Defining marriage in California: an analysis of public and technical argument.

• Author: Schiappa, Edward
• Position: Report

Whether the term and legal status of marriage should include same-sex couples is the most prominent civil rights question in the United States in the early 21st century. Like all significant definitional controversies, competing values, interests, and questions of power are at stake in how the institution of marriage and the legal right to marry are defined. In the state of California, two competing definitions emerged from two distinct argumentative spheres. On May 15, 2008, the Supreme Court of California ruled in In re Marriage Cases that marriage could not be limited to male/female couples, thereby redefining marriage to include same-sex couples. On November 4, 2008, the people of California voted to approve what is known as Proposition 8, which states: "Only marriage between a man and a woman is valid or recognized in California" (California Voter Guide, 2008).

Drawing on G. Thomas Goodnight's (1982, 1987) influential work on argument spheres, this essay compares and contrasts the arguments advanced in the technical sphere of legal and constitutional debate with those in the public sphere leading up to the November 4, 2008, vote with a particular emphasis on definitional arguments, that is, arguments over how marriage ought to be defined. Of particular interest is how the norms and practices of constitutional argument in the technical sphere filter out specific arguments-particularly fear appeals and claims based on religious beliefs and values-that are prevalent in the public sphere over Proposition 8. The essay concludes with a discussion of the dilemmas facing a society in which the public and technical spheres of argument produce dramatically different performances of rhetorical reasoning and how scholars of argument might respond. Specifically, I contend that the gap between technical and public sphere argumentation can be enormous, even concerning an explicitly political topic, highlighting the question of audience competence when it comes to the performance of reasonability on technical matters. To a surprising degree, the outcome of the public debate illustrates the concerns expressed by James Madison and Alexander Hamilton about the public sphere more than two centuries ago. From a theoretical standpoint, we can accept Goodnight's description of the three spheres of argument while refining the normative notion that the public sphere is preferable for all political argument. To that end, the dispute over same-sex marriage affords argumentation scholars an important pedagogical opportunity to try to enhance audience competence in the public sphere.

LEGAL ARGUMENT AS TECHNICAL SPHERE ARGUMENT

Goodnight's (1982, 1987) familiar typology of public, technical, and personal argument spheres provides a useful framework for thinking through just how different the arguments were in California that yielded contrary definitions of marriage. Goodnight (1982) defined "sphere" as "branches of activities-the grounds upon which arguments are built and the authorities to which arguers appeal" (p. 216). Argument in the personal sphere is relatively private, informal, ephemeral, and guided by the arguers' own sense of appropriate norms. Argument in the technical sphere, by contrast, is typically regulated by a particular community of arguers who determine who may speak or publish and requires "a considerable degree of expertise with the formal expectations" of argument (p. 219). In contrast to the personal sphere, technical argument is typically archived in some manner, the content constrained because "more limited rules of evidence, presentation, and judgment are stipulated in order to identify arguers of the field and facilitate the pursuit of their interests" (p. 220). Argument in the public sphere occurs when matters become of interest to a broader audience of citizenry. Public sphere argument is characterized, in part, by its accessibility to elected or self-selected representatives of particular positions. This combination of broader participation and audience results in "forms of reason" that are "more common than the specialized demands of a particular professional community" (p. 219).

There is no question that legal arguments concerned with constitutional matters that occur in appellate courts are technical. Who is authorized and allowed to argue, what sorts of claims, inferences, and evidence are considered appropriate, and how legal arguments are presented and archived, are all circumscribed by a specialized set of social practices.

In 2000, over 61% of California voters approved Proposition 22, described as the California Defense of Marriage Act (Bajko, 2008). California law already defined marriage as between a man and a woman (California Family Code, [section] 300). Proposition 22 closed what some argued to be a loophole that would require the state to recognize marriages performed out of state and, hence, added the phrase: "Only marriage between a man and a woman is valid or recognized in California." Subsequently, the California legislature approved legislation that recognized same-sex civil unions and granted them virtually all the same rights as male/female marriages.

The most significant legislation was the Domestic Partnership Act (DPA), which went into effect in 2005:

Registered domestic partners shall have the same rights, protections, and benefits, and shall be subject to the same responsibilities, obligations, and duties under law, whether they derive from statutes, administrative regulations, court rules, government policies, common law, or any other provisions or sources of law, as are granted to and imposed upon spouses. ([section] 297.5)

From the standpoint of state law, at least, the only difference between same-sex civil unions and male/female marriages was the name marriage. The California Supreme Court ruled 4-3 in In re Marriage Cases (2008) that denial of the name marriage to same-sex civil unions was unconstitutional.

Analysis of the legal arguments involved in this case was based on the following sources: the initial briefs filed by Plaintiffs and Defendants, the many amici curiae (or "friends of the court") briefs filed by interested individuals and organizations, the oral argument that took place before the California Supreme Court, the Court's majority ruling that rationalized the decision, and the Court's dissenting opinions that critiqued the decision (In re Marriage Cases, 2008).

Three rulings were central to the majority decision. First, because marriage is a fundamental substantive right, the legal difference between civil unions and marriage required strict scrutiny, which means that the law must be justified by a compelling state interest that can be met only by enforcing such a difference. Second, no such compelling state interest has been demonstrated. Third, using different labels for "similarly situated" couples violates California's Equal Protection Clause and therefore is unconstitutional. To treat same-sex couples equally under the law, the term marriage must be available to them as well as to male/female couples.

To understand the decision as a performance of reasonableness, the argumentative context must be understood. The U.S. Supreme Court's ruling in Romer v. Evans (1996) struck down Colorado's effort to deny equal protection to homosexual citizens. When the U.S. Supreme Court reversed Bowers v. Hardwick (1986) in Texas v. Lawrence (2003), laws criminalizing consensual homosexual conduct were ruled unconstitutional. The combined weight of these rulings meant that laws treating homosexual and heterosexual citizens differentially became presumptively suspect. California Chief Justice Ronald M. George noted that with the passage of the DPA, the California legislature made explicit statements of intent finding that homosexual Californians formed lasting committed relationships, and that expanding rights and duties would promote family relationships and reduce discrimination. Without the DPA, in response to the same constitutional challenge, the Court might have directed the plaintiffs to find a remedy in the Legislature.

The Chief Justice argued that denying same-sex couples the venerated label marriage would impose harm on same-sex couples and their children because it would "cast doubt on whether the official family relationship of same-sex couples enjoys dignity equal to that of opposite-sex couples" (In re Marriage Cases, 2008, p. 401). Historically, homosexual persons have faced discrimination; excluding them from the marriage label would seem like an official endorsement of such disparagement.

The Court listed several functions of civil marriage: facilitating stable family settings for child welfare, perpetuating social and political culture via the education of children, and relieving society of the burden to care for individuals who are or become incapacitated. In addition to societal benefits, the Court argued that the emotional and economic support provided by marriage might be crucial to personal development and achievement. Marriage facilitated entry into a partner's family providing a broader and often necessary "network of economic and emotional security" (In re Marriage Cases, 2008, p. 424). Expressing commitment via the establishment of a family was an important component of self-expression, giving life meaning. Sharing the happiness and frustrations of childrearing with a loved one was "without doubt a most valuable component of one's liberty" (p. 425).

Given the importance of marriage as a social institution, and the legal presumption that laws discriminating against homosexual citizens are suspect, the onus was on the State to provide a compelling reason to deny the label marriage to same-sex couples. Though the close 4-3 vote suggests reasonable people could disagree, the Court ruled that no such compelling state interest was demonstrated. Defendants and supporting amici briefs most often identified two interests: (a) society's...