Tuesday, February 10, 2015
I wish to thank our friend and colleague Kevin Walsh for his posting yesterday on the marriage turmoil that is now engulfing the State of Alabama. Much has been said about the legal controversies surrounding the claims for same-sex marriage, and I am confident more will be said. Today I wish simply to focus on the words—the expression—of the counsel to whom Kevin referred. The particular phrase involves the lawyer’s statement about “a federal court declaring what same-sex couples’ rights are under the federal Constitution.”
Words and their meaning are crucial to the noble craft of the lawyer—this category “lawyer” includes judges and many legislators and administrators. However, words can be poorly used; they can be incorrectly used; and, they can also be given a highly subjective meaning that obscures and frustrates the underlying intent and purpose for which they exist as a means of general communication. An illustration of the latter case is Lewis Carroll’s character Humpty Dumpty who audaciously and scornfully posits, “When I use a word, it means just what I choose it to mean—neither more nor less.” From the effort of striving to achieve the most accurate meaning from words and phrases—especially those having a legal import—the counsel of Mr. Dumpty leads us on a perilous course. Not only must it not be recommended, it must be avoided at all cost.
When one returns to the words of the lawyer from the Alabama marriage litigation cited by Kevin, we see the counsel’s emphasis on the words of the United States Constitution and the implied meaning of these words. So, what words does the Constitution contain regarding same-sex marriage or, for that matter, any marriage? It uses none because the text of our fundamental law is silent on the subject of matrimony just as it is mute on the matter of abortion. This does not mean that a topic not specifically mentioned in the Constitution is not addressed by our fundamental law. Subjects not specifically mentioned can still be addressed through a careful and objective interpretation that scrutinizes the words used in the text to tweak out their meaning that is consistent with the document with which they are associated. However, as a good interpreter will concede, words do have a certain elastic quality; however, this elasticity is not without limit. Like a rubber band, the meaning of words can be interpreted—stretched—only so far, and then they break, i.e., their meaning is lost or becomes highly subjective and therefore meaningless as Lewis Carroll’s example would suggest.
In the context of the Alabama marriage litigation, I hold and argue the view that the words of the Constitution cannot be stretched to the point that the Alabama counsel suggests they can.
In the current political and legal climate dealing with claims for same-sex marriage, it is generally argued that constitutions, those of the States and that of the United States, support the claims based on claims made from equal protection under the law (equality) and, then, due process.
I have previously addressed the equality arguments here at the Mirror of Justice and elsewhere. But to reiterate briefly what I have said in the past, the meanings of the phrase “equal protection” and the word “equality”, like other words and phrases, cannot simply mean what the advocate—or Humpty Dumpty—intend them to mean. While every human person is equal to all others in some regards, they are not equal in all regards. We see and accept all kinds of inequality in various realms such as salary compensation or recognition of sporting, artistic, and literary accomplishments. The fact that such inequality exists does not vanquish the meaning of equality and equal protection insofar as the United States Constitution addresses and protects equality and equal protection.
So, when it comes to the rights that any of us have under the United States Constitution, we need to bear in mind the boundaries which words have in a legal context. When we fail to do this, the words of important, foundational legal texts are deprived of their intended and purposeful significance and of their general application. The result, then, is not the desirable ordered liberty of our Federal Republic but chaos.