Perhaps the highest-profile cases to be decided by the U.S. Supreme Court this term are the two involving the definition of marriage. U.S. v. Windsor challenges the federal definition of marriage as “a legal union between one man and one woman” (Defense of Marriage Act [DOMA], 1 USC § 7), and Hollingsworth v. Perry seeks a ruling on the constitutionality of California’s Proposition 8, a ban on same-sex marriage which reads, “Only marriage between a man and a woman is valid or recognized in California.” Both cases concern who gets to write the definition of marriage, and what that definition says. The high court may check dictionary definitions in deciding these cases. It could defer to state laws defining marriage. Or it could simply write its own definition of marriage, because courts, like dictionaries, are in the business of telling us what words mean. In deciding these two marriage-equality cases, the highest court in the land is poised to become the highest dictionary in the land.
Judges, like the rest of us, turn to dictionaries when they’re not sure about the meaning of a word. Or they turn to dictionaries when they’re sure about a word’s meaning, but they need some confirmation. Or they turn to a dictionary that defines a word the way they want it defined, rejecting as irrelevant, inadmissible, and immaterial any definitions they don’t like.
The Supreme Court has referred to dictionaries in its opinions over 664 times. In recent years, almost every major case and many minor ones find the justices, or their clerks, thumbing through Webster’s Third or the Oxford English Dictionary. And it’s not just high-profile cases like District of Columbia v. Heller, the one about the Second Amendment, where definitions of words like militia and bear arms came into play. While he was writing an opinion in a patent case, Chief Justice John Roberts looked up words in five different dictionaries. When was the last time you looked up a word in more than one dictionary?
Sometimes even five dictionaries aren’t enough. In Taniguchi v. Kan Pacific Saipan (2012), Justice Samuel Alito checked ten dictionaries to prove that the word interpreter refers to someone who translates speech, not writing, and Justice Ruth Bader Ginsburg found four dictionaries supporting her view that interpreter can refer to a translator of documents as well. Complicating things even more, both justices relied on the same definitions of interpreter in Webster's Third and Black’s Law Dictionary to support their opposing claims. It turns out that dictionary definitions need interpreting, just as the law does.
Why all this consulting of dictionaries by the courts? When a word is not defined in a statute, legal convention says that we’re supposed to give that word its ordinary, customary, or plain meaning. But the ‘ordinary meaning’ of words is often in dispute: as many as 15 or 16 million civil lawsuits are filed every year, all of them based on conflicting interpretations of the words in our laws and contracts.
If the marriage-equality cases before the Court lead to dictionary look-ups, here’s what the justices will find. Samuel Johnson (1755), the great English lexicographer, defines marriage as “the act of uniting a man and woman for life.” Noah Webster (1828), a lawyer by training, defines marriage as a specifically heterosexual union and moralizes at length about its religious virtues, something today’s more modest lexicographers refrain from doing:
Marriage. n. s. The act of uniting a man and woman for life; wedlock; the legal union of a man and woman for life. 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)
The Century Dictionary (1891), the first to be based on scientific and linguistic principles, stresses the civil nature of marriage as “the legal union of a man with a woman for life”--nothing shocking there. But it’s also the first dictionary to recognize that marriage is defined differently in different cultures. Marriage may include both common law marriage and “plural marriage,” or polygamy (not just abroad, the Century tells us, but even in the United States, 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 also has an entry defining plural marriage, both “among the Mormons” and in “Oriental countries” (a reference not to the Far East, but to Islam):
In contrast to the moralizing Webster, Black’s Law Dictionary (2nd ed., 1910), confirms earlier definitions specifying heterosexual monogamy, but grounds the institution in civil law rather than religion:
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.
But the latest edition of Black’s (9e) gives this more-neutral definition, “the legal union of a couple as spouses,” and a subentry for same-sex marriage refines the definition to take into account its treatment in various jurisdictions:
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 other countries such as Canada, so couples usu. do not acquire the legal status of spouses. But in some states same-sex couples have successfully challenged the laws against same-sex marriage on constitutional grounds.
In 2003, Merriam-Webster’s Collegiate Dictionary (11e), an authority frequently cited by the courts, added same-sex unions to its definition of 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, another favorite with judges, has also added same-sex marriage to its definition:
persons married to each other; matrimony. The term is now sometimes used with reference to long-term relationships between partners of the same sex.
The OED also adds this definition of gay marriage (s.v., gay), tracing the first use of the term back to 1971:
gay marriage n. 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.
And in 2011, the American Heritage Dictionary (5e) added both same-sex marriage and polygamy to its definition of marriage:
a. 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.
b. A similar union of more than two people; a polygamous marriage.
c. A union between persons that is recognized by custom or religious tradition as a marriage.
d. A common-law marriage.
Dictionaries have modified their definitions of marriage as social attitudes toward marriage have changed. That’s because dictionaries record how speakers and writers have used some words some of the time in some contexts. The new definitions of marriage may help the Court decide its current cases. But it’s also possible that the Court will ignore them, because, despite our reverence for dictionaries as the ultimate language authorities, lexicographers don’t write dictionaries with the law in mind.
The courts are coming to realize this, if only slowly. In U.S. v. Costello, Judge Richard Posner rejected the government’s dictionary-definition of to harbor as ‘to shelter’ (Costello had been convicted of “harboring” her partner, a convicted drug dealer and illegal alien, in violation of the Espionage Act): “‘Sheltering’ doesn't seem the right word for letting your boyfriend live with you.” Quoting Learned Hand, he admonished the government attorneys “not to make a fortress out of the dictionary,” because dictionaries don’t generally give enough information about how a word is used in context. Instead, Posner sought the meaning of harbor by googling the word.
The Supreme Court may be moving away from its reliance on dictionaries as well. Bullock v. BankChampaign (2013) is a case which turned on the meaning in the bankruptcy code of defalcation, an accounting term referring to the reduction of funds in an account. In Bullock, the Court was asked to decide if defalcation can be accidental, or if it must require criminal intent. It's not a common word, and so it has no plain meaning obvious to any speaker of English. Legal precedents and jurisprudence don’t supply a clear answer to the question of intent. Turning to lexicographical authorities, Justice Stephen Breyer found that “definitions of the term in modern and older dictionaries are unhelpful,” some suggesting defalcation is criminal, others that it's not, and still others that can be either innocent or criminal. So the Court wrote its own definition: because defalcation occurs in the same sentence of the Bankruptcy Act as fraud, embezzlement, and larceny, Breyer reasoned that, like these other terms, defalcation must require criminal knowledge or intent. And that is how the highest court now defines defalcation.
The Supreme Court’s definitions are confined to legal contexts. We are still free to call translators of documents interpreters, but after Taniguchi, the law must define them as translators of speech. We can use defalcation to mean the accidental loss of funds, as when Uncle Billy misplaces the bank deposit in It’s a Wonderful Life—if we think of this unusual word at all. And we can still think that in the Second Amendment, bearing arms refers to military service, not sport or self-defense, but after Heller, it became grammatical to bear arms against a rabbit too.
The Supreme Court may choose not to define marriage at all--we'll know more in the next few weeks. But if it does rule that marriage includes same-sex marriage, or excludes it, no matter how we define marriage privately, we'll have follow those definitions in dealing with the legal aspects of marriage, at least until the Court changes its mind and rewrites its dictionary.