Lecture on Same-Sex Marriage and Second-Class Citizenship

By Mike Dorf

On Thursday of last week, I gave a lecture in the "Distinguished Lecture Series" at Drake University on the topic of "Same-Sex Marriage, Labels, and Social Meaning." Readers interested in figuring out whether I managed to distinguish myself for anything other than the dark circles under my eyes, frequent blinking, and long-windedness should feel free to check out the recording (windows media here, mp3 audio here, mp4 video here).

The early draft of the paper on which the lecture is based--like the lecture itself--is an effort to make sense of what's at stake in cases challenging state laws that offer all of the legal benefits of marriage but not the term "marriage" itself to same-sex couples interested in entering civil unions. The answer, which I think is rather obvious and which is prominent in the state court decisions that have recognized a same-sex marriage right is a right not to be relegated to the status of second-class citizens, a right that is thus traceable to the statement in the first Justice Harlan's Plessy dissent: "in view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here." That language, with which Justice Kennedy tellingly opens his opinion for the Supreme Court in Romer v. Evans, is both clearly apt and potentially problematic in the same-sex marriage context, for it raises the question of how one determines when the government has, through language alone, treated people as second-class citizens. In Plessy and Romer, after all, the law offered tangible benefits to white and straight people that it did not offer, respectively, to non-white and non-straight people.

One way of attacking marriage-in-all-but-name is to note that denial of the use of the word marriage is actually the denial of a legal benefit. As one Drake faculty member explained to me after the talk, one effect of the law is to out people who may want to remain closeted, at least in some contexts: A person in a same-sex civil union when asked whether he or she is "married," must say something like "sort of; I'm in a civil union." While I agree that this is a concrete consequence of the law (at least for people who don't ever want to give a dishonest or misleading answer to a question in a social setting), and that there are other similar effects of the denial of the term marriage, I nonetheless think it's worth thinking through the question of social meaning even on the assumption that the law has no ramifications of this sort.

The hardest problem here is that social meaning often differs with different audiences. Proponents of same-sex marriage (myself included) see second-class citizenship in its denial, whereas opponents claim that they only mean to defend traditional marriage. I find the latter claim almost impossible to parse, because the only way in which same-sex marriage poses a threat to traditional marriage would have to be through some sort of contagion effect: Association of straight marriage with same-sex marriage would somehow degrade the former, which can only be true if the same-sex couples are somehow inferior. Nonetheless, at least when speaking publicly, opponents of same-sex marriage will insist that they mean no insult, and presumably some of them even mean that at a conscious level. (I put aside otherwise-liberal politicians, including the President, who claim to oppose same-sex marriage because, I presume, they have made a political calculation that favoring it would be too costly. They don't mean to treat same-sex couples as second-class citizens, but only because their opposition to same-sex marriage is presumably insincere.)

Returning to the main question--how does one define social meaning?--I find that the most interesting parallel case involves official government displays of the Confederate flag. Between 1956 and 2001, the Georgia flag looked like this:

In 2003, a Confederacy-free flag was substituted in Georgia but the Mississippi flag retains the Stars and Bars, while the Alabama flag invokes it.  While the Georgia flag still looked as pictured above, it was challenged as a denial of equal protection, but the case was dismissed on summary judgment, and that dismissal was affirmed on appeal by the 11th Circuit.  However, the basis for the court's ruling was not that the flag did not insult African Americans but that there was no proof of further, tangible harm.  Similar analysis underlay the 11th Circuit's earlier decision in a case challenging the flying of the Confederate flag (along with the U.S. flag and the state flag) over the Alabama State Capitol.  A 1991 Student Note in the Yale Law Journal by James Forman (now a Georgetown Law professor) argued that the 11th Circuit was wrong, but there the matter rests.

So, how should courts determine the social meaning of government speech or symbolic action that connotes second-class citizenship (or worse) to some while connoting innocuous ideas (like "pride in our state") to others?  In the lecture I give a few possible answers, with more details eventually to follow in the paper.