in marriage, married immediately after his wife died: Johnson said, it was the triumph of hope over experience." JOHN BOSWELL, BOSWELL'S LIFE OF JOHNSON 128 (L.F. Powell ed., rev. ed. 1934).
96. Typical marriage quotations in compilations consistently position the male as human, faced with a confounding choice. The lesson of history is archaic - a set of linguistic conventions that has faded rapidly since the 1950s in the United States. See, e.g., quotations in RESPECTFULLY QUOTED: A DICTIONARY OF QUOTATIONS FROM THE LIBRARY OF CONGRESS (Suzy Platt ed., 1992): "He that hath wife and children hath given hostage to fortune, for they are impediments to great enterprises . . . ." FRANCIS BACON, OF MARRIAGE AND THE SINGLE LIFE, THE ESSAYS ON COUNSEL CIVIL AND MORAL OF FRANCIS BACON 20, 22 (Fred A. Howe ed., 1908). "I have always thought that every woman should marry, and no man." BENJAMIN DISRAELI, LOTHAIR 109 (1870). "A gentleman who has been very unhappy in marriage, married immediately after his wife died: Johnson said, it was the triumph of hope over experience." JOHN BOSWELL, BOSWELL'S LIFE OF JOHNSON 128 (L.F. Powell ed., rev. ed. 1934).
97. Typical marriage quotations in compilations consistently position the male as human, faced with a confounding choice. The lesson of history is archaic - a set of linguistic conventions that has faded rapidly since the 1950s in the United States. See, e.g., quotations in RESPECTFULLY QUOTED: A DICTIONARY OF QUOTATIONS FROM THE LIBRARY OF CONGRESS (Suzy Platt ed., 1992): "He that hath wife and children hath given hostage to fortune, for they are impediments to great enterprises . . . ." FRANCIS BACON, OF MARRIAGE AND THE SINGLE LIFE, THE ESSAYS ON COUNSEL CIVIL AND MORAL OF FRANCIS BACON 20, 22 (Fred A. Howe ed., 1908). "I have always thought that every woman should marry, and no man." BENJAMIN DISRAELI, LOTHAIR 109 (1870). "A gentleman who has been very unhappy in marriage, married immediately after his wife died: Johnson said, it was the triumph of hope over experience." JOHN BOSWELL, BOSWELL'S LIFE OF JOHNSON 128 (L.F. Powell ed., rev. ed. 1934).
98. See RESPECTFULLY QUOTED: A DICTIONARY OF QUOTATIONS FROM THE LIBRARY OF CONGRESS, supra note 77.
99. See, e.g., ELLEN FEIN & SHERRIE SCHNEIDER, THE RULES: TIME-TESTED SECRETS FOR CAPTURING THE HEART OF MR. RIGHT (1995).
100. See, e.g., Mary Louise Fellows, et al., Committed Partners and Inheritance: An Empirical Study, 16 LAW & INEQ. J. 1 (1998).
101. See, e.g., 42 U.S.C. § 402(b), (c) (1994) (defining "wife" and "husband" for the purpose of determining entitlement to old-age and survivor social security benefits); see also Jill Elaine Hasday, Federalism and the Family Reconstructed, 45 UCLA L. REV. 1297, 1384 (1998); Chambers, supra note 12.
102. See, e.g., ANDREW KOPPELMAN, ANTIDISCRIMINATION LAW AND SOCIAL EQUALITY (1996); Andrew Koppelman, The Miscegenation Analogy: Sodomy Law as Sex Discrimination, 98 YALE L.J. 145 (1988); see also Andrew Koppelman, Why Discrimination Against Lesbians and Gay Men Is Sex Discrimination, 69 N.Y.U. L. REV. 197 (1994).
103. See, e.g., ANDREW KOPPELMAN, ANTIDISCRIMINATION LAW AND SOCIAL EQUALITY (1996); Andrew Koppelman, The Miscegenation Analogy: Sodomy Law as Sex Discrimination, 98 YALE L.J. 145 (1988); see also Andrew Koppelman, Why Discrimination Against Lesbians and Gay Men Is Sex Discrimination, 69 N.Y.U. L. REV. 197 (1994).
104. See, e.g., ANDREW KOPPELMAN, ANTIDISCRIMINATION LAW AND SOCIAL EQUALITY (1996); Andrew Koppelman, The Miscegenation Analogy: Sodomy Law as Sex Discrimination, 98 YALE L.J. 145 (1988); see also Andrew Koppelman, Why Discrimination Against Lesbians and Gay Men Is Sex Discrimination, 69 N.Y.U. L. REV. 197 (1994).
105. See Cass R. Sunstein, Foreword: Leaving Things Undecided, 110 HARV. L. REV. 4. 96-99 (1996) (applying the case for "judicial minimalism" to possibility of equal protection challenge to laws barring same-sex marriage); see also Cass R. Sunstein, supra note 34 (expressing a cautionary tone about role of federal courts).
106. But see Marc A. Fajer, With All Deliberate Speed? A Reply to Professor Sunstein, 70 IND. L.J. 39 (1994).
107. See Chai R. Feldblum, Sexual Orientation, Morality and the Law: Devlin Revisited, 57 U. PITT. L. REV. 237 (1996) (reviewing equal protection analysis); see also Note, The Constitutional Status of Sexual Orientation: Homosexuality as a Suspect Classification, 98 HARV. L. REV. 1285 (1985).
108. See Chai R. Feldblum, Sexual Orientation, Morality and the Law: Devlin Revisited, 57 U. PITT. L. REV. 237 (1996) (reviewing equal protection analysis); see also Note, The Constitutional Status of Sexual Orientation: Homosexuality as a Suspect Classification, 98 HARV. L. REV. 1285 (1985).
109. See Feldblum, supra note 84, at 312-39 (discussing Lord Devlin's view of the state's role in regulating "private morality"); see also Finnis, supra note 17, at 1 (state's role in punishing "immoral sexual acts" by consenting persons).
110. There is a line of writing by proponents of both gay rights and gay marriage arguing that gay same-sex intimacy is morally good and should be defended on that ground. See, e.g., Michael J. Sandel, Moral Argument and Liberal Toleration: Abortion and Homosexuality, 77 CAL. L. REV. 521 (1989); see also Feldblum, supra note 84, at 331-35 (arguing that "gay love is good"). Moral arguments that same-sex sex is immoral are numerous. See, e.g., Finnis, supra note 17.
111. See, e.g., ROBERT WINTEMUTE, SEXUAL ORIENTATION AND HUMAN RIGHTS: THE UNITED STATES CONSTITUTION, THE EUROPEAN CONVENTION, AND THE CANADIAN CHARTER (1995); David A.J. Richards, Sexual Autonomy and the Constitutional Right to Privacy: A Case Study in Human Rights and the Unwritten Constitution, 30 HASTINGS L.J. 957 (1979); Leo Sullivan, Comment, Same Sex Marriage and the Constitution, 6 U.C. DAVIS L. REV. 275 (1973): Cass R. Sunstein, Sexual Orientation and the Constitution: A Note on the Relationship Between Due Process and Equal Protection, 55 U. CHI. L. REV. 1161 (1988).
112. See, e.g., ROBERT WINTEMUTE, SEXUAL ORIENTATION AND HUMAN RIGHTS: THE UNITED STATES CONSTITUTION, THE EUROPEAN CONVENTION, AND THE CANADIAN CHARTER (1995); David A.J. Richards, Sexual Autonomy and the Constitutional Right to Privacy: A Case Study in Human Rights and the Unwritten Constitution, 30 HASTINGS L.J. 957 (1979); Leo Sullivan, Comment, Same Sex Marriage and the Constitution, 6 U.C. DAVIS L. REV. 275 (1973): Cass R. Sunstein, Sexual Orientation and the Constitution: A Note on the Relationship Between Due Process and Equal Protection, 55 U. CHI. L. REV. 1161 (1988).
113. See, e.g., ROBERT WINTEMUTE, SEXUAL ORIENTATION AND HUMAN RIGHTS: THE UNITED STATES CONSTITUTION, THE EUROPEAN CONVENTION, AND THE CANADIAN CHARTER (1995); David A.J. Richards, Sexual Autonomy and the Constitutional Right to Privacy: A Case Study in Human Rights and the Unwritten Constitution, 30 HASTINGS L.J. 957 (1979); Leo Sullivan, Comment, Same Sex Marriage and the Constitution, 6 U.C. DAVIS L. REV. 275 (1973): Cass R. Sunstein, Sexual Orientation and the Constitution: A Note on the Relationship Between Due Process and Equal Protection, 55 U. CHI. L. REV. 1161 (1988).
114. See, e.g., ROBERT WINTEMUTE, SEXUAL ORIENTATION AND HUMAN RIGHTS: THE UNITED STATES CONSTITUTION, THE EUROPEAN CONVENTION, AND THE CANADIAN CHARTER (1995); David A.J. Richards, Sexual Autonomy and the Constitutional Right to Privacy: A Case Study in Human Rights and the Unwritten Constitution, 30 HASTINGS L.J. 957 (1979); Leo Sullivan, Comment, Same Sex Marriage and the Constitution, 6 U.C. DAVIS L. REV. 275 (1973): Cass R. Sunstein, Sexual Orientation and the Constitution: A Note on the Relationship Between Due Process and Equal Protection, 55 U. CHI. L. REV. 1161 (1988).
115. See, e.g., Germaine Winnick Willett, Equality Under the Law or Annihilation of Marriage and Morals? The Same-Sex Marriage Debate, 73 IND. L.J. 355 (1997) (reviewing the standard lines of legal argument in favor of same-sex marriage).
116. See Toni M. Massaro, Gay Rights, Thick and Thin, 49 STAN. L. REV. 45 (1996) (advocating the tactical superiority of "thin" rather than "thick" arguments for gay rights).
117. See Judith Martin, Miss Manners: Dining with a View or Two, WASH. POST, Sept. 2, 1998, at D7. Her advice was influenced, however, by an assumption that "the discussion of gay marriage has to do with whether it should be legal, not how it is consummated." Id. But see George & Bradley, supra note 15 (organizing analysis of same-sex marriage around such terms as "nonmarital orgasmic acts," "oral or anal sex acts," "penile-vaginal acts," "consummation," "individual gratification," and the like). Perhaps Miss Manners would counsel caution in including the new natural law scholars at one's family dinner hour.
118. See Tasneem A. Grace, Fans Say "Springer" Is a Refreshing Slap in the Face, POST-STANDARD (Syracuse, N.Y.), May 7, 1998, at C1.
119. See, e.g., Symposium on Sexual Orientation, 9 NOTRE DAME J.L. ETHICS & PUB. POL'Y 1 (1995).
120. See, e.g., Hatewatch: Anti-Gay Groups (visited Sept. 2, 1998) (links to several anti-gay groups). Examples of anti-gay sites include "S.T.R.A.I.G.H.T." (Society to Remove All Immoral Godless Homosexual Trash) and "God Hates Fags."
121. See, e.g., VICTORIA A. BROWNWORTH, Tying the Knot or the Hangman's Noose: The Case Against Marriage, in TOO QUEER: ESSAYS FROM A RADICAL LIFE 133 (1996) (asserting that "these two institutions [the military and marriage] . . . are predicated on the most repressive, oppressive, and dangerous aspects of society [and] are inherently heterosexual").
122. See generally THOMAS R. NILSEN, ETHICS OF SPEECH COMMUNICATION (1966) (summarizing standards for judging the ethics of discourse).
123. In 1991, the Cracker Barrel restaurants announced a policy of refusing to employ homosexuals on the grounds that it was "inconsistent with [Cracker Barrel's] concept and values . . . and with those of [its] customer base." See Norma Wagner, Gay Activists Target Norcross Cracker Barrel, ATLANTA J. & ATLANTA CONST., Mar. 4, 1991, at D2.
124. See, e.g., Nancy D. Polikoff, We Will Get What We Ask For: Why Legalizing Gay and Lesbian Marriage Will Not Dismantle the Legal Structure of Gender in Every Marriage, 79 VA. L. REV. 1535 (1993).
125. See Paula Ettelbrick, Since When is Marriage a Path to Liberation?, OUT/LOOK NAT'L GAY & LESBIAN Q., Fall 1989, reprinted in SAME SEX MARRIAGE: THE MORAL AND LEGAL DEBATE, supra note 32, at 164.
126. See Paula Ettelbrick, Since When is Marriage a Path to Liberation?, OUT/LOOK NAT'L GAY & LESBIAN Q., Fall 1989, reprinted in SAME SEX MARRIAGE: THE MORAL AND LEGAL DEBATE, supra note 32, at 164.
127. 99 See, e.g.. Chambers, supra note 12, at 485-91 (considering specific practical doubts by gays and lesbians about the benefits of same-sex marriage). One of the primary litigators on behalf of gay marriage rights has also made the obligatory bow to radical objections to marriage. See Evan Wolfson, Crossing the Threshold: Equal Marriage Rights for Lesbians and Gay Men and the Intra-Community Critique, 21 N.Y.U. REV. L. & Soc. CHANGE 567, 570-71 (1995) ("I join here in this intra-community discussion despite my belief that the time for a debate over whether lesbians and gay men should seek our equal marriage rights has passed . . . . [I]t seems to me that we must now unite . . . .").
128. See Ruth Colker, Marriage, 3 YALE J.L. & FEMINISM 321 (1991) (in which Colker concedes her participation in a heterosexual marriage and supports opening up marriage to lesbian and gays but does not encourage the lesbian and gay community to make such legislation a high priority).
129. This Article, with its focus on the medium of language and the temptation to use terms such as "speech act," can be placed near literary theory concerning the social construction of language and the terminology of speech act theory. While all of this lurks in the background and carries potential for developing or altering insights in this Article, over-intellectualizing is at odds with the effort of this Article to evoke a constitutional tradition that is best understood through reflecting on the anti-democratic consequences of disregard of speech grounded in the lives of citizens and which may be effectuated by the use of common sense and goodwill in legislative bodies unconcerned with literary theory.
130. By engaging respectfully with these arguments, Professor Koppelman has forcefully demonstrated their ultimate failure. See Koppelman, supra note 14, at 92-95.
131. John Finnis affirmatively attacks the perceptual capacity and the speech capacity of gay persons to create insights about the good of their lives, arguing that same-sex sexual relationships are destructive to the personalities of the individuals involved. See Finnis, supra note 17, at 1067. See also Nussbaum, supra note 52, at 1525 (discussing Finnis' views, drawing primarily on his affidavit provided in the Colorado Amendment 2 case). Finnis' claim is derived from a view of the unique capacity of male and female bodies, when united, to perform a "reproductive-type" act. See, e.g., George & Bradley, supra note 15, at 301-02. This view is also softened by occasional concessions ("whatever the generous hopes and dreams and thoughts of giving with which some same-sex partners may surround their sexual acts" Id. at 314). Nonetheless, the nature of the claim neglects both self-reporting and self-knowledge as a source of insight. Despite its philosophical rigor and partially respectful tone, the natural law work of Catholic scholars appears at first blush to be a throw-back to the discredited work of psychiatric professionals, whose generalizations about individuals with an attraction to the same sex were based on an absence of contact, or knowledge about, the majority of "homosexuals," that is, those who had not sought psychiatric treatment. See RONALD BAYER, HOMOSEXUALITY AND AMERICAN PSYCHIATRY: THE POLITICS OF DIAGNOSIS (1981). Koppelman has provided distinctions, however, that suggest that Professor Finnis should not be assimilated into the older psychiatric pathologizing of homosexuality. See Koppelman, supra note 14, at 84.
132. See Finnis, supra note 17, at 1067; Nussbaum summarizes Finnis's response to evidence from Greek texts of the goods that arise from same-sex sexual relationships as the bare assertion that "[such] people are in the grip of illusion." Nussbaum, supra note 52, at 1601. Nussbaum also describes Finnis, in his Colorado affidavit, as "individuat[ing] actions extensionally, not taking into account the thoughts of the parties about the son of act they are committing." Id. at 1602.
133. See Butler, supra note 5, at 853-60 (describing the emergence of gay narratives into the public arena).
134. See Linda C. McClain, Toleration, Autonomy, and Governmental Promotion of Good Lives: Beyond "Empty" Toleration to Toleration as Respect, 59 OHIO ST. L.J. 19 (1998) (arguing for a model of toleration as respect).
135. In the Roman Catholic Church, a marriage arises by the couple's act of marrying one another, not through any statement by the presiding priest, such as, "I now marry you." "A Roman Catholic priest at a marriage ceremony will never say, 'With the authority vested in me, I now pronounce you husband and wife.' It [is] not his pronouncement, it [is] the couple who marry one another." Father Robert L. Arpin, in LESBIAN AND GAY MARRIAGE: PRIVATE COMMITMENTS, PUBLIC CEREMONIES, supra note 6, at 241, 244. See also AUSTIN, supra note 35, at 5-6. Cf. Tyldesley, infra note 180 and accompanying text.
136. See Peter Meijes Tiersma, The Judge as Linguist, 27 LOY. L.A. L. REV. 269, 269 (1993) (emphasizing that "[l]anguage is a quintessential human characteristic").
137. But see Gustav Niebuhr, Baptists Amend Beliefs on Family, N.Y. TIMES, June 10, 1998, at A1 (reporting Southern Baptist Convention's declaration that a woman should submit herself graciously to her husband's leadership).
138. See DAVIS, supra note 9. In constructing her argument about family autonomy and "Motivational Stories," Professor Davis compiles historical accounts of "abolitionist weddings" in which women who were active in abolition politics entered into marriages in conjunction with public ceremonies that affirmed values of equality and autonomy for women and rejected the state laws of marriage that subjected women to the loss of legal personality. Professor Davis tellingly comments on the wedding of Lucy Stone and Henry Blackwell: "The wedding was intended as a public political act." Id. at 47.
139. The [marriage] ceremony was symbolic, so we thought it was important that our symbols be correct and right on. We wrote everything, with the exception of the rabbi's sermon. We wrote from our hearts, and that involved a tremendous amount of soul-searching, and rewrites, and time." David Craig, in LESBIAN AND GAY MARRIAGE: PRIVATE COMMITMENTS, PUBLIC CEREMONIES, supra note 6, at 99, 103.
140. See, e.g., LASCH, supra note 67, at 17-19 (decrying balkanization of opinion).
141. See DAVIS, supra note 9, at 47 (confirming the democratic significance of wedding ceremonies and situating the confirmation in the activities of a historical vital instance of American democracy as an agent for change, self governance, and human enrichment).
142. See id.
143. See John Witte, Jr., Consulting a Living Tradition: Christian Heritage of Marriage and Family, 1113 CHRISTIAN CENTURY 1108 (1996); see also Jana B. Singer, The Privatization of Family Law, 1992 Wis. L. REV. 1443 (arguing that family law has become increasingly privatized over the last 25 years).
144. See John Witte, Jr., Consulting a Living Tradition: Christian Heritage of Marriage and Family, 1113 CHRISTIAN CENTURY 1108 (1996); see also Jana B. Singer, The Privatization of Family Law, 1992 Wis. L. REV. 1443 (arguing that family law has become increasingly privatized over the last 25 years).
145. See CEREMONIES OF THE HEART: CELEBRATING LESBIAN UNIONS 133 (Becky Butler ed., 1990) ("We changed the vows a little and put in nonsexist language, but for the most part it was a traditional church wedding.").
146. "I like stretching the meaning of the term [marriage], taking a term that has traditionally been heterosexual and changing the meaning for us." Frances Fuchs, in LESBIAN AND GAY MARRIAGE: PRIVATE COMMITMENTS, PUBLIC CEREMONIES, supra note 6 at 189, 191.
147. For example, see the nineteenth-century realist novel by WILLIAM DEAN HOWELLS, THE RISE OF LAPHAM 152-89 (Don L. Cook ed., 1982) (1884) (containing a famous dinner party scene in which the pretensions of a paint manufacturer to rise into Boston Society are disastrously undone by his lack of understanding of the social customs of the class he is attempting to enter and the social unease and incongruity that results).
148. Sylvia Law argued 10 years ago that the thinking and speaking of gay people and women about their experience creates "new voices" with an impact on religious and scientific thought on homosexual behavior. See Sylvia A. Law, Homosexuality and the Social Meaning of Gender, 1988 WIS. L. REV. 187, 187. Referring to a "new understanding" generated by collective consciousness-raising of women and gay people, see id. at 206, she highlighted the effect of the mainstream media on sexual openness, see id. at 207. The factors constructing such voice have only intensified and accumulated during the last 10 years. The Unsayers undertake to delete the social meanings constructed and altered by the record of contemporary, intensely voiced democratic speech. While the ability to coerce the lives of gay people has substantially dissipated, as well as the ability to erase the presence of gay people, see id. at 212, Unsayers still attempt to suppress signs in the public record of the voice that has changed mainstream speech.
149. See AUSTIN, supra note 35, at 14.
150. See Richard D. Mohr, The Case for Gay Marriage, 9 NOTRE DAME J.L. ETHICS & PUB. POL'Y 215, 220 n.10 (1995) (enumerating cases that treated gay claims to marry "dismissively," because gay marriage was definitionally impossible).
151. See George & Bradley, supra note 15, at 301, 305 (arguing that the intrinsic value of marriage is realized by sexual acts of a reproductive nature).
152. See Mohr, supra note 121, at 221 (describing the "definitional failure" in state codes of marriage).
153. See AUSTIN, supra note 35, at 14-15. The six conditions are (1) participation in a conventional procedure that includes the utterance of specific words, (2) the participation of the appropriate persons and existence of particular circumstances, (3) correct execution of the procedure by all participants, (4) complete execution of the procedure by all participants, (5) participants actually have the requisite thoughts and feelings and intend to go through with the requirements, and (6) participants subsequently conduct themselves according to the requirements.
154. See supra text accompanying notes 110-112.
155. AUSTIN, supra note 35, at 14-15.
156. Id. at 16.
157. See BOSWELL, supra note 72, at 9 ("It is nearly impossible to formulate in a precise and generally acceptable way what is meant by 'marriage,' either by modern speakers or in ancient texts." (citing Ellen Kandoian, Cohabitation, Common Law Marriage, and the Possibility of a Shared Moral Life, 75 GEO. L.J. 1829, 1861 (1987), which states that "[t]here can be no single answer to the question, what does marriage mean; each culture must seek its own answer.")).
158. See PERRY LUBBOCK, THE CRAFT OF FICTION 1-5 (1957) (describing the perceptual impossibility of contemplating the form of a novel).
159. See, e.g., DAVIS, supra note 9, at 6 (noting impossibility of capturing history and culture in their complexity) (citing Louis O. Mink, Narrative Form as a Cognitive Instrument, in THE WRITING OF HISTORY: LITERARY FORM AND HISTORICAL UNDERSTANDING 129, 135-41 (Robert H. Canary & Henry Kozicki eds., 1978)).
160. A well-cherished and equally well-worn joke from recent times belonged to the comedian Henny Youngman: "Take my wife - please!!"
161. Indeed, in the author's personal memory, these binary concepts of marriage and gender were explained as conveying social information about the understandings of Clute, Texas in 1953. Adults in Clute were married and their sex was identified with their marital title. See Telephone Interview with Mary E. Kuykendall (Feb. 7, 1999). My family's neighbor, Mr. LaBeth, was a man, a husband, and a father. Our other neighbor, Mrs. LaBeth, was a woman, a wife, and a mother. It was important to remember to call him "Mr." and call her "Mrs." Mr. LaBeth's younger brother was not married. We were told to call him "Bo." The distinctions required memorization by the initiate and led to embarrassment and hesitation in addressing or referring to either of the LaBeths and utter refusal to call an adult "Bo." With repeated personal practice aimed at complying with the linguistic authority of Clute adults, the sense of novelty and the perception that adults had arbitrary power to mandate odd distinctions dissipated because of the pervasiveness of the adult usage in Clute. Yet, in rolling the strange phrases over my tongue, there was a lurking sense that the language was mine and, with the experience and command I would accumulate as a speaker, someday I would find my own words to describe the world my parents were interpreting for me.
162. University of Michigan hospital form.
163. Assuredly, egalitarian marriages exist in which women do not see their circumstance as enclosure. Nonetheless, contemporary understandings include that element of the arrangement between men and women in some marriages. When a man works and his wife remains at home, it is common that her friends visit during the day and leave in late afternoon to avoid interfering with the evening hours. This practice is a remnant of an earlier clear understanding of women's status in marriages. See, e.g., NORMA BASCH, FRAMING AMERICAN DIVORCE: FROM THE REVOLUTIONARY GENERATION TO THE VICTORIANS 99 (1999) (quoting Thomas Jefferson's view that a wife was "confined & subject").
164. The significance is reinforced in adults, see id. For a discussion of the way such significance is reinforced in children, see supra note 132.
165. Variations reported to have occurred recently in Tomball, Texas, include, "Where's the boss?" and "Where's the man?" Telephone Interview with Mary E. Kuykendall (July 15, 1997). Such a usage has deep roots. See, e.g., BOSWELL, supra note 72, at 11 ("A further complication in analyzing [Greek terminology regarding marriage] is presented by the fact that the common words for 'husband' and 'wife' were simply the nouns for 'man' and 'woman' (cf. English, 'I now pronounce you man and wife.').").
166. In a telephone call received in Ann Arbor, Michigan, a salesman of aluminum siding asked the female answering the phone, "Is the man of the house going to be home tonight?" To the response, "Why are you calling?," the man answered, "I would like to make an appointment with you and your husband to discuss aluminum siding for your home." Telephone conversation between Cheryl Zupan and salesman (Sept. 26, 1998).
167. A reported rebuttal that occurred in Alpharetta, Georgia, a suburb of Atlanta, approximately six years ago took the form of a vociferous statement concerning comparative earning power and mastery of mechanical objects in the household. A salesperson rang the doorbell. The resident of the household, Londi Sue Harmon, answered. The salesperson said he would like to demonstrate a vacuum cleaner to her and her husband. He asked if her husband was "presently" home. Ms. Harmon asked, "Why do you need to speak to my husband?" The salesperson said he wanted to explain the financing and operation of the vacuum cleaner to the "breadwinner" of the household. Ms. Harmon responded by saying that she made twice as much money as her husband, not to mention that he was "clueless" as to the operation of a vacuum cleaner. She then closed the door and ended the encounter. See Interview with Cheryl Zupan in Ann Arbor, Mich. (Sept. 25, 1998). At one time, the salesperson, today's reliquary of speech, embodied a cultural confidence that rendered the replies of women exercises in a script of submission, requiring cooperation in ritualized acknowledgments to strangers of the presumptive presence in their homes of male sovereigns. Women cooperated in the forms of Saying and Knowing that affirmed a model of marriage infused with a language and daily discourse of male domination. Attempts at the implementation of such discourse in day-to-day encounters persist, but are frequently rebuffed in salty exchanges fueled by the new forms of Saying and Knowing that belong to average women. Only the salespersons know whether there are sufficient vestiges of the script to render their gendered locutions cost-effective, despite the attendant losses of good will and the predictable linguistic failure. Plainly, for some, linguistic failure is a choice made in defiance of practicality or the good of harmony.
168. This piece of social knowledge was explained to me sometime in the 1950s in small-town Texas. Such a marriage has been referred to as an "Ozzie and Harriet" marriage. A child-bearing marriage of age peers maintains a hold on the imagination and thus on usage, with a persisting sense that children are deprived of an entitlement if they are not nurtured in such a marriage and a hardy sense that the unilateral termination of such a marriage creates injustice to the spouse, particularly if the unilaterally terminating spouse is male, and to the children, particularly if the unilaterally terminating spouse is female.
169. See Loving v. Virginia, 388 U.S. 1 (1967). Loving can stand for the principle of state neutrality and the autonomy of two individuals to invest their relationship with meanings and legal consequences carried by the term "marriage." However, the constitutional significance of the capacity of individuals to create meanings associated with the intimacy and protection of marriage is evoked throughout constitutional discourse. See, e.g., Turner v. Safley, 482 U.S. 78 (1987) (regarding right of prisoner to marry); Zablocki v. Redhail, 434 U.S. 374 (1978) (involving right of deadbeat dad to marry); Meyer v. Nebraska, 262 U.S. 390 (1923) (regarding right to marry, establish a home, and bring up children).
170. See, e.g., Covenant Marriage Act, LA. CIV. CODE ANN. art. 102 (West 1998).
171. This definition of marriage is enshrined in the Encyclopaedia Britannica of that era: "Marriage . . . may be defined . . . (b) as a physical, legal and moral union between man and woman in complete community of life for the establishment of a family." ENCYCLOPAEDIA BRITANNICA (11th ed. 1911).
172. See KATHARINE T. BARTLETT, GENDER AND LAW: THEORY, DOCTRINE, COMMENTARY 22 (Aspen 1993) (citing SIR MATTHEW HALE, 1 THE HISTORY OF THE PLEAS OF THE CROWN 628 (1 Am. ed. 1847) (1736)) ("[T]he lawful husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband, which she cannot retract.").
173. See KATHARINE T. BARTLETT, GENDER AND LAW: THEORY, DOCTRINE, COMMENTARY 22 (Aspen 1993) (citing SIR MATTHEW HALE, 1 THE HISTORY OF THE PLEAS OF THE CROWN 628 (1 Am. ed. 1847) (1736)) ("[T]he lawful husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband, which she cannot retract.").
174. See Loving, 388 U.S. 1; see also Meyer, 262 U.S. 390.
175. It is of course true that the core usages concerning marriage do tolerate some restrictions on formal access to the status as granted by the state. Consanguinity is the traditional basis of a restriction recognized in state statutes. See OTTENHEIMER, supra note 11, at 19-41.
176. For example, the requirement that men support their families is as a formal matter a gender-neutral requirement of financial responsibility. Rules against sex discrimination have invalidated differential treatment of spouses, in matters such as pensions, based on sex. Men may now be conceptualized as, and given the legal benefits of being, dependents. See, e.g., Orr v. Orr, 440 U.S. 268 (1979) (requiring that alimony be gender neutral). The doctrine of necessaries is a good example of courts' struggle over the old gender-related support doctrine. Under common law, a husband had a duty to support his wife, which was not reciprocal. The husband provided support and the wife provided services. Under the doctrine of necessaries, a third party who provided necessaries for the wife could recover from the husband. Recently courts have struggled with the gendered aspect of the doctrine. See, e.g., North Ottawa Community Hosp. v. Kieft, 578 N.W.2d 267 (Mich. 1998) (discarding the doctrine). Other courts have revised the doctrine to be gender neutral. See, e.g., North Carolina Baptist Hosps. v. Harris, 354 S.E.2d 471 (N.C. 1987).
177. See, e.g., WILLIAM J. BENNETT, THE DEATH OF OUTRAGE: BILL CLINTON AND THE ASSAULT ON AMERICAN IDEALS (1998) (explaining the need to put sexual conduct "under ritual and marriage vow").
178. See, e.g., Interview with Cheryl Zupan, supra note 138.
179. They suffer the linguistic costs associated with insincere speech. See ORWELL, SHOOTING AN ELEPHANT AND OTHER ESSAYS, supra note 48, at 88-89 ("The great enemy of clear language is insincerity. When there is a gap between one's real and one's declared aims, one turns . . . to . . . exhausted idioms . . . ."). I have previously noted the evacuation from restated federal marriage code of any aspirational content for the reinstated tradition of marriage. See Kuykendall, supra note 40, at 204-05. The aspirational content of marriage required a Procrustean bed to achieve a fit between the heterosexual practice of serial marriage and the assertion of traditional content by the exclusion of same-sex pairings. Slicing off norms was necessary before a traditional definition could be promulgated that would include all heterosexual marriage and exclude all homosexual marriage. But see Lynn D. Wardle, Legal Claims for Same-Sex Marriage: Efforts to Legitimate a Retreat from Marriage by Redefining Marriage, 39 S. TEX. L. REV. 735, 768 (1998) (arguing that claims for same-sex marriage provide an opportunity for proponents of "covenant heterosexual marriage").
180. They suffer the linguistic costs associated with insincere speech. See ORWELL, SHOOTING AN ELEPHANT AND OTHER ESSAYS, supra note 48, at 88-89 ("The great enemy of clear language is insincerity. When there is a gap between one's real and one's declared aims, one turns . . . to . . . exhausted idioms . . . ."). I have previously noted the evacuation from restated federal marriage code of any aspirational content for the reinstated tradition of marriage. See Kuykendall, supra note 40, at 204-05. The aspirational content of marriage required a Procrustean bed to achieve a fit between the heterosexual practice of serial marriage and the assertion of traditional content by the exclusion of same-sex pairings. Slicing off norms was necessary before a traditional definition could be promulgated that would include all heterosexual marriage and exclude all homosexual marriage. But see Lynn D. Wardle, Legal Claims for Same-Sex Marriage: Efforts to Legitimate a Retreat from Marriage by Redefining Marriage, 39 S. TEX. L. REV. 735, 768 (1998) (arguing that claims for same-sex marriage provide an opportunity for proponents of "covenant heterosexual marriage").
181. See Interview with Donald Hebert in Chicago, Ill. (July 1996).
182. James Bennet, For Clinton Vacation, Star Guessing Games, N.Y. TIMES, Aug. 21, 1997, at A15.
183. 152 See, e.g., ARK. CODE ANN. § 9-11-107 (Michie 1997) ("All marriages contracted outside this state which would be valid by the laws of the state or country in which the marriages were consummated and in which the parties then actually resided shall be valid in all the courts in this state. This section shall not apply to a marriage between persons of the same sex.").
184. See generally Kuykendall, supra note 38 (discussing the irony of defining a term statutorily to assert that its meaning derives from a consensual understanding).
185. See, e.g., CEREMONIES OF THE HEART: CELEBRATING LESBIAN UNIONS, supra note 116, at 139. ("We also went to Hudson, a local department store, to register for the bridal registry. There were four couples, including us, and they just stuck Anna with the men and me with the women, and we registered. Again, nobody batted an eye.").
186. See DAVIS, supra note 9, at 97 (quoting James W.C. Pennington, The Fugitive Blacksmith 2 in FIVE SLAVE NARRATIVES (William Lord Katz ed., 1968)).
187. Id. at 107 (quoting a man's appeal to his slaveholding brother to heed the cries of parents separated from children).
188. In a family with an alcoholic parent or authority figure, the term "alcoholic" and references to events that establish a family history of dysfunction become embargoed from family discourse. See Christian McEwan, Crowing Up Upper Class, in OUT OF THE CLASS CLOSET: LESBIANS SPEAK, supra note 50, at 245 (applying the term "not-saying" to her family's rules of silence concerning her father's alcoholism).
189. See Koppelman, supra note 14 (according great respect to the arguments of the natural law scholars as being secular in character despite their roots in religious reasoning, but ultimately suggesting that the core claim about the superiority and even goodness of marital sex derives from its role as a sacrament in Christian theology).
190. See supra notes 1-7 and accompanying text.
191. See Cole & Eskridge, supra note 70, at 330 (referring to the First Amendment's insistence that groups receive "public space" for their "identities and voices"). But see supra text accompanying notes 67-71 (arguing that the common language belongs to all citizens and not to identities).
192. See Butler, supra note 5, at 853-60 (describing emergence of a positive gay narrative).
193. See HALLEY, DON'T, supra note 25, at 125-31.
194. See Jennifer Egan, Uniforms in the Closet, N.Y. TIMES, June 28, 1998, (Magazine), at 26.
195. See HALLEY, DON'T, supra note 25 at 125-31 (discussing how the military's conflation of status with conduct creates an irrebuttable presumption of homosexuality).
196. See Peggy Cooper Davis, Symposium: Changing Images of the State: Contested Images of Family Values: The Role of the State, 107 HARV. L. REV. 1348, 1353 (1994) (referring to "successful political movement of slaves").
197. See DAVIS, supra note 9, at 114.
198. I WILLIAM BLACKSTONE, COMMENTARIES *442-*443, *445.
199. See supra notes 136-138 and accompanying text (customary treatment of males as the subject in the marriage narrative); see also SANDRA M. GILBERT & SUSAN GUBAR, 2 No MAN'S LAND: SEXCHANGES 34 (1989) (describing male anxiety triggered by the possibility of female political and literary power).
200. See MOORE, supra note 26. Despite obvious differences in the extent of oppression implicated, the underlying psychology in the enactment of Black Codes and Defense of Marriage Acts is similar: a belief in an entitlement of superior status that has been undone by the progression of democratic thought and speech. The Black Codes contested the legitimacy of changes in usage created by stories of natural right and oppression, see DAVIS, supra note 9 at 62, backed by military force and incorporated into the vocabulary of democracy. The defense of marriage acts contest the legitimacy of judicial incorporation of the citizens' language which courts encounter in addressing the spoken realities presented by litigants. In both cases, the mode of contestation is the Unsaying of what has become linguistic fact organically connected to the living vocabulary and common life by which the constitutional democracy is constructed.
201. See generally Sunstein, supra note 34 (discussing arguments regarding discrimination on the basis of sexual orientation).
202. But see supra note 90 (describing natural law scholars' concern with bodily details).
203. A possible counter example is the suppression of speech about lesbianism in the early twentieth century, in particular the censorship of The Well of Loneliness and the trial of its author, Radclyffe Hall. See People v. Friede, 233 N.Y.S. 565 (N.Y. Magis. Ct. 1929) (holding that the book harmed public morals and offended public decency and therefore violated the Penal Law which makes possession of such a book a misdemeanor). In that instance, the point of censorship was to confirm that thoughts about women's sexual agency could not be spoken, heard or comprehended. See Jane Marcus, Sapphistry: The Woolf and the Well, in LESBIAN TEXTS AND CONTEXTS: RADICAL REVISIONS 166 (Karla Jay & Joanne Glasgow eds., 1990) for a description of the Hall trial as a trial of lesbianism and not just literary free speech. Marcus describes the relationship of Virginia Woolf's, A Room of One's Own (1929), which used the actual name of the presiding magistrate in the Hall obscenity trial, to the trial of Radclyffe Hall, and Woolf's successful strategy to "seduc[e] the woman reader and taunt[ ] patriarchal law just this side of obscenity." Marcus, supra at 164. Hall was punished, not in an effort to bring the forbidden to the surface for the sake of titillation, but as part of a reaffirmation of unspeakability. Woolf was rewarded, or not punished, for seizing the opportunity to write that which could not be comprehended, except by those of her women readers whom she successfully seduced. It seems reasonable to say that censorship and Unsaying converged. The tone of rejection, however, was affected by the ideological element of rejecting and ending female agency about sex.
204. The language of desperation creeps into accounts of the Ex-Gay advertisements. See, e.g., Andrew Sullivan, They've Changed, So They Say, N.Y. TIMES, July 26, 1998, at A15 ("The campaign is clearly a desperate gambit to change the terms of the debate about homosexuality, a debate the religious right has been steadily, inexorably losing for two decades.").
205. In the summer of 1998, a flurry of ads by the religious right presented the figures of Anne and John Paulk, a married couple said to be former homosexuals, cured of their former belief in an identity as gay and now proponents of a new and more authentic identity as heterosexuals. Exposition and cancellation were the premise of the ads of identity. The narrative underlying the exposition was immediately brought into question: the inauthenticity of the former gay identity possibly arose from its retrospective manufacture rather than its prohibition by the creator. See Margaret Carlson, Praying Away the Gay, TIME, July 27, 1998, at 16 (suggesting that the claim by Anne Paulk of a former gay identity may not be convincing). But see Sullivan, supra note 173, at A15 (appearing to accept self report of ex-gays at face value). See Toward Hope and Healing for Homosexuals, Advertisement, N.Y. TIMES, July 13, 1998, at A11 ("I'm living proof that Truth can set you free."). The ads offered and cancelled identity speech in one communicative moment mainly intended to erase the entire identity. While the ads shared some features with "coming out" speech, in which gay people disclaim their former "default" identity as a delusional time brought about by the rigging of the culture to favor heterosexual identity, the rhetoric of the ads differed because they involved a total displacement of a competing vocabulary of identity. The ads occupied a symbolic realm of assertion that all gay identity can and must be undone, and, by the medium of the ads, has been Unspoken.
206. In the summer of 1998, a flurry of ads by the religious right presented the figures of Anne and John Paulk, a married couple said to be former homosexuals, cured of their former belief in an identity as gay and now proponents of a new and more authentic identity as heterosexuals. Exposition and cancellation were the premise of the ads of identity. The narrative underlying the exposition was immediately brought into question: the inauthenticity of the former gay identity possibly arose from its retrospective manufacture rather than its prohibition by the creator. See Margaret Carlson, Praying Away the Gay, TIME, July 27, 1998, at 16 (suggesting that the claim by Anne Paulk of a former gay identity may not be convincing). But see Sullivan, supra note 173, at A15 (appearing to accept self report of ex-gays at face value). See Toward Hope and Healing for Homosexuals, Advertisement, N.Y. TIMES, July 13, 1998, at A11 ("I'm living proof that Truth can set you free."). The ads offered and cancelled identity speech in one communicative moment mainly intended to erase the entire identity. While the ads shared some features with "coming out" speech, in which gay people disclaim their former "default" identity as a delusional time brought about by the rigging of the culture to favor heterosexual identity, the rhetoric of the ads differed because they involved a total displacement of a competing vocabulary of identity. The ads occupied a symbolic realm of assertion that all gay identity can and must be undone, and, by the medium of the ads, has been Unspoken.
207. See generally NILSEN, supra note 95.
208. The large amount of social psychological research documenting the aversive reaction of test subjects to persons labeled "homosexual" is well summarized by the materials in Part III: Homophobia, in GAYSPEAK: GAY MALE & LESBIAN COMMUNICATION 115 (James W. Chesebro ed., 1981).
209. See, e.g., JONATHAN NED KATZ, GAY AMERICAN HISTORY: LESBIANS AND GAY MEN IN THE U.S.A. - A DOCUMENTARY HISTORY (1992).
210. Indeed, even "after 200 years of social rejection, religious condemnation, legal prosecution, and more recently, intensive psychotherapeutic conversion programs [as of 1981], homosexuality has not disappeared." GAYSPEAK: GAY MALE & LESBIAN COMMUNICATIONS, supra note 176, at ix. Given the renunciation by the therapeutic community of conversion efforts and their replacement by coaching in the adjustment to managing the aversion of the sexual majority, the possibilities of talking the fact of gay individuals and the speech attendant on their existence out of the record are weak.
211. See Carlson supra note 174.
212. See Joyce Tyldesley, Marriage and Motherhood in Ancient Egypt, 44 HIST. TODAY 20, 23 (Apr. 1994).
213. See DAVIS, supra note 9, at 29-80.
214. Id. at 235.
215. Evidence that rescues language, see supra text at notes 52-56, is different, because it enriches contemporary speech. But fragmentary proof of same-sex marriage is not itself a saying.
216. OTTENHEIMER, supra note 11, at 31.
217. Id.
218. See Witte, supra note 115.
219. Id.
220. In describing the "definitional failures" that characterize efforts to establish dictionary meanings of marriage, Richard Mohr describes the telling discovery that "it took a gay case to reveal what marriage is, but the case reveals it, at least as legally understood, to be nothing but an empty space - delimited only by what it excludes - gay couples." Mohr, supra note 121, at 221.
221. But see Wardle, supra note 149, at 768 (arguing that legalization of same-sex marriage entails a radical rejection of marriage by redefinition and replacement).
222. See Butler, supra note 5, at 853.
223. See, e.g., EVANS & EVANS, supra note 33, at v. Titles of recent bills that have been considered or adopted in Congress demonstrate the practice of relaxed incorporation of new terms; recent titles include the Internet Gambling Prohibition Act of 1998, H.R. 4427 105th Cong. (1998), Intermodal Surface Transportation Efficiency Act of 1997, S. 1173, 105th Cong. (1997), and the Telephone Slamming Prevention and Internet Connection Act, H.R. 2112, 105th Cong. (1997).
224. See id. at vi.
225. The recourse here to the example of the dictionary, one hopes, differs from the uncritical use of dictionaries to divine authoritative meanings. See Ellen P. Aprill, The Law of the Word: Dictionary Shopping in the Supreme Court, 30 ARIZ. ST. L.J. 275 (1998). This article applies principles of lexicography to show that "dictionaries are not as authoritative, precise, or scholarly as we . . . often assume." Id. at 275. Of course, if dictionaries are not authoritative statements of meanings, query the authority of legislated meaning.
226. See Shahar v. Bowers, 114 F.3d 1097 (11th Cir. 1997) (en banc) (affirming Attorney General's right to withdraw employment offer from person who disclosed
227. A recent example of another culture's willingness to validate a marriage that was being "Unsaid" by an individual act of culturally based resistance occurred when a Pakistani court ruled that a couple was married, and thus not guilty of adultery, despite the claim that her father had precluded their marriage by binding her in advance to a cousin. See Disputed Marriage Validated in Pakistan, N.Y. TIMES, Feb. 19, 1999, at A10.
228. See Appellants' Supplemental Brief, Baehr v. Anderson, No. 91-1394-05 (Haw. Feb. 23, 1999) (arguing that, under principals of sex-discrimination, the Hawaii constitutional amendment allowing the Hawaii legislature to reserve marriage to a male and female should not withhold "the rights and benefits concomitant to marriage" from same-sex couples).