Constitutional law scholar Michael Dorf recently gave a lecture at Drake University on "Same-Sex Marriage, Labels, and Social Meaning." In this blog entry, he links to an audio file of the lecture, and describes his aim. Where state courts have overturned "all-but-marriage" laws, their decisions interpret the right to marriage as a "a right not to be relegated to the status of second-class citizens." The difference between "marriage" and "civil union" conveys a social meaning - the stigma of second-class citizenship. Setting aside the "concrete consequences" of all-but-marriage laws, Dorf thinks that the allegedly contested idea of social meaning deserves further study. "The hardest problem here is that social meaning often differs with different audiences." Law professor Courtney Megan Cahill has also addressed the issue of social meaning, from a different perspective: (Still) not fit to be named: moving beyond race to explain why 'separate' nomenclature for gay and straight relationships will never be 'equal,' 97 Geo. L.J. 1155 (2009).
I haven't yet listened to Dorf's lecture. His post raises three questions that his lecture may answer: (1) Is there a problem for social meaning of the kind he describes, divorced from "concrete consequences"? (2) If there is, why does it matter, given the nature and extent of serious, irremedial harms to same-sex couples in "parallel" civil unions or domestic partnerships, and to their children? (3) Can we understand any problem for social meaning in Dorf's context without considering evidence on the nature and extent of harm from inequality?
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