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  • Defining marriage: a huge win for human rights and good news for lexicographers

    Supreme Court overturns DOMA
    Supreme Court overturns DOMA

    The Supreme Court ruling in United States v. Windsor is a huge win for supporters of marriage equality, effectively doubling the availability of same-sex marriage in the United States. Supporters of lexicography may celebrate as well, because in Windsor the Court struck down the definition of marriage in the Defense of Marriage Act (DOMA) without ever once saying, “The dictionary says . . . .”

    Most dictionaries are not compiled with the law in mind. Nonetheless, lawyers and judges cite dictionaries all the time, and a recent study shows that Supreme Court decisions are citing dictionaries more than ever. In Taniguchi v. Kan Pacific Saipan (2012), Justices Alito and Ginsburg consulted a record fourteen dictionaries between them to produce conflicting interpretations of the word interpreter. But at the other extreme, in Bullock v. BankChampaign (2013), Justice Breyer found dictionary definitions of defalcation so “unhelpful” that he had to figure out the implications of the obscure financial term from its context in the bankruptcy code.

    In a recent post, I discussed many of the dictionary definitions of marriage that the justices could have read as they decided Windsor. But no dictionary definitions of marriage are to be found in Justice Kennedy’s opinion in the case, or in the three dissents.

    Definitions are important in Windsor, but they’re not dictionary definitions. Instead, the justices look to traditional, cultural concepts that implicitly define marriage, and to changing cultural notions of who can marry whom. And they emphasize the power of the individual states or that of the federal government to define the term explicitly in statutes.

    In Windsor, the Court considered DOMA's definition of marriage and found it wanting. Dictionaries don’t prescribe how a word should be used, but the Defense of Marriage Act prescribes the meaning of marriage for the purposes of federal law as “a legal union between one man and one woman as husband and wife.”

    Defense of Marriage Act defining

    Section 3 of the Defense of Marriage Act adds section 7 to the first chapter of the US Code, called the Dictionary Act, prescribing the federal definition of marriage as exclusively heterosexual.

    The impact of this federal definition of marriage as exclusively heterosexual is sweeping. As Justice Kennedy puts it in his opinion in the case,

    The enactment’s comprehensive definition of marriage for purposes of all federal statutes and other regulations or directives covered by its terms . . . control[s] over 1,000 federal laws in which marital or spousal status is addressed as a matter of federal law. [Opinion, 2]

    Kennedy acknowledges the traditional, implicit definition of marriage as a heterosexual union:

    [U]ntil recent years, many citizens had not even considered the possibility that two persons of the same sex might aspire to occupy the same status and dignity as that of a man and woman in lawful marriage. For marriage between a man and a woman no doubt had been thought of by most people as essential to the very definition of that term and to its role and function throughout the history of civilization. [13]

    But times have changed, and Kennedy cites New York State’s statutory redefinition of marriage to include same-sex couples as a recognition of more-recent changes in the cultural notion of who can marry:

    Some states concluded that same-sex marriage ought to be given recognition and validity in the law for those same-sex couples who wish to define themselves by their commitment to each other. . . . New York acted to enlarge the definition of marriage to correct what its citizens and elected representatives perceived to be an injustice that they had not earlier known or understood. [14]

    Kennedy recognizes as well the long-standing legal authority of the states to define marriage:

    By history and tradition the definition and regulation of marriage . . . has been treated as being within the authority and realm of the separate States. [14]

    State responsibilities for the definition and regulation of marriage [date] to the Nation’s beginning. [18]

    But Kennedy finds that DOMA’s definition has reversed the intent of New York and the 12 other states, and the District of Columbia, that have defined marriage specifically to include same-sex couples:

    The Federal Government uses this state-defined class for the opposite purpose—to impose restrictions and disabilities. [19]

    As a result, DOMA “writes inequality into the entire United States Code” (22). Kennedy finds that DOMA’s definition of marriage conflicts not only with the state prerogative to define that institution, but also with Fifth Amendment guarantees of due process and equal protection:

    The liberty protected by the Fifth Amendment’s Due Process Clause contains within it the prohibition against denying to any person the equal protection of the laws. [25]

    And so he finds section 3 of DOMA, the definition of marriage, to be unconstitutional.

    Chief Justice Roberts in his dissent cites the legal, not the lexicographical, definitions of marriage. Roberts argues that, at the time of its adoption, DOMA codified into federal law “the definition of marriage that, at that point, had been adopted by every State in our Nation, and every nation in the world” (Roberts Dissent, 1; I’m not sure that every state and nation had explicitly defined marriage as heterosexual when DOMA was passed, though that implicit definition probably undergirded state marriage regulations at that time).

    Roberts also fears that in the wake of Windsor, federal courts may seek to invalidate on constitutional grounds state definitions of marriage that don’t recognize same-sex marriage (3). In a separate dissent, Justice Scalia echoes this concern, warning in addition that with no uniform federal definition of marriage, it may be difficult to decide which state definition to apply when uncertainty exists, the law of the state where a marriage was celebrated, or that of the state where the married parties currently reside. Scalia defends DOMA on the grounds that it appropriately sought to eliminate such legal uncertainty: “That is a classic purpose for a definitional provision” (Scalia Dissent, 20).

    Although Justice Alito consulted ten separate dictionaries in his opinion in Taniguchi, in his dissent in Windsor Alito doesn’t refer to dictionaries at all. He speaks instead of the cultural role in defining marriage as

    the “consent-based” vision of marriage, a vision that primarily defines marriage as the solemnization of mutual commitment—marked by strong emotional attachment and sexual attraction—between two persons. [Alito Dissent, 14].

    And Alito acknowledges that both the states and the U. S. Congress have the power to define marriage in their respective statutes (17).

    The justices in Windsor ruled on the constitutionality of a bill that defined marriage in federal law. They used variants of the word define (including defining, definition, and redefine) some 54 times. Yet in none of this extensive discourse on who gets to define marriage, does anyone cite a dictionary. Certainly both sides could have found dictionary definitions to support their positions. All the older dictionaries that the Court has relied on in the past rehearse the traditional definition of marriage as heterosexual, and all the major contemporary English dictionaries include entries for same-sex or gay marriage as well (you can read my collection of those dictionary definitions here).

    I doubt that the justices’ dictionary avoidance signals that the Court is rejecting the authority of the dictionary in legal matters. It may be that both sides wanted to emphasize that the Supreme Court was not going to define marriage for the country, at least not yet. I’m sure that next term, many opinions, concurrences, and dissents will resume the practice of citing dictionaries, because dictionaries--even those not designed for lawyers--remain an important tool when it comes to finding out what the words of the law have meant in the past and what they mean today. But as we learn from Windsor, dictionaries aren’t the only tool. Tradition and statute define words as well, and with or without dictionaries, lawyers and judges will continue to argue over the meaning of the words in the law—that’s their job, after all.

    So why is Windsor good news for lexicographers? Because, for now, at least, dictionary-makers are off the hook: before the decision in Windsor, supporters of same-sex marriage pressured lexicographers to make their definitions of marriage more enlightened, while opponents of the practice complained that same-sex marriage should be barred from the dictionary as well as from the law books. Instead of blaming dictionary makers if you don’t like how marriage is defined, blame the Supreme Court.

    Webster's New Collegiate Dictionary defines

    Above: Merriam-Webster’s Collegiate Dictionary (11e) defines marriage as same-sex as well as opposite-sex. Other dictionaries treat same-sex marriage differently, but all of the major contemporary dictionaries, including Black’s Law Dictionary (9e), below, acknowledge the concept (Black’s will need to revise this entry in light of Windsor). One thing that isn’t going to change for lexicographers any time soon: “The dictionary says . . .” will continue to signal a vacuous or unfounded assertion about what words mean.

    Black's Law Dictionary 9e defines same-sex marriage

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