The various states have given provisional answers to the socially volatile quest by gay couples for legal recognition of their relationships as marriage. The provisional quality of the policy-making is related to the status of the language of marriage as a contested site. The language evolves, but pressure exists to stall public acknowledgment of changes in descriptors for basic relationships. The prominence of language as itself a matter of dispute gives new and broadened meaning to classic arguments defending the judicial role on the grounds that courts function well to advance public discourse, particularly if they do not impose final answers that are immune to majoritarian revisions. The fluidity of the language relating to underlying societal building blocks puts courts in the business of accelerating change when they memorialize and record new meanings, when they press for public recognition of new linguistic facts, and when they resist new usage in a manner that is plainly unstable and unconvincing.
Because of the inevitably provisional nature of the responses to couples' petitions for the right to marry without regard to biological sex, the states are fated to serve as laboratories for social experiment in the matter of same-sex marriage and to create occasions for court involvement in discourse about the definition of marriage. Several different factors render the attempted answers provisional and thus experimental, no matter who is the decision-maker or speaker. First, some forms of legislative or constitutional statement are so emphatically negative they seem unlikely to endure. In addition, efforts by courts to shore up the attempted gender clarity and boundary maintenance of the statutes contain hyperbole about the clarity of gender lines that undermines the statutes. Second, "gay-friendly" courts issue rulings that, by their forthright grant of marital rights in states with constitutions that can be readily amended, are patently destined to be preempted by legislative action or voter referenda. The corrective actions are in turn improbably negative for assuring closure in a democratic society. Third, the action that preempts the court's decision is overtly provisional in that it assigns constitutional control of defining marriage to the state legislature and thus incorporates, even if insincerely, the possibility of changes. Fourth, the legislature attempts the compromise of extending to same-sex couples the equivalent of marriage while maintaining a linguistic boundary that stipulates that legally identical statuses may carry different names, thus explicitly putting the state in the unstable enterprise of refereeing language. Finally, more broadly, the question of marital rights involves a clash of strong forces: the demand of one group of citizens for fair civic treatment of living arrangements that share the basic characteristics of marriage' and the heated backlash, tinged with talk of violence, against any civic recognition of gay unions. The near certainty that proffered answers are temporary, given the collision of aspiration and aversion, confers an experimental quality on the topic and on policy-making. The unresolved and volatile character of the question places the courts, with their charge to decide cases that allege unequal treatment by applying principles capable of being generalized, in a difficult cultural circumstance. The courts must look for a path between the duty to apply general norms and a pragmatic concern about the effect on courts and social harmony of challenging the authoritarian impulses that patrol the language and reject, in connection with gay marital rights, the civic premises associated with social cooperation.
"Gay Marriages and Civil Unions: Democracy, The Judiciary and Discursive Space in the Liberal Society,"
Mercer Law Review: Vol. 52
, Article 10.
Available at: https://digitalcommons.law.mercer.edu/jour_mlr/vol52/iss3/10