Liberal Jurisprudence and the Literal Grammar of Marriage Equalit(y)(ies)

1 Context, Case, and Doctrine

Whether or not gay and lesbian couples have the right to marry in the eyes of the law has become the most prominent issue in a vigorous civic, political, and legal contest over the status of sexual minorities in the United States. In public discourse, the marriage controversy has largely boiled a complex of cultural ideas about sexual orientation down to a litmus test on whether someone believes homosexuality is like or unlike heterosexuality when it comes to widespread values of personhood, kinship, and citizenship. ⁴ An example that interweaves these values occurred when a 2012 political advertisement against a Colorado state senator who supported civil unions (not even marriage) for same-sex couples made unauthorized use of a photograph of two men kissing at their engagement two years earlier, with the caption: “State Senator Jean White’s idea of ‘family values?’” One of the pictured men later lamented, “They use you personally to instill this fear of us and this disgust of a gay couple … It makes you feel unequal.” ⁵

Other highlights from 2012 alone include a nationwide summer boycott and counteracting “buycott” of the fast-food chain, Chick-fil-A, over its founding family’s vocal and financial activism against such a right. ⁶ In spring, a North Carolina referendum followed a dominant trend by banning marriage between same-sex partners in the state constitution, while November referendums prevented a similar ban in Minnesota and legalized such marriages in Maine, Maryland, and Washington State. ⁷ A day after the North Carolina vote, President Barack Obama became the first sitting president to publicly support same-sex marriages, though not necessarily as a constitutional right. ⁸ His Democratic Party’s election platform endorsed “marriage equality,” ⁹ sharpening a contrast with trenchant Republican opposition amid growing dissent in both parties. ¹⁰ Meanwhile, litigation in several federal courts challenged Congress’s 1996 Defense of Marriage Act (DOMA) that recognizes only opposite-sex marriages for federal tax, entitlement, and other purposes. ¹¹

California often holds the spotlight, largely by virtue of some widely watched lawsuits. Notwithstanding DOMA, most regulation of marital status falls to states. ¹² California banned same-sex marriages twice by statute, or the ordinary, express laws passed by legislation. In 1977, the legislature tightened the civil code after some couples exploited a gender-neutral loophole. ¹³ In 2000, voters passed a ballot initiative – California’s mode of direct democracy – that further codified, “Only marriage between a man and a woman is valid or recognized in California.” ¹⁴ In 2004, the mayor of San Francisco ordered clerks to issue marriage licenses to same-sex couples anyway, but the California Supreme Court quickly nullified his edict as municipal overreach (Lockyer v. City and County of San Francisco, 33 Cal. 4th 1055 [2004]). Same-sex couples then challenged the statewide regime as a civil rights violation of the state constitution.

That case – actually six consolidated as In re Marriage Cases or the Marriage Case – reached the state supreme court in 2008. As must the federal bench delineate the federal constitution, the California judiciary is often final arbiter of the scope of state constitutional law. As is typical, a trial judge received evidence and ruled, an intermediate appellate court assessed parties’ objections to (and defenses of) that ruling, and the California Supreme Court accepted a final appeal. That spring, the court held that the statutes failed the constitutional test, allowing the most populous state’s almost 100,000 same-sex couples to marry if they chose. ¹⁵

The case turned on two principles of the California constitution that largely parallel its national counterpart: equal protection and fundamental rights. ¹⁶ Equal protection forbids the government to discriminate against an identifiable group unless it has a justifiable goal (rational basis) and uses legitimate means to achieve it (means rationally related to the purpose). Courts more stringently require a “compelling” government interest and “necessary” means when the classification either affects a class of citizens historically subject to discrimination and prejudice or affects the exercise of a “fundamental” right. The categorization of a right as fundamental also means that the government may not forbid the exercise of that right or “unduly burden” it. (This latter doctrine is known as substantive due process.)

Several complications arise when assessing a particular governmental action under these principles. What is justifiable and legitimate, and what is undue or fundamental, depends largely on judgments about the particular group or right, which may change across time and circumstance. Even a jurisprudentially developed hierarchy of groups and rights that warrant stricter or lesser “scrutiny” of a law – as in the compelling interest test mentioned in the previous paragraph – does not always predict its vindication or annulment. Sometimes, a discriminatory classification that fails solely to trigger strict scrutiny under equal protection may still do so by impinging a group’s fundamental right.

For example, both supporters and opponents of same-sex marriages frequently analogize to interracial marriages in both court and civic discourse. Doctrinally, racial discrimination invites strict scrutiny because of post-Civil War efforts to rectify slavery, though it took almost a century to invoke that standard and its first application approved the internment of Japanese-Americans during World War II (Korematsu v. United States, 323 U.S. 214 [1944]). Inhibitions of marriage also generally receive strict scrutiny because courts consider it a primordial institution. The US Supreme Court invoked both avenues to overturn interracial marriage bans in 1967 (Loving v. Virginia, 388 U.S. 1 [1967]) – something the California Supreme Court did in 1948 (Perez v. Sharp, 32 Cal. 2d 711 [1948]).

By contrast, federal courts give more leeway to laws that discriminate on the basis of sexual orientation, as did the California Supreme Court until first applying strict scrutiny in the Marriage Case itself. Nevertheless, after upholding sodomy laws as recently as 1986 (Bowers v. Hardwick, 478 U.S. 186 [1986]), the US Supreme Court applied a lower level of scrutiny to invalidate them as irrational infringements of liberty in 2003 (Lawrence v. Texas, 539 U.S. 558 [2003]). That decision was based on the US Constitution, which overrides state law in regard to these principles, and indirectly encouraged the Californian and other marriage cases. Furthermore, in Perry v. Brown II (681 F.3d 1065 [2012]), a federal court applied this lesser scrutiny under the US Constitution to effectively reinstate the Marriage Case decision after subsequent events undid it under state law. Those events include another voter referendum and the return to the California Supreme Court it triggered, discussed further in this article’s conclusion.

To summarize, the Marriage Case and similar ones presented intertwined questions: does equal protection permit the state to deny same-sex couples the marriage status it provides opposite-sex couples, and do citizens have a fundamental right to choose their spouses regardless of sex? ¹⁷ A further twist heightened the emphasis on equal protection. Since 2005, California has implemented a “domestic partnership” statute specifically intended to afford same-sex couples attributes of marriage. ¹⁸ The juxtaposition of these separate statuses often narrowed debate to whether or not this attempt at parity, rather than uniformity, satisfied the constitution. The distinction placed equal protection language directly in the foreground. It also tinged fundamental rights talk with equal protection by begging whether domestic partnership’s similarity to marriage fulfilled or cheated the essence of the generic constitutional right to marry. ¹⁹

2 The Liberal Constraint of Cultural Neutrality

The core constitutional values at stake quintessentially implicate the US legal profession’s commitment to liberal jurisprudence, by which I mean analysis reasoned as to propositions and unbiased as to parties. ²⁰ Reasoning excludes reliance on personal, moral, or other considerations not deducible logically or citable to legal rules of decision. The novel question of constitutional interpretation presented by the Marriage Case largely foreclosed the last avenue because neither precedent nor statute governed it straightforwardly. Logical deduction therefore bore the burden. Non-bias encompasses disregard for parties’ cultural attributes, whether commonly listed ones like race, gender, and age, or any other, such as how someone talks or dresses. It precludes basing legal conclusions on underlying value judgments that make an issue like same-sex couples’ right to marry socially controversial in the first place. These two aspects combine into a professional stance of cultural neutrality that compartmentalizes law and “filters” – incompletely, as Section II will address – the social and moral context of other spheres of life from the act of legal analysis. ²¹

Although cultural neutrality aims for consistency in the rule of law, it can paradoxically constrain decision-making by producing counterbalanced arguments. Equal protection is especially tricky in this respect because it exists to assess classifications that draw or adopt cultural differentiations. For example, proponents of same-sex couples’ right to marry frequently describe a quest for “equal rights,” which their opponents cast as a claim for “special rights.”

That opposition reflects deep contradiction within cultural neutrality. Equal rights invokes what legal scholar Robin West, writing about the marriage debate, calls the universalist assumption of liberalism, which requires respect for all people on the basis of certain shared, essential attributes. ²² But universalism is ambiguously abstract about what humans share in common. For those who believe that the existence of a liberal society depends on an irreducible complex of biological, intergenerational relationships secured by the institution of marriage, allowing same-sex couples to participate in that institution constitutes an illiberal deviation ²³ – or “special right.”

This counterpoise played out during oral arguments in the Marriage Case, for instance, in stances toward tradition. Advocates for same-sex couples contended that tradition’s value lies in its resonance for everyone, rather than its conventional “misuse” to exclude gays and lesbians from marriage through biological or other criteria. Asked how same-sex marriages would undermine tradition, an adversary averred, “There’s sort of a universal argument by the plaintiffs [technically, petitioners] that every difference is negative, but some of the differences are just, if you founded another – a parallel institution, you’d have some differences.”

Contradiction persists at every level. Some critics argue that equal rights is not universalist because “normalizing” some relationships under the umbrella of marriage only increases the isolation of people for whom marriage is impossible or impractical. ²⁴ As West observes, liberalism also assumes that every individual is capable of, and therefore entitled to, personal autonomy, leading to a conventional liberal argument in favor of same-sex marriage rights that posits an opt-in or -out with respect to a universally available institution. But these critics see instead illiberal marginalization of other ways to pursue personal, kinship, and community values when marriage thus is assumed to be universally valuable. ²⁵ In fact, this critique was totally sidelined in the Marriage Case because both parties embraced the institution.

Special rights is similarly ambiguous, in at least two ways. One echoes the previous paragraph in a general attack on the institution of marriage by critics who argue that the sanction of law confers distinct, consequential, and unfair “special status” on anyone, straight or gay, who marries compared to those who cannot or will not. ²⁶ The other more narrowly reverses the phrase’s bite, as when a prominent advocate of same-sex couples’ marriage rights being interviewed on Los Angeles public radio in 2012 questioned why a hostile caller’s church should have “special rights” to determine civil status for all Californians. ²⁷

To summarize, a commitment to cultural neutrality places a discursive constraint on categorizing homosexuality as like or unlike heterosexuality in legal arguments about state-sanctioned marriage. Whatever they believe and say about sexual orientation in other contexts, advocates and arbiters in the marriage debate frame legal positions to meet the liberal requirements of equal protection. But each justification for one outcome can be countered by realigning the underlying liberal rationales to support an opposite conclusion. ²⁸

It is worth emphasizing that the constraint is an empirical fact with which people contend as a legal encounter unfolds, whatever a legal theorist may later know about a case’s outcome or conclude about a particular argument’s merits (and theorists themselves become participants in ongoing debates that reproduce the constraint). How people contend with it still implicates legal theory because of a key legal realist insight from a century ago. ²⁹ The realists discredited for American jurists the “formalist” notion that legal propositions can be justified logically and conclusively without recourse to non-legal circumstances and values. ³⁰ Legal actors’ discursive activities, such as the rhetorical effort to display cultural neutrality, are jurisprudentially salient all the more for their enmeshment in broader cultural discourses (which, again, ultimately enmesh the jurist as well). Observing those activities follows the life of the law, including patterns of liberal contradiction that may look static from a bird’s-eye view but respond to efforts to direct them as much as they confine those efforts. Section II says more about the range, contour, and contingency of meaning that characterize this dynamism in language use.

1 Pointing to Legal and Cultural Meaning Simultaneously

So far, I have described a challenge created by separating legal categorization from cultural categorization. Culturally, the institution of marriage, which many Americans invest with deeply held values about personal and social worth, has become a proxy for how people think those values apply to homosexuality in comparison to heterosexuality. Lawsuits like the Marriage Case have been one result. But, legally, the entrenched commitment to cultural neutrality precludes express reliance on cultural value judgments when considering the state’s role in sanctioning marriage. Culturally neutral legal arguments, however, are ambiguous. In the Marriage Case, California’s statutory bifurcation of marriage and domestic partnership only exacerbated the ambiguity because parties could disagree about whether equal protection requires uniformity or parity, which is a closer comparison than uniformity or nothing. ³¹

Two main ideas in this section explore how people work with and through that constraint by expressing legal and cultural stances simultaneously. The first part describes how language indexes, or points to, meaning in partial and indirect ways, which helps explain how webs of contradiction constrain the commitment to cultural neutrality but also afford scope to keep contesting it. The second part describes the interactional organization of that process, specifically during oral arguments, which picks up on the methodological segue that concluded Section I.

Language has “indexical” properties that make it possible – in some ways, unavoidable – to mean something legal and cultural at the same time, to not mean something else with the same words, and to mean the cultural thing only beneath the surface. Indexicality is a bedrock principle of semiotic theory crucial to understanding language’s meaning as it is used by people because it describes how two or more sign objects stand in relation to each other from a speaker’s or listener’s standpoint. ³² For example, smoke indexes fire, and indexes a particular kind of fire depending on further contextualized signs, such as its emanation from a forest or a house, or, in the forest, treetops or a campsite. Similarly, saying, “husband,” refers to a category of person that English speakers conventionally recognize as a married man. But the word also evokes an indexical kin relationship; also by long convention, most English speakers once probably assumed a “husband” had a female “wife.” They still may, owing to the much greater proportion of heterosexual married couples even in places where husbands routinely have husbands. Changing indexes may even affect the referential, or dictionary-like, meaning of husband as a married man: some women married to women call their female partners “husbands.” ³³

Indexicality adds texture to the paradox whereby cultural neutrality’s malleability generates alternative legal arguments but then counterweighs them. To start, when someone formulates an argument, she implicitly or explicitly indexes additional meanings that inform that formulation. For example, invoking equal rights to demand uniform access to marriage indexes the belief that homosexuality and heterosexuality are not saliently different in this regard, which further indexes attitudes toward sexual behavior, child-rearing, secularism, and the role of law. In other words, what she means by the legalistic phrase is highly context-dependent. ³⁴

Furthermore, what she means is necessarily partial and selective, that is, ideological (in a non-pejorative sense). ³⁵ A different complex of indexes might lead her to say instead that domestic partnership provides rights equal to marriage but does not overreach to conflate cultural associations that voters and legislators have repeatedly chosen to distinguish. Crucially, selecting one alternative over another is not the simple reflection of political or moral positions in the legal argument, or their addition to it. ³⁶ Rather, stating a legal proposition about equal rights always “entails” or “presupposes” ab initio an ideological set of cultural indexes. ³⁷ The proposition is legal and cultural at the same time, so the speaker (sincerely) can display cultural neutrality even as she inevitably points to non-neutral associations.

Finally, this meld can work indirectly, so that non-neutral associations are indexed through unspoken secondary associations that may themselves seem neutral or tangential. ³⁸ Case postures themselves often skew to cast homosexuality as raising problematic legal questions about sexuality that heterosexuality does not. ³⁹ For example, although the term, “gay [or same-sex] marriage,” remains widespread and persists even among some supporters of same-sex couples’ right to marry, many advocates have abjured it as parochial. Their self-correction parallels polling that indicates much stronger public acceptance when the issue is phrased as “marriage equality” than gay marriage. ⁴⁰ California-based comedian Liz Feldman captured the indexes behind this imbalance in a 2008 joke that played on her own self-identification as a “gay lady”:

Personally, I am very excited about “gay marriage,” or as I like to call it, “marriage.” Because I had lunch this afternoon, I didn’t have “gay lunch.” And I parked my car, I didn’t “gay park” it. Although, I totally parked like a fucking fag! ⁴¹

The joke calls attention to how the adjective, “gay,” makes any resulting phrase stand out as unusual, as well as to its often pejorative meaning in everyday talk, which Feldman expletively accentuates with an illicit epithet.

The difference the adjective makes affected participants’ approach to equal protection at all stages of the Marriage Case. No one explicitly endorsed cultural indexes of “gay,” let alone the most negative ones. But advocates and judges who said the petitioners claimed simply a right to marry reached doctrinal conclusions in their favor, whereas those who said the petitioners wanted a unique right to gay or same-sex marriage ended oppositely. Each group accused the other of “going beyond mere semantics” to contaminate legal reasoning with cultural specificity, that is, ideology. ⁴²

To summarize, it is possible to display cultural neutrality in legal arguments, but it is impossible to prevent cultural ideologies from attaching indirectly to those arguments. Arguments that counterbalance on the legal surface trail different cultural entailments beneath it. This composite of linguistic property and legal commitment patterns, but does not predetermine, communicative settings like oral arguments, which therefore afford opportunities to negotiate prevailing meanings of a sociolegal code such as equal protection. ⁴³

2 The Conversational Organization of Oral Arguments

A real-time conversational interaction between two or more people accentuates a fundamental question about communication: how do people collectively organize what they say and hear (or gesture and see, or write and read), in a way that builds at least enough mutual understanding to coordinate shared activity? Conversation analysts seek answers not only in what is said in a turn at speaking, but also how turns chain together sequentially, including how people handle “trouble” like interruption, disagreement, or miscomprehension. ⁴⁴ They examine how participants signal their own understandings through sequential moves as well as patterns across interactions. Institutional settings tailor ordinary conversation by assigning participants’ roles with different goals; loosely or tightly scripting the words and ways participants speak; and establishing expectations as to what successful execution of the shared task will accomplish. ⁴⁵

The further specificity of oral argument magnifies the constrained flexibility of cultural neutrality. ⁴⁶ First, the only licensed speakers are either lawyers, who speak one at a time at a podium, or judges usually arrayed on a raised dais facing the podium. Both lawyers and judges speak as representatives rather than in a personal capacity. Lawyers advocate for clients (whose interests may represent broader coalitions or abstract principles), while judges display impartiality on behalf of the legal system as a whole.

Second, the turn-taking structure reflects that division of labor while facilitating adversarial dialogue. Formally, a lawyer begins with an opening statement, after which judges ask questions and lawyers answer them. This distribution buttresses judicial impartiality and inquisitiveness in service of deliberation. It also favors maximizing advocates’ floor time to make a case. In practice, however, judges frequently argue points and interrupt lawyers, often tacking on an interrogative or apology in a nod to the formal ground rules.

Finally, oral argument is an intermediate phase. It occurs after parties file briefs detailing their positions and before judges issue a decision, which usually consists of a written order directing a lower court or government official how to act, along with an opinion explaining the majority’s reasoning and sometimes a minority’s dissenting viewpoint. No final outcome occurs during oral arguments; the clock runs out on each lawyer’s time.

These three features intensify characteristics of liberal legal interpretation found also in wider debates and other courtroom proceedings. ⁴⁷ The only speakers are committed to voicing culturally neutral positions, which is not true in interactions like witness questioning. The only format is back-and-forth debate, unlike the steady accumulation of trial evidence. And the only agenda is to continue debating, rather than exhaust that accumulation. Everything conspires to reiterate counterbalanced legal arguments as one person’s invocation of a doctrine like equal protection becomes raw material for the next person to repurpose.

At the same time, these features also magnify the cultural ideologies attached to the effort to work through that constraint. Because each statement of a legal position also indexes an ideology, and because each successive statement occurs in a slightly altered context as the ongoing conversation flows along, small shifts in ideologically inflected meaning accrue that never fully overcome the basic counterbalance but provide conversational momentum and shape nonetheless. This process compressed into the grammar of a single legal word in the Marriage Case as participants faced pressure to debate the law rapidly and convincingly in public. ⁴⁸

EXAMPLE 1

I examine these lines in six segments.

First, in Lines 1–5, Chin reiterates the culturally neutral framework of uniformity versus parity and advances parity. ⁵¹ Whereas Stewart had just told Justice Moreno that “partial progress towards equality” is insufficient, Chin asks her to “concede” “substantial progress.” Not only is substantial more than partial, it also commonly connotes sufficiency or effectiveness in legal parlance. In addition, Chin’s mathematical expression, “domestic partners equal to marriage,” conveys equivalence even more directly than Moreno did. Stewart acquiesces, minus “substantial.” He interrupts to insist on that modifier.

Second, in Lines 6–7, Stewart explicitly adopts binary equality in opposition to the continuum of progress. As she did previously in response to Moreno, she converts Chin’s adjective, equal, into the noun, equality. She accepts Chin’s insistence on substantial, but only to state unequivocally that “substantial equality is not equality,” even before responding to his actual question with “substantial progress is not equality.”

Third, in Lines 8–9, Chin begins to pluralize equality as a grammatical and conceptual counterweight to Stewart’s argument. The pluralization remains implicit in the phrase, “the primary inequality,” which suggests additional, secondary inequalities. Yet it already holds advantages over the now-abandoned rubric of progress. Ranking enumerable inequalities, such as federal benefits, retains the sense of degree conveyed by progress, but (in)equality is a legal term. Pluralizing it also creates discrete units. Chin thus matches Stewart’s legal terminology with a proposal to identify and incrementally remedy domestic partnership’s residual deficiencies. The interpretation most consistent with Stewart’s prior and subsequent speech is that her unelaborated negative response totally rejects this framework of divisibility. Chin, however, chooses to interpret her response merely as disagreement that the federal marriage benefit is the primary inequality.

Thus, fourth, in Lines 10–12 (first half), Chin cements his framework by explicitly pluralizing “the other equalities.” Inequalities conceivably might have been remedied toward a holistic notion of equality. One of the petitioners’ briefs uses it this way in arguing that “the Legislature’s findings recognize that domestic partnership is not a complete remedy for the inequalities faced by same-sex couples.” ⁵² But fragmenting equality itself into discrete units suppresses the holistic notion entirely; all that remains is a list of technical equalities that can be addressed by talking solely about improving domestic partnership’s comparability to marriage. In the first part of her response, Stewart accepts this agenda and refers to a “number of tangible differences” listed in the written briefs.

Fifth, in Lines 12 (second half)–15, Stewart reverts to the universal deep meaning of marriage as the “more important” argument for uniform equality. This time, she lists kinship values of loyalty, intimacy, and commitment that “everybody understands” marriage to “communicate” (read: index) before Chin interrupts again. This reversion indicates that Stewart detects and seeks to counteract an exclusionary ideology beneath Chin’s culturally neutral pluralization.

At this point, the competing singular–plural operations on the legal term map fully onto the uniformity–parity alternatives of legal status and likeness–unlikeness ideas about sexual orientation. After Moreno juxtaposed the alternative statuses in terms of equal protection, Stewart deployed singular equality to promote marriage as the superior, culturally neutral solution. Chin introduced plural equalities to re-elevate domestic partnership on the same basis. At the same time, Stewart’s holistic, binary equality presupposed and reinforced the sameness of homosexuality and heterosexuality with respect to the values indexed by marriage. Her reversion to deep meaning did likewise. Chin’s set of equalities drew on an ideology of significant dissimilarity instead, which then justified maintaining the distinct status of domestic partnership while progressively achieving its comparability with marriage. The grammatical elasticity of a shorthand legal term afforded some flexibility to leverage its legal and cultural ambiguities. The resulting arguments reproduced the inertial constraint of cultural neutrality but also sequentially nuanced it.

Finally, in Lines 16–18, Chin’s sharp attack on deep meaning as “placing rhetoric over reality” introduces the last piece of my argument, which is that context sometimes gave one linguistic formulation enough momentum to escape the constraint and gain traction over its competitor, if only temporarily. Case-wide context prominently included the existence of the domestic partnership statute, which allowed Justices Moreno and Chin to frame the debate as a choice between two well-defined, doctrinally plausible alternatives and then lean toward improving the legislature’s decision to keep the statuses separate but comparable. Nested within was the situational context of how Stewart and Chin arrived at these final lines of exchange in this short stretch of the proceeding.

Chin’s accusation reproduces an ancient Socratic attack on rhetoric that echoes in the norms of modern liberal jurisprudence and its modes of practice, including the dialogic structure of oral arguments. ⁵³ It seizes on the cultural, rather than legal, purchase of deep meaning to portray Stewart’s phrase as camouflage for an unreasoned, ideological preference to erase distinctions between sexual orientations that the legislature and voters repeatedly affirmed. To some extent, this back-and-forth simply adds one more permutation to the preceding counterbalances. Chin’s claim on “reality” equally disguises a cultural preference. For her part, Stewart resists and continues to expound the deep meaning of marriage.

At the same time, however, Chin’s charge lands a blow. When Stewart first invoked deep meaning in response to Moreno, it was still possible to speak as if they agreed on why it all boils down to the m-word: “you’re right,” she told him, before offering the theory of deep meaning rather than the shallow meaning Moreno’s question implied. By the end of Example 1, however, Chin has elaborated the independent, culturally neutral credentials of domestic partnership, largely by pluralizing equalities. At a minimum, that reinforcement blunts the claim that the universal value of deep meaning necessitates the extension of marriage.

Two pieces of evidence indicate that participants found that mitigation effective. First, Chin’s own accusatory question about rhetoric is qualitatively different from his earlier ones. It does not solicit the speech-act of “concession” as to a propositional point, as his first two questions did, or straightforwardly ask for propositional information about “the primary inequality” or “the other equalities,” as in his second two questions. This time, he principally attacks her argumentative process, casting it outside the mode of liberal jurisprudence.

Second, after other judges moved to other topics for five minutes, Justice Joyce Kennard took the floor and constructed a reversal against Chin and in favor of Stewart that concluded with a direct reference to Example 1. Kennard controlled the floor for five minutes with very long questions. She voiced them as if merely restating Stewart’s arguments through rhetorical devices such as, “As I understand your position.” She correspondingly limited Stewart’s answers to “That’s correct” by stretching out her palm and asking, “right?” at the end of each question. In between, she framed and then executed the reversal.

As for the framing, Kennard never used any form of the word, equal, but instead spoke of rights to reformulate Stewart’s case for uniform equality. As I noted in Section I.1, impingement of a fundamental right can be a first step in equal protection scrutiny. The following key sentences funneled toward that idea:

There is nothing in that state constitution that says there is a right to same-sex marriage;

There is no express provision talking about the right to marriage but … the courts have concluded that the constitution provides an implicit right to marriage;

Based upon [Perez v. Sharp] … the right of marriage include[s] the freedom to choose one’s spouse;

You do not see a distinction between allowing interracial persons to marry and allowing persons of the same sex to marry;

Marriage consists of a core bundle of rights pertaining to privacy, autonomy, freedom of expression, association.

In speaking about the constitutional text, Kennard glides from a right to same-sex marriage to simply a right to marriage. In Section I.2, I described how use of those respective phrases correlates with conclusions against and for same-sex couples. In the same breath, Kennard observes that the constitution says nothing expressly about anyone’s right to marry; the judiciary has affirmed it implicitly. She preempts an argument that homosexuals might marry opposite-sex partners (see footnote 17) by observing that the liberty interest at stake includes choice of spouse. She grounds that observation in the California case that recognized interracial marriages, and draws a direct parallel between them and same-sex marriages with identical phrasing. Lastly, whereas Stewart had listed implicit rights like loyalty and intimacy in her talk of deep meaning, Kennard enumerates more explicitly protected ones: privacy, which the state constitution expressly protects; ⁵⁴ autonomy, which is a synonym for “liberty” and “free and independent,” both also inked in that document; ⁵⁵ and generic First Amendment expression and association rights.

The cumulative effect is to place same-sex couples on equal footing with opposite-sex couples with respect to the rights encompassed by marriage. Put another way, Kennard restates deep meaning in legally cognizable terms. She simultaneously aligns the unspoken cultural indexes of homosexuality and heterosexuality together under those terms.

Kennard’s last questions, transcribed in Example 2, use this rights-oriented frame to turn the tables on her colleague.

EXAMPLE 2

In Lines 1–5, Kennard refers explicitly to Chin’s very first questions to Stewart in Example 1, which asked her to “concede” the “substantial progress” made by domestic partnership law. While replicating “concede,” however, Kennard substitutes “rights” for “progress.” In Line 7, she next substitutes “all the substantive” for “very substantial.” This completeness echoes Stewart’s demand for full equality rather than partial progress. Kennard arranges domestic partners and married couples on either side of “all the substantive rights” in order to collapse the statuses together – in contrast to Moreno’s and Chin’s equation-like phrasing around “equal.” That collapse is her intent is clear from Line 8, when she transfers the act of conceding to the state. The rights frame finally resolves into an equal protection one with her conclusion in Line 9 that “there is no valid ground for distinction.” Finally released to respond at length, Stewart immediately returns to talking about “this state’s notions of equality.”

Kennard’s intervention both displays an understanding that Chin’s earlier line of questioning had impacted the equal protection debate and also levels its own impact in light of the case and conversational contexts. In her set-up, Kennard bolsters the cultural neutrality of deep meaning with her rights framework, while importing cultural indexes like the elision of the “same-sex” modifier before marriage. She thus takes sides with Stewart over Chin.

Kennard then applies the rights framework to turn Chin’s solicitation of Stewart’s concession against him. Like Chin, Kennard leverages the existence of the domestic partnership statute, but she characterizes the legislature’s enactment of that statute as a logical capitulation to uniformity rather than the parity it perhaps intended (and Chin reinforced). Kennard does all this without uttering the word, equality. But her punch line cuts to the heart of equal protection doctrine, and Stewart’s uptake in terms of singular equality indicates that the next participant to speak understood Kennard to be intervening in the contest between equality and equalities.

That grammatical contest revived outright in Example 3 more than one and a half hours later during an exchange between Justice Kennard and Mathew Staver, representing the Campaign for California Families in defense of the status quo.

EXAMPLE 3

Through a parallel structure of “you have [X] … and you have [Y],” Staver advocates parity, rather than uniformity. In Lines 1–2, Staver, like Stewart before him, asserts a “universally recognized” value of marriage. But he means its restriction to opposite-sex couples as a traditional baseline prerequisite to liberal culture (see Section I.2). In Lines 3–6, Staver cites Chin as having said domestic partnership provides “all the rights” of marriage. (In fact, Kennard said “all the”; even beyond Example 1, Chin stuck to “substantially.”) Staver then concludes the comparison with a declarative statement that “you have these kinds of equalities,” echoing Chin’s earlier pluralization.

In Line 8, Kennard dismisses “talk about equalities” in the most explicit swipe at another participant’s grammatical usage across these examples. She shifts the frame from domestic partnership’s elements on which the plural form focused, in order to ask, in Line 9, what “adverse social consequences” might follow uniform application of marriage. This loaded question forces Staver to address cultural indexes.

Context once again influences the argumentative traction, to Staver’s disadvantage. As his argument about “universal recognition” indicates, advocates on his side took pains to highlight the benefits of opposite-sex marriage and avoid sounding anti-gay. He deflects with another expression of universal value, a scientific metaphor supplied as “just an illustration” that “you can’t change that name” of “[table] salt” to include something other than one sodium and one chlorine atom “without having consequences.” Another judge weighed in, “finding that argument to be a little elusive.” She and a third judge re-asked Kennard’s question, pressing Staver for his “best argument.”

The singular–plural dichotomy helps explain the problem. The inclusivity of Stewart’s universal deep meaning was susceptible to recovery in service of uniform equality. When Chin neutralized equality with equalities, Stewart resorted to universal deep meaning, inviting Chin’s attack on deep meaning as rhetoric, Kennard’s later reformulation of deep meaning in legal terms, and Stewart’s resumption of talk about “this state’s notions of equality.”

By contrast, the exclusivity of Staver’s universal recognition is not continuous with the equalities of parity. When Kennard set aside equalities, Staver no longer could rest on the adequacy of parity, but had to elaborate his justification for differentiating between sexual orientations. He either overtly breached cultural neutrality or, as it happened, offered vague allusions to “consequences” that encouraged additional skeptical questions.

In these examples, participants in the Marriage Case oral argument co-constructed a major argumentative arc around the grammatical difference between equality and equalities. Both the singular and plural forms display cultural neutrality. The connotation of equality directly supported the uniform application of marriage and indirectly incorporated the belief that homosexuality and heterosexuality are alike in the salient underlying respects. Equalities lent itself to the continuation of domestic partnership on par with marriage and unlikeness between the sexual orientations. This three-layered dichotomy of language, law, and culture was neither predetermined nor outcome-determinative, but patterned in light of both the case-wide and immediate conversational contexts.