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The Constitution is no place for marriage

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The NewsCenter publishes the perspectives of UC Berkeley faculty on topics of general interest. The points of view expressed are those of the author. We welcome previously published or unpublished articles for consideration. Please send submissions or ideas to newscenter@berkeley.edu.

Robin Lakoff has been a professor of linguistics at UC Berkeley for more than 30 years. Her most recent book is The Language War (UC Press, 2000), which analyzed the role language plays in popular and political culture. The following essay was first published July 10 in the San Francisco Chronicle.

The recent attempt by congressional Republicans to pass the Marriage Protection Amendment to the U.S. Constitution raises several questions about the nature of the Constitution and the propriety of proposed amendments to it. What kind of document is a constitution? When does a proposed amendment merely amend it — i.e., change it while leaving it unambiguously a constitution rather than something else — and when does its passage entail deeper, more problematic changes? Although the defeat of this proposal has rendered the discussion less urgent, it is virtually certain that similar proposals will be made in the future, so it would be prudent to try to explore this question now.

 Robin Lakoff
Robin Lakoff (Peg Skorpinski photo)
 

A constitution, like any other document, is a form of discourse, a set of sentences bound together by a common purpose and theme, designed to accomplish an agreed-upon task. In that respect, it is not too different from a poem, a novel or a joke. All have rules that speakers are more or less aware of: We know when a set of sentences constitutes an appropriate (and funny) "joke," and when a very different set constitutes a "poem" or a "list." As speakers, we may not be able to state explicitly the kinds of sentences that make up any of these types, but like obscenity, we know it when we see it, and we know when they are violated.

A constitution is likewise a type of discourse designed for a specific task — in this case, to bring into being a political organization. Thus the Preamble to the Constitution of the United States announces at the outset that it has been created "in Order to form a more perfect Union." Every sentence in such a document addresses this task: the setting up of a relationship between government and governed: the rights and obligations of each, the procedures to be followed by each in order to form and continue this "Union." So any language not useful for engaging in this task plays no role in any part of a "constituting" document of this kind.

If there were interpolated into the U.S. Constitution a poem or a shopping list, it would cause consternation. The resulting mutant would no longer be an unambiguous constitution. Even though each part made sense by itself, the totality would become unintelligible. Fortunately, it doesn't occur to anyone to mess around with the Constitution in this way.

'National constitutions are not appropriate places for establishing who, in a relationship, does the dishes. Nor are they any more appropriate for determining who can marry whom.'

Constitutions establish relationships between a government and its citizens, not private relationships between or among citizens themselves. National constitutions are not appropriate places for establishing who, in a relationship, does the dishes. Nor are they any more appropriate for determining who can marry whom. An amendment such as the Marriage Protection Amendment, however, is doing the same thing in a subtler way. The problem with inserting a definition of "marriage" into the Constitution is that it has no place there and, as an inappropriate utterance, would render the whole document confused and confusing.

'If a society feels a need for statements regulating behavior between citizens, the place for them is in statutory law.'

A constitution is properly and exclusively concerned with determining the relationships — duties, rights and obligations — that are to exist between governments and those they govern. Marriage is a relationship in which the government is not a direct participant. Definitions of marriage have no more place in a constitution than do poems or shopping lists. Only once in the history of our Constitution has an amendment been added that concerned citizens' private lives alone. That was the 18th Amendment, prohibition, and we know what a good idea that was. We should try hard to avoid embarrassing ourselves again.

If a society feels a need for statements regulating behavior between citizens, the place for them is in statutory law. Statutes tell citizens how fast they may drive, what kinds of drugs they may ingest and what kind of person may practice as a physician — all of which have to do with defining permissible behaviors and relationships among persons, rather than between persons and governments. While there are no laws specifying what kinds of statements can be included in a constitution, common sense should warn us to be very wary of making changes that would alter the intrinsic meaning of our most important foundational statement.