On June 26, in the landmark decision in Obergefell v. Hodges, the United States Supreme Court extended constitutional protection to same-sex marriage. The Court’s action redefined marriage, delighting supporters of marriage equality—according to surveys, that’s most Americans—and infuriating opponents. It also raises an important question about making legal meaning: who are the definers?
The word define and its variants appear seventy-four times in the Obergefell opinion and dissents, which run to 103 pages. But when it comes to marriage and the law, only two dictionaries are cited, in Chief Justice Roberts’ dissent. And even there, they are not the primary definers. That right is reserved to the states, and to the people. Indeed, Justice Kennedy’s opinion begins by noting that the Constitution protects people’s right to define themselves:
The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity. The petitioners in these cases seek to find that liberty by marrying someone of the same sex and having their marriages deemed lawful on the same terms and conditions as marriages between persons of the opposite sex. [Opinion, 1-2, emphasis added]
Kennedy locates this right of self-definition in the due process clause of the Fourteenth Amendment:
[N]o State shall “deprive any person of life, liberty, or property, without due process of law.” The fundamental liberties protected by this Clause include most of the rights enumerated in the Bill of Rights. . . . In addition these liberties extend to certain personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs. [Opinion, 10, emphasis added]
Despite Kennedy’s grand statements, the decision in Obergefell does not actually grant us all a constitutional right to define ourselves every which way, just “within a lawful realm,” a qualifier that recognizes the state as a definer too. The petitioners in Obergefell challenged laws in four states, Michigan, Kentucky, Ohio, and Tennessee, that defined marriage as “a union between one man and one woman.”
Kennedy also cites several precedents establishing the Supreme Court’s role as a definer of marriage: Griswold v. Connecticut (1965) established a marital right to privacy; Loving v. Virginia (1967) struck down state bans on interracial marriage; Zablocki v. Redhail (1978) gave noncustodial parents the right to remarry even if they owed child support; Turner v. Safley (1987) gave prisoners the right to marry; Lawrence v. Texas (2003) struck down state sodomy laws and guaranteed a right to sexual privacy; and last year, United States v. Windsor struck down the federal definition of marriage in the Defense of Marriage Act (see my post on that decision here). And Kennedy finds that, although the right to marry can come from “ancient sources,” its definition changes over time “from a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era” (Opinion, 18-19, emphasis added).
In his dissent, Chief Justice Roberts acknowledges the shifting cultural view of marriage but rejects the Supreme Court’s ability to define marriage for the states. For Roberts, that role belongs to the voters:
In a carefully reasoned decision, the Court of Appeals acknowledged the democratic “momentum” in favor of “expand[ing] the definition of marriage to include gay couples,” but concluded that petitioners had not made “the case for constitutionalizing the definition of marriage and for removing the issue from the place it has been since the founding: in the hands of state voters.” [Dissent, 9, emphasis added]
Roberts rejects the majority’s argument that earlier Court decisions changed the “core definition” of marriage: Referring to Loving, he writes, “Removing racial barriers to marriage . . . did not change what a marriage was any more than integrating schools changed what a school was.” (Dissent, 16). And Roberts warns that the Court’s redefinition of marriage could easily lead to polygamy, since unlike same-sex marriage, which is a relatively recent phenomenon, “plural unions . . . have deep roots in some cultures around the world”:
The majority . . . offers no reason at all why the two-person element of the core definition of marriage may be preserved while the man-woman element may not. [Dissent, 20]
The decision in Obergefell is all about legal definitions and who gets to write them. In response to conflicting state definitions and changing cultural views, the Supreme Court has stepped in as definer-in-chief, redefining marriage to include same-sex unions, pre-empting state definitions that exclude same-sex marriage. There will be some legal wrangling about rights, benefits, and protections for same-sex spouses, to be sure, but a more-inclusive definition of marriage is now the law of the land.
As we saw two years ago in Windsor, and last week in Obergefell, marriage laws don’t change because of dictionaries, but like those dictionaries, they do eventually catch up with evolving usage. And dictionaries remain important--sometimes the Supreme Court does rely on their definitions as it interprets the law, as I wrote about here. I have shown in earlier posts here and here that dictionaries do track changing cultural and legal notions of marriage. For your convenience, here is a brief album of some of the more important dictionary definitions over the centuries:
Edward Phillips, New World of Words (1706), has one of the earliest definitions in an English dictionary:
Marriage, 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, Dictionarium Britannicum (1730) adds an etymology and some statistics to this:
Marriage [mariage, Fr.] a civil Contract, by which a Man and a Woman are joined together . . . . For the proportion that marriages bear to births, and births to burials, Mer Denbam has given us a Table for several Parts of Europe, that for England in general, is
Marriages to Births as 1. to 4. 36.
Births to Burials as 1. 12. to 1.
From which Table it appears that marriages one with another do each produce 4 Births. And by Mr. King’s Computation, about 1 in 104 Persons marry; and the number of People being estimated in England at 5 Millions and a Half, about 41,000 of them marry Annually.
Samuel Johnson, Dictionary of the English Language (1755):
Marriage. The act of uniting a man and woman for life.
Noah Webster, An American Dictionary of the English Language (1828), adds a moral component to his definition, something lexicographers no longer do, but which remains popular with some supporters and opponents of marriage equality:
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.
The Century Dictionary (1891) repeats the traditional definition:
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,
The Century also has a subentry for plural marriage:
the marriage of a man with two or more women; polygamy: applied especially to the kind of polygamy existing among the Mormons, without the accompaniment of the harem of Oriental countries, each wife usually living in a separate house.
Webster’s Third (1961) 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.
Merriam-Webster’s Collegiate Dictionary (11th ed., 2003) adds same-sex marriage:
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 adds same-sex marriage:
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 a subentry under gay traces gay marriage 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.
The American Heritage Dictionary (5e, 2011) adds 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.
Legal dictionaries too show evolving notions of marriage. Bouvier’s Law Dictionary, 1856, specifies that slaves cannot 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.
Black’s Law Dictionary (1891):
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.
Black's 9e (2009) definition of marriage replaces husband and wife with gender-neutral spouses: “the legal union of a couple as spouses.” Black’s 9e (2009) entry on same-sex marriage adds
But in some states same-sex couples have successfully challenged the laws against same-sex marriage on constitutional grounds.
Here’s Black’s most-recent entry on marriage, from Black’s 10e (2014):
The legal union of a couple as spouses. • The essentials of a valid marriage are (1) parties legally capable of contracting to marry, (2) mutual consent or agreement, and (3) an actual contracting in the form prescribed by law. Marriage has important consequences in many areas of the law, such as torts, criminal law, evidence, debtor-creditor relations, property, and contracts. — Also termed matrimony, conjugal union.
In addition, Blacks’s 10e (2014) revises the definition of same-sex marriage in light of United States v. Windsor (2013), dropping the “marriage-like” descriptor from earlier definitions 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.
