In the fundamental judgment Obergefell v. Hodges, the US Supreme Court held that the Fourteenth Amendment requires a state to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state. This judgment, however, was highly controversial. Four of the nine justices of the Supreme Court disagreed with the majority opinion, and in the dissenting opinions some basic problems were raised that bring to light some legal, political, and philosophical issues.
The conflict between the majority opinion and dissenting judges was crucially based on two definitional issues, the definition of “marriage” and “liberty.” However, such problems are not simply focused on the relationship between definiens and definiendum, namely on what shall be taken to be “marriage” or “liberty.” The controversy concerns meta-definitional issues, which involve philosophical and political considerations. We will analyze these problems using the approach and the theoretical background that has been set out in our recent book, Emotive Language in Argumentation.
The first controversial definition is the definition of “marriage.” The Court based its most important arguments on the fact that “the right to personal choice regarding marriage is inherent in the concept of individual autonomy.” This right is one of the fundamental rights and liberties protected by the Due Process Clause of the Fourteenth Amendment, which is breached by the states that deny it. However, as the judges of the dissenting opinion acknowledge, the meaning of the concept of marriage is now highly debated. There is the historical definition, allowing only the union of a man and a woman, and the more inclusive one allowing for same-sex unions. The latter redefinition of the term has become wore widely accepted. This controversy was not taken into account by the judges of the majority opinion, who instead grounded their arguments on an ideal “nature” of marriage: “The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality.”
This type of definition is rhetorically described as a selective definition. Some characteristics of the concept are selected, and advanced as the most important ones, as the only ones that should be taken into account. Such a definition provides selected features of the definiendum together with an emotional, or rather dynamic, effect, namely leading the listener to accept it. Such an emotive or dynamic effect is the result of the fact that the definition is presented as shared by everybody, or as to be shared by. It is framed as essential, setting out what a thing really is or should be. However, it can be hardly applied to the description of a concept that is highly controversial, at least at a legal level. As a matter of fact, this redefinition of the “nature” of marriage clearly conflicts with the historical definition which some judges of the Supreme Court and the legislative texts refer to. As a strategic and dialectical move, the majority opinion takes for granted that such a controversial extensive definition is shared, without fulfilling the burden of showing why.
This allegedly shared definition of marriage was contested by the dissenting judges, who pointed out that the precedent cases to which the majority opinion refers to are based on the historical definition, which was never attacked or rebutted. Such cases, according to the dissenting judges, concerned the limitations to a right established by marriage, not the definition of “marriage:” “Zablocki and Turner did not define marriage as ‘the union of a man and a woman, where neither party owes child support or is in prison.’ Nor did the interracial marriage ban at issue in Loving define marriage as ’the union of a man and a woman of the same race.’”
The point raised by the dissenting judges brings to light the crucial problem of who has the authority of defining. Many definitions can potentially result in legal or social effects. They are argumentative means to achieve a specific conclusion or decision, which can be the justification of a policy, the enforcement of laws or regulations, or the evaluation of a state of affairs. A definition can be used as an implicit premise for classifying a state of affairs when it is shared or non-controversial, or at least does not carry a burden of proof. A speaker can take a definition for granted and use it when the interlocutor can be at least presumed to accept it or to have to accept it (based on laws or popular opinion). However, when a definition is not set out by laws or is not commonly shared, taking it for granted can be a controversial move. This case brings to light the problem of presupposing a non-shared definition. The dissenting opinion starts a meta- discussion on the possibility of a dialogue, on who has the power of definition. According to Roberts and other judges, the majority opinion has imposed a definition that was not set forth in the constitution or shared by the people. In this sense, they exercised a power that judges should not have.
This shows how complex the dispute about the meaning of marriage actually is. The problem is not simply one of how marriage is conceived but is also an issue of what is under discussion. While the majority of the judges argue about the constitutionality of a kind of discrimination, the dissenting judges are concerned about whether it is possible to talk about discrimination, and who has the authority of classifying a union as a marriage. In this case, there is not even a common ground on which a reasonable conclusion can be reached, as the subject matter under discussion is not agreed upon.
The second crucial definition that is at the basis of the conflict between the judges is the concept of “liberty.” The majority opinion grounds some arguments on the fact that the Due Process Clause of the Fourteenth Amendment claims that no state shall “deprive any person of life, liberty, or property, without due process of law.” According to the Court, “these liberties extend to certain personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs.” Since marriage is matter of personal choice, and it is one of the most intimate that a person can make, the liberty of choosing whom to marry shall fall within the liberties central to individual autonomy protected by the Constitution.
This argument is based again on a controversial definition of marriage. The petitioners do not ask for the abolition of constraints to the liberty of union, but to the “liberty” of choosing whom to marry. The question raised by the dissenting judges is whether granting a new right (namely marriage entitlements to couples that allegedly do not fall within the legal definition of marriage) shall be considered as a liberty, and whether denying it is denying a fundamental liberty. The arguments brought forward by the dissenting judges (in particular Thomas) are the following ones:
“Even assuming that the ‘liberty’ in those Clauses encompasses something more than freedom from physical restraint, it would not include the types of rights claimed by the majority. In the American legal tradition, liberty has long been understood as individual freedom from governmental action, not as a right to a particular governmental entitlement. […] Instead, the States have refused to grant them governmental entitlements. Petitioners claim that as a matter of ’liberty,’ they are entitled to access privileges and benefits that exist solely because of the government.
“As a philosophical matter, liberty is only freedom from governmental action, not an entitlement to governmental benefits. And as a constitutional matter, it is likely even narrower than that, encompassing only freedom from physical restraint and imprisonment.”
According to the judge, the constitution protects individuals against the deprivation of fundamental liberties. Since the right to marry is rooted in the liberty of choosing who to marry, such a liberty shall be protected. However, a union between same-sex individuals has not been defined unanimously and legally as a marriage. For this reason, in this case the government is not depriving individuals of a right or a liberty, but rather it is granting them an entitlement that has not existed before. Clearly, the dissenting judge challenges the classification by challenging the definition of marriage as a union of two persons (also of the same sex). As a result of rejecting this definition, the argument of the court can be only reconstructed as resting on a redefinition of the concept of liberty. The dissenting judge is arguing roughly as follows:
1. Same-sex marriages are not marriages.
2. Same-sex marriages cannot involve the liberty of choosing who to marry (as they are not marriages).
3. The liberty of choosing who to marry for same-sex couples derives from a governmental entitlement, which grants a new right.
4. Therefore, the liberty of choosing who to marry for same-sex couples is not a liberty from a restraint, but an entitlement.
This counterargument, undermining the classification of the Court, questions one essential presupposition, that same-sex marriages are an instance of marriage. By rejecting this presupposition, the whole argument collapses, and can be reconstructed and saved only by assuming that the Court intended to define “liberty” as also including an entitlement to a new right.
This mirrors the earlier conflict about the definition of marriage. Justice Thomas takes for granted that marriage does not include same-sex marriage, and grounds his counterargument on this presupposition. Once again, the roots of the dispute consist in the definition of the crucial concept of marriage, and how to determine its definition. What is of crucial importance to understand is that the conflict about what marriage means becomes a conflict about who has the power to define it. Can popular opinion and practice in general to be considered as a ground of a definition, as the Court maintains? If so, who determines what is or should be commonly accepted? Or should the decision about whether a definition is politically and legally relevant rest on the people of each state? This deep disagreement about marriage is not simply an ethical and legal issue. It involves the political problem of who decides and how a concept shall be defined. It’s been said that words are a matter of power, but this legal case shows how the problem is much more complex. In order to solve this controversy it is necessary to decide (1) who can exercise this power, (2) how they should be allowed to exercise this power, and (3) how this power should be controlled.