Title

What’s in a Word? Can “Marriage” Mean Something It Never Meant Before?

Abstract

In the article I explore the clash of the two disciplines—lexicography and law—when courts and legislatures invoke lexicography to address and solve legal issues that are driven by societal concerns. I address, specifically, the marriage debate. I describe the process of dictionary making and some of the basic tenets of lexicography, and the historical role of lexicography in law. I point out what I perceive as misunderstandings, in judicial opinions and scholarly articles, on the subject of lexicography. I discuss how words gain new meanings (and how they do not) and how, when, and by whom their definitions are changed. Next, I argue that any attempt to establish a meaning of marriage in a legal context when societal goals are invoked (such as “protecting marriage”) should dispense altogether with the dictionary as support. I point to the inherent conflicts in the current discussion on “defining (or redefining) marriage”—the meaning of the word versus the meaning of the institution; legal definitions versus lay definitions—and address the question of how and by whom “marriage” can be defined/redefined. Toward this end, I look at statutes (and some legislative histories) and court decisions, with a short trek into the land of policy and tradition via Bowers, Loving, Baehr and DOMA, and I critique the handling of defining marriage in law review articles. I identify valid, helpful, and useful approaches and measures taken by courts and legislatures. In sum, while I do not embark on any sort of analysis of the constitutionality or lack thereof of the legislation and rulings, I believe I do provide food for thought on what I perceive as circular, illogical, or misplaced use of the dictionary.

Disciplines

Law | Law and Society

Date of this Version

July 2005