During oral arguments in Obergefell v. Hodges, Chief Justice Roberts wondered whether making same-sex marriage legal would nullify traditional dictionary definitions of marriage:
Every definition that I looked up, prior to about a dozen years ago, defined marriage as unity between and man and a woman as husband and wife. Obviously, if you succeed, that core definition will no longer be operable.
The Chief Justice can relax: new definitions of marriage won’t replace older ones, and expanding the legal scope of marriage won’t invalidate or discourage heterosexual unions. As Justice Ginsberg observed,
You're not taking away anything from heterosexual couples. They would have the very same incentive to marry, all the benefits that come with marriage that they do now.
So just how do dictionaries define marriage? Roberts is right, early definitions in English dictionaries specify marriage as a heterosexual union, while more recent ones acknowledge same-sex marriage as well. In addition, some early lexicographers went beyond simple definition to speculate on the purpose of marriage, occasionally connecting it with parenthood, something opponents of same-sex marriage echoed as they made their case before the court. One commonly-used nineteenth-century law dictionary even goes so far as to say that slaves can’t marry:
MARRIAGE. A contract made in due form of law, by which a free man and a free woman reciprocally engage to live with each other during their joint lives, in the union which ought to exist between husband and wife. By the terms freeman and freewoman in this definition are meant, not only that they are free and not slaves, but also that they are clear of all bars to a lawful marriage. [Bouvier’s Law Dictionary, 1856]
That restriction was repealed after the Civil War, but Bouvier's definition shows that dictionaries, like the law, can reflect discrimination. In Loving v. Virginia (1967), the Supreme Court struck down laws banning interracial marriage. As Adam Liptak observes, the hypothetical posed by Roberts to the attorney arguing against marriage equality suggests that he might find laws banning same-sex marriage equally discriminatory:
If Sue loves Joe and Tom loves Joe, Sue can marry him and Tom can't. And the difference is based on their different sex. Why isn't that a straightforward question of sexual discrimination?
Definitions as well as laws change over time, and Roberts is also right that recent dictionaries have revised their definition of marriage in response to the changing ways we use the word. Even opponents of marriage equality refer to same-sex marriages in order to state their objections, a sure indication that the definition of marriage has broadened, even if the legal status of such unions is only starting to catch up.
Here, then, are the kinds of dictionary definitions of marriage the Roberts might have found as he consulted the major English dictionaries of the past four centuries—
Edward Phillips provides what may be the first English dictionary definition of marriage in his New World of Words (1706):
a Civil Contract, by which a Man and a Woman are joyn’d together, for mutual Society and Help, the lawful begetting of Children, &c.
Nathan Bailey repeats this in his Dictionarium Britannicum (1730), dropping “the lawful begetting of children,” but not the connection between marriage and children, which he indicates with statistics showing that English marriages result in four births each, and that “about 1 in 104 Persons marry.”
Alongside the definition of marriage, Bailey cites statistics about marriage (these do not appear in later editions of the Universal Etymological Dictionary).
In 1755, Samuel Johnson, perhaps the best-known lexicographer of his day, defined marriage as “the act of uniting a man and woman for life.” Noah Webster, whose dictionary appeared in 1828, echoes this traditional sentiment, then moralizes about the religious virtues of marriage, connecting the institution with child-rearing:
Marriage is a contract both civil and religious, by which the parties engage to live together in mutual affection and fidelity, till death shall separate them. Marriage was instituted by God himself for the purpose of preventing the promiscuous intercourse of the sexes, for promoting domestic felicity, and for securing the maintenance and education of children.
Above: Samuel Johnson’s definition, from his Dictionary of the English Language (1755). Below: Noah Webster’s definition, from An American Dictionary of the English Language (1828)
Although Chief Justice Roberts was correct in saying that dictionaries began referring to same-sex marriages in their definitions only recently, more-inclusive definitions of marriage appear toward the end of the nineteenth century. The Century Dictionary (1891), the first claiming to be produced on scientific, linguistic principles, defines marriage as “the legal union of a man with a woman for life . . . . because the interests of the state and of children require the affixing of certain permanent duties and obligations upon the parties,” all very traditional if a bit legalistic, but the Century also recognizes that marriage is defined differently in different cultures. Marriage may include both common law marriage and “plural marriage,” or polygamy as well (not just abroad, but also in the United States, the dictionary notes, as practiced by Mormons).
Above: The Century Dictionary defines marriage as heterosexual, but its definition takes an anthropological bent, recognizing the fluidity of wedlock practices across cultures. Below: the Century’s subentry for plural marriage, both “among the Mormons” and in “Oriental countries” (a reference not to the Far East, but to Islam):
Webster’s Third (1961), another dictionary popular with the court, defines marriage as heterosexual and family-oriented:
1a: the state of being united to a person of the opposite sex as husband or wife . . . . c: the institution whereby men and women are joined in a special kind of social and legal dependence for the purpose of founding and maintaining a family.
But when during oral arguments, the attorney arguing against same-sex marriage insisted that the goal of marriage must be having children, Justices Breyer, Ginsberg, Kagan, and Sotomayor indicated that this failed to take into account the many heterosexual marriages where there are no children, and the many same-sex marriages where there are, and it’s likely that even the more conservative justices might reject definitions of marriage that would limit it to procreation as being too narrow.
In any case, as Roberts suggested in his comment about dictionaries, times and mores change, and as same-sex marriage gained traction in American society, dictionaries took notice, not because they’re written by social activists, but because their charge is to record language as people use it. After all, even the opponents of marriage equality use the word marriage to refer to the same-sex unions they oppose. In 2003, Merriam-Webster’s Collegiate Dictionary (11th ed.) amended its definition of marriage to reflect this change:
1a (1) the state of being united to a person of the opposite sex as husband or wife in a consensual and contractual relationship recognized by law (2): the state of being united to a person of the same sex in a relationship like that of a traditional marriage.
The Oxford English Dictionary has also added same-sex marriage to its definition:
The condition of being a husband or wife; the relation between persons married to each other; matrimony. The term is now sometimes used with reference to long-term relationships between partners of the same sex.
And the OED adds this definition of gay marriage (in its entry for gay), tracing the first use of the term back to 1971:
gay marriage n. a relationship or bond between partners of the same sex which is likened to that between a married man and woman; (in later use chiefly) a formal marriage bond contracted between two people of the same sex, often conferring legal rights; (also) the action of entering into such a relationship; the condition of marriage between partners of the same sex.
In 2011, the American Heritage Dictionary (5e) added both same-sex marriage and polygamy to its definition of marriage:
- The legal union of a man and woman as husband and wife, and in some jurisdictions, between two persons of the same sex, usually entailing legal obligations of each person to the other.
- A similar union of more than two people; a polygamous marriage.
- A union between persons that is recognized by custom or religious tradition as a marriage.
- A common-law marriage.
During his dictionary search Chief Justice Roberts would have also discovered that legal dictionaries start out with definitions of heterosexual marriage but in recent years they, too, add same-sex marriage to their definitions. Black’s Law Dictionary (2e, 1910) confirms marriage as heterosexual and grounds it in civil law:
Marriage . . . is the civil status of one man and one woman united in law for life, for the discharge to each other and the community of the duties legally incumbent on those whose association is founded on the distinction of sex.
Black’s Law Dictionary 8e (2004), defines marriage as “the legal union of a couple as husband and wife”--still traditional--but acknowledges a meaning-shift in this new subentry for same-sex marriage:
same-sex marriage. The ceremonial union of two people of the same sex; a marriage or marriage-like relationship between two women or two men. • The United States government and most American states do not recognize same-sex marriages, even if legally contracted in another U.S. state or in a foreign country such as Canada, so couples usu. do not acquire the legal status of spouses. But same-sex couples have successfully challenged the laws against same-sex marriage.
More recently still, Black's ninth edition (2009) switches to the more neutral general definition, “the legal union of a couple as spouses.” And the tenth edition (2014) revises the definition of same-sex marriage in light of United States v. Windsor (2013), dropping the “marriage-like” descriptor and omitting any further qualifiers:
The ceremonial union of two people of the same sex; a marriage between two women or two men. • See U.S. v. Windsor, 133 S.Ct. 2675 (2013).—also termed gay marriage; homosexual marriage. Cf. civil commitment (2); civil union; domestic partnership.
In Windsor, the Supreme Court didn’t resort to dictionary definitions of marriage to strike down as unconstitutional the definition of marriage in the federal Defense of Marriage Act as “the legal union of one man and one woman." And despite Chief Justice Roberts’ musings during the arguments in Obergefell, it’s likely that the court won’t feel bound by dictionary definitions when it rules on state same-sex marriage bans in June. That’s because such definitions don’t change our understanding of marriage, they catch up with the ways our understanding of marriage has broadened. In the end, marriage laws won’t change because of dictionaries, but like those dictionaries, they too will eventually catch up with evolving usage.
