03/18/2010 05:12 am ET Updated May 25, 2011

Same-Sex Marriage and the Meaning of Words

In reading through the comments on my recent post about the electoral result in Maine (The Lessons of Maine), I could not help but notice that many defenders of the ban on same-sex marriage argue that marriage has always been defined as a relationship between a man and a woman, that there's no reason to change that traditional definition, and that gays and lesbians should be satisfied with having all the rights married people have, without insisting on re-writing the dictionary.

I have several thoughts about this. First, of course, gays and lesbians do not have "all the rights married people have." Only eleven states currently recognize civil unions (or same-sex marriages). The other thirty-nine do not in any way grant gay and lesbians "all the rights married people have." Moreover, because of the federal Defense Of Marriage Act (DOMA), even those states that do recognize same-sex marriages or civil unions cannot grant gays and lesbians "all the rights married people have," because many of the most important of those rights are determined by the federal government, which refuses to recognize the legality of either same-sex marriage or civil union, even when they have been legally recognized by a state. Thus, the assumption that any gays and lesbians in the United States have "all the rights married people have" is unfounded.

But that is not a fair response to the objection. The objection basically argues that gays and lesbians should work to get "all the rights married people have," but in doing so they should not ask for the word "marriage" to be extended to their relationships. They should be content, in other words, to achieve the substantive content of marriage, without also asking for the name. What, after all, is in a name?

So, let's suppose we were to limit the word "marriage" to relationships among same-race individuals. Civil unions between a black and a white or a white and an Asian could not use the word "marriage." What, after all, is in a name? Or suppose we were to confine the word "marriage" to Christian marriages, and used the word "civil union" for Jewish and Muslim marriages. No big deal, right? Or suppose we were to define the word "marriage" to include only Protestant marriages, and relegated relationships among Catholics to "civil unions." Surely, Catholics wouldn't object. After all, what's in a name?

The point, of course, is that words do matter. Words can insult, degrade, shame, and hurt. Moreover, words shape reality. A rose by any other name might smell as sweet, but if we artificially give different names to two varieties of roses, over time we would come to think of them quite differently. And in the same-sex marriage context, there can be no mistaking the implication of the use of a different word. It is, and is meant to be, insulting, degrading, shameful, and hurtful. As the Supreme Court observed in Brown v. Board of Education, "separate but equal" is inherently unequal.

Those who object to changing the traditional definition of "marriage" will point out that the examples I posited earlier are all distinguishable from the same-sex marriage situation, because we have not traditionally defined mixed-race marriage, or Catholic marriage, or Jewish marriage as anything other than "marriage." Therefore, my examples contracted the traditional definition to exclude what were once included, whereas in the same-sex marriage situation the opponents argue that the traditional definition should not be expanded to embrace gays and lesbians. However specious, or superficial, this distinction might seem, it is not wholly without merit. It is somewhat different to take away a right than to refuse to grant it. in the first place Tradition counts for something.

But for how much? Certainly, in the law, the meanings of words change constantly. The meaning of the word "search," for example, changed over time. At one point, the Supreme Court held that wiretapping was not a "search" within the meaning of the Fourth Amendment, because wiretapping does not involve a physical invasion of the target's home. Forty years later, however, the Court held that wiretapping is a "search" within the meaning of the Fourth Amendment, because it involves an invasion of the target's privacy. I could offer endless similar examples, including such elemental terms as contract, property, torture, obscene, divorce, rape, harassment, militia, and equal.

Of course, the meanings of common words change constantly as well. "Nice" once meant ignorant; "awful" meant amazing; "girl" meant a young person of either sex; "brave" meant cowardice; "bad" once meant bad; and "gay," well, gay once meant carefree. The point is that there's nothing sacred about definitions. They change.

The real question, then, is why some people are so hung-up about the definition of the word "marriage." If someone truly supports granting gays and lesbians "all the rights married people have," why would she bristle at throwing in the word that goes along with the rights? Tradition can't be the answer, because we're really not all that wedded to traditions that hurt and insult people. We've learned to change from coloreds to Negroes to blacks to African-Americans; we've learned to change from chairman to chairperson or chairwoman or chair; we've even learned to change from fag to homosexual to gay. So, what's the big deal about "marriage"?

The answer, I suspect, is that many people think of "marriage" as a religious rather than a legal term. If Christians suddenly started celebrating their birthdays as "bar mitzvahs," it would probably upset some Jews, who would see it as insulting. If atheists started wearing crucifixes to signify their atheism, it would surely perturb some Christians, who might see it as blasphemous. The real flash point about the word "marriage" is that some people strongly associate the word with their religious understandings, and those understandings most definitely do not embrace same-sex relationships. Thus, even if they are willing, as good citizens, to grant gays and lesbians "all the rights married people have," they can't stand the thought of seeing a "sacred" word, and concept, brutalized.

This is a real dilemma. Certainly, such people have no constitutional right to have the state adopt their religious definition of "marriage." Although they may have a strong religious identification with the word, the word has long had a secular meaning and, indeed, has never belonged to any particular religion or even to religion generally. "Marriage" in our society is a secular term. It may coincide with religious beliefs, but in the law it is not a religious concept, nor could it be. Religious organizations and individuals are authorized to officiate at weddings, but the legal concept of marriage is entirely secular. The phrase "by the power invested in me by the state" is revealing. It is the state that bestows legal recognition to the marriage, not the religion.

Those with religious objections to calling same-sex unions "marriages" are essentially insisting that the state must adopt their religious definition of a legal concept. That is fundamentally incompatible with the separation of church. It is not for religion to define legal concepts.

As I see the situation, there are two plausible solutions to this dilemma. First, those who think gays and lesbians should have "all the rights of married people" but want to deny them the word "marriage" must understand that the distinction is untenable. It is demeaning and insulting to gays and lesbians in the same way any system of "separate but equal" is offensive and hurtful, and it is ultimately grounded in religious beliefs that cannot properly be the basis of legal meaning.

Second, both gays and lesbians and those who object to applying the term "marriage" to same-sex relationships can agree to strike the term "marriage" from our laws. Instead, all legal marriage-like relationships would be described as "civil unions," whether same-sex or opposite-sex, and different religions would then be free to use the term "marriage" as they see fit, without government involvement or endorsement. Of course, even this would insulting to gays and lesbians (in the same way that closing the municipal swimming pool to avoid racial integration was insulting to blacks), but it might nonetheless be a compromise worth considering.