Abstract

Excerpted From: Courtney Megan Cahill, (Still) Not Fit to Be Named: Moving Beyond Race to Explain Why ‘Separate’ Nomenclature for Gay and Straight Relationships Will Never Be ‘Equal’, 97 Georgetown Law Journal 1155 (June, 2009) (256 Footnotes) (Full Document)

Last May in In re Marriage Cases, the California Supreme Court considered whether same-sex couples were constitutionally entitled to the name “marriage,” in addition to the benefits and obligations that flow from that legal status. Prior to that landmark case, the state of California had extended most of the substance of marriage to same-sex couples under the label of “domestic partnership.” The Marriage Cases plaintiffs, however, wanted more: they wanted, in short, for the state to recognize their relationships in the traditional and conventional lexicon of marriage.

As is widely known by now, the court in that case ruled that California was required to recognize same-sex “marriage” under its constitution, finding that the state violates state constitutional liberty and equality guarantees when it“reserv[es] the historic designation of ‘marriage’ exclusively for opposite-sex couples.” As is also widely known by now, California's electorate in the 2008 election voted effectively to overturn that decision by amending its constitution to define “marriage” in opposite-sex terms. That amendment, formerly known as Proposition 8, provides that “[o]nly marriage between a man and a woman is valid or recognized in California.” Post-election data indicate that supporters and opponents of Proposition 8 collectively spent $75,000,000 on this ballot initiative, making it “one of the most expensive ballot measures ever waged” $75,000,000 struggle, it turns out, over a name. At least for now, then, a same-sex couple in California must legally refer to itself as “domestically partnered” rather than as “married.”

The name issue, which one jurist has described as a “pitched battle over who gets to use the ‘m’ word,” has assumed center stage in marriage equality litigation. In addition to being the focus of the California Supreme Court's marriage equality decision and the subject of one of the most costly state ballot initiatives in history, it is an issue that the high courts of Massachusetts and New Jersey considered in 2004 and 2006, respectively, and that the high court of Connecticut ruled on in another landmark marriage equality decision that issued just one week before the 2008 election. It is also an issue that will undoubtedly be before several courts in the near future as more and more states decide to offer same-sex couples the substance of marriage but only under a different name, such as “civil union” or “domestic partnership”--a “compromise” approach to the same-sex marriage question that appeals to politicians and to the public alike. While most states, according to a recent Pew Research Center survey, are not ready to extend the right to “marry” to same-sex couples, they are more likely prepared to offer same-sex couples a parallel institution that affords them the same protections and benefits, and imposes on them the same obligations and responsibilities, as those afforded to and imposed on their married opposite-sex counterparts.

In analyzing the issue of nominal difference, legal actors have offered several reasons why “names matter,” and why it is unconstitutional for states like Vermont, New Hampshire, and New Jersey (and Connecticut until just recently) to extend same-sex couples the substantive benefits and responsibilities of marriage, but to call that relationship by another name. They have argued, for instance, that “[t]he words ‘marriage’ and ‘marry”’ are an integral part of the fundamental right to marry. Similarly, they have contended that “[p]rohibiting same-sex couples from using the word ‘marriage’ to describe their relationships sends a message ‘that what same-sex couples have is not as important or as significant as “real” marriage.”’ Most often, though, advocates, courts, and commentators have invoked the discredited legal doctrine of separate-but-equal in support of the proposition that the nominal distinction between “marriage” and “civil union” (or “domestic partnership”) “bestow[s] a separate status on people (whatever its tangible ‘equality’),” one that “fundamentally, and impermissibly, diminish[es] their humanity.” This “separate status,” they argue, is no more constitutionally permissible today than it was in 1954, when the Supreme Court ruled in Brown v. Board of Education that the doctrine of separate-but-equal violated the United States Constitution's Equal Protection Clause.

This Article provides a novel way to consider why the use of separate nomenclature to describe gay and straight relationships will never be equal, even if those relationships are substantively identical, as well as why something that looks like a stepping stone to equality (civil unions/domestic partnerships) is, in fact, discriminatory and harmful. While advocates routinely turn to the repudiated legal doctrine of separate-but-equal to support their contention that nominal separation is unconstitutional, they have overlooked the history that best explains why that is so. That is, they have overlooked the most compelling reason why the nominal separation between “marriage” and “civil union” (or “domestic partnership”) will never satisfy genuine equality: because it hearkens back in any number of ways to homosexuality's criminal past, and, in particular, to a time when same-sex intimacy was known simply, and derogatorily, as “a crime not fit to be named.”

More specifically, the separate-but-equal analogy to nominal separation is woefully incomplete without an understanding of the issues of naming, language, and representation that have historically plagued same-sex intimacy in the law. This Article submits that the problem with the state's creation of a separate nominal status for same-sex couples is not just the fact that separation connotes second-class status and therefore inflicts dignitary harm on gays and lesbians, and not just the fact that nominal substitutes like “domestic partnership” and “civil union” lack the intangible qualities of the name “marriage,” as many advocates have suggested. Rather, or in addition, nominal separation is problematic, constitutionally as well as morally, because it points back to a time when homosexuality was not only criminalized, but also linguistically marginalized--to a time when it was marked by an “economy of silence” or a “practice of silence,” in the words of one commentator. That is, for centuries, homosexuality was “structured by its unnameable quality,” because same-sex intimacy was either not discussed at all or simply referred to as “that which should remain unnamed.” Indeed, at most, legal and non-legal discourse together relegated same-sex intimacy to a mere “quasi-nominative” status in law and culture, something sort of named but not entirely, and certainly not in affirmative terms.

This Article argues that it is that history that best explains why “names matter” to gays and lesbians and why the nominal separation between legally-recognized gay relationships and legally-recognized straight relationships will never represent true equality, even if the substance of those relationships is identical. It contends that nominal separation will always be a sign not just of sexual minorities' criminal past, but also of their unnameable past--as well as of the repugnance that inspired it and the harms that flowed from it. It ultimately suggests that the separation between “marriage” and its nominal substitutes will never be equal because it both reflects and perpetuates something that has applied to same-sex intimacy for centuries: A speech--or, more appropriately, a name--taboo. Indeed, when the state refuses to extend “the ‘m’ word” to same-sex couples, as more than one court has tellingly framed the name issue, it reminds gays and lesbians that they have always been excluded from names in the law and that they have suffered, and continue to suffer, a variety of harms on account of that exclusion. It reminds them, in short, that the “gay closet”--or, more specifically, the gay linguistic closet--remains “a shaping presence” in their lives.

This Article will proceed as follows. Part I will provide an overview of the name issue, including additional information with respect to how and why that issue has arisen and a short summary of its treatment by those courts that have considered it. Part II will then look more closely at the separate-but-equal analogy to nominal separation, the principal doctrinal lens through which advocates, commentators, and courts have analyzed the name issue, and briefly consider what is largely missing from the deployment of that analogy in this context: a sense of history, and, specifically, of the history that will prove exactly why a separate nominal status for same-sex relationships will never be equal, but rather always “viewed by both [lesbian and gay people] and by others as a badge of inferiority.”

To that end, Parts III and IV will provide a fuller account of why officially-recognized gay and straight relationships will never be equal if they are named differently. Part III will survey the “economy of silence” that marked homosexuality's rhetorical past, which includes the practices of (1) not talking about same-sex intimacy at all and/or (2) referring to it in a language of negation--that is, as something so abhorrent and distasteful that it could not, or should not, be named. Moreover, this Part will suggest the principal reason for, or motivation behind, that rhetorical tradition as well as the harmful effects that it produced. Part IV will then draw from that history, and from Part III's analysis thereof, to argue that the nominal separation between “marriage” and its so-called linguistic equivalents will never be equal, even if the substance of those relationships is identical, because that separation both reflects and perpetuates homosexuality's disgust-driven rhetorical past and the harms that flowed from it, a past that should no longer play even a residual role in our legal order for reasons discussed below.

This Article has two objectives. Its first and more narrow objective is to supplement the primary doctrinal argument on which advocates have relied when challenging the constitutionality of nominal separation--the separate-but-equal argument--with a history that is unique to homosexuality. It contends that the separate-but-equal analogy not only is incomplete, but also fails to do the work that it must do to explain why nominal difference is uniquely injurious to gays and lesbians. By moving beyond a raced-based civil rights paradigm to challenge contemporary forms of sexual orientation discrimination, this Article reminds readers--including judges who will be considering the name issue for years to come--that nominal discrimination against gays and lesbians is immoral and unconstitutional not just because it evokes a time when systemic racial and ethnic discrimination was tolerated and encouraged, but also, and more important, because it evokes a time when homosexuality was so contemptible that it could not be named at all. Moreover, viewing the increasingly litigated “‘m’ word” issue through an historical lens that is unique to sexual minorities offers advocates for marriage equality an opportunity to avoid the charge that they have used race analogies in ineffective and even inappropriate ways in the marriage equality context, a criticism that has become more widespread and more vocal over the past few years and that I will also address in the Parts that follow.

Its second and more expansive objective is to remind the legal community that past forms of discrimination and their resultant harms can manifest themselves in the present in ways that might seem innocuous or insignificant, and that deserve our close attention for that very reason. Legal historians have long observed the extent to which the ghosts of our disinherited and disavowed past persevere in contemporary law in such quiet and understated ways that we are likely to miss them altogether--the extent to which past forms of legal discrimination, prejudice, and subordination persist in “these enlightened times” despite, or perhaps because of, our belief that we have moved past them. The name issue, which has been described by some courts as “new,” “neutral,” “inconsequential,” and merely “nominal,” exemplifies just this phenomenon, as the history that underlies that issue suggests that it is far from any of those things. Quite the contrary, viewing that issue through the lens of history throws into relief just how very old, consequential, and substantive the issue of names is for those who are currently demanding to be legally denominated in the language of “marriage.” More important, viewing the name issue in this way reveals just how very much we continue “to drag our disinherited selves behind us” in the law's regulation of that which it has always been reluctant to name.

[. . .]

In their brief to the California Supreme Court, the Marriage Cases plaintiffs argued that “domestic partnership” status “does not cure the constitutional violations caused by barring same-sex couples from marriage” in part because the name, “domestic partnership,” is a separate nominal status that is inherently unequal. “It is no more acceptable for the State of California to assign a separate family status to lesbian and gay people,” they contended, “than it would be for the State to do so for any other minority group.” To illustrate the problems with the state's desired approach, the plaintiffs went on to argue that “if the State were to determine that Catholics, or those of Chinese descent, or left-handed people were eligible only for domestic partnership, while everyone else remained eligible to marry, the constitutional defect would be unmistakable. It is no less obvious here.”

The separate-but-equal argument is compelling and carries a certain rhetorical force. Nevertheless, the plaintiffs overlooked an invaluable opportunity to argue why names and nominal difference were issues of especial importance to gays and lesbians specifically when they adverted to “other minority groups”--Catholics, the Chinese, left-handed people--in order to throw into relief the “unmistakable” problems with nominal difference. Plaintiffs and their advocates need not look beyond the class that is most immediately affected by nominal separation, sexual minorities, to argue why that separation is problematic, constitutionally as well as morally.

Sexual minorities have long struggled with issues pertaining to names and to naming. This Article has brought into focus just one of those struggles, albeit a significant one, in order to show more precisely why separate nomenclature will never be equal. Indeed, there are any number of name-related issues that gays and lesbians have had to face throughout history, some more recent and others less so. One need only think here of the naming of homosexuality in the nineteenth century, and of the disease or pathology that that name connoted until just recently; or of sexual minorities' struggles with other derogatory names; or of the question of what to name the class at issue itself. It goes without saying that issues of names, language, words, and vocabulary--in short, issues of representation--have always confronted gays and lesbians, and that the new name issue is but the most recent iteration of this phenomenon. When Alan of Lille compared same-sex sex to a grammatical mistake or defect in the twelfth century, he was merely putting a unique spin on a tradition that far preceded him--and, if the recent name issue is any indication, one that would long outlive him as well.

Among those many name-related issues, the focus here is on the speech or name taboo that long surrounded same-sex conduct in legal and non-legal discourse alike because the historic name taboo best explains (1) how or why the new name issue even arose in the first place and (2) how or why nominal separation harms or injures gays and lesbians, something which has eluded those jurists and commentators who have found it difficult to understand how giving gays and lesbians substantive equality in the form of “civil union” or “domestic partnership” status constitutes a form of harm or discrimination. To be sure, the old name taboo that surrounded sodomy is replaying itself or resurfacing in any number of fascinating ways today, in the form of what is effectively becoming a new name taboo surrounding same-sex marriage--or “the ‘m’ word,” according to some jurists' rather telling locution. Where historically it was sodomy/same-sex intimacy that eluded naming, today it is same-sex “marriage.” While the character of that taboo has changed over time, the salient point here is that being excluded from names and from speech, and being harmed by that exclusion, has been an integral part of gays' and lesbians' lived experience both in the law and outside of it for quite some time. Which is why, then, it is odd that advocates for nominal equality have neglected to place the new name issue in the historical context that seems most naturally suited to it, focused as they are instead on viewing it exclusively through a race-based civil rights lens.

To closely examine the connection between these two name taboos and their harmful effect is to lay the groundwork for developing a more persuasive argument for why separate nomenclature will never be equal, an argument that takes an analogy grounded in race and race discrimination and supplements it with a history that is unique to homosexuality--and, therefore, to the class for whom nominal difference is most injurious. Beyond its strategic usefulness, however, this Article has provided an occasion to witness the power that the past has on the present, the former of which continues to influence the latter in both direct and indirect ways despite our belief that we have moved well past it. As C.S. Lewis once said, “Humanity does not pass through phases as a train passes through stations: being alive, it has the privilege of always moving yet never leaving anything behind.” Here, that thing that has been “left behind” is a very old way of talking about homosexuality (or not, as it were), one that the legal community has so far overlooked because of its deceptively new dress.

Associate Professor of Law, Roger Williams University, School of Law. Ph.D., Princeton University; J.D., Yale Law School; B.A., Columbia University.