The meaning of «marriage» at legal and judicial level
(Speech at Conference “Language and Law” Szczecin (Poland), December 11, 2009)
Within a legal system in the current multicultural social context, what is meant by marriage, is it the union between a man and a woman, between two men or between a woman with multiple men? Who can define it?
Some answers could be found in the recent debate in the United States of America, in particular in the State of California in relation to the prohibition of marriage between persons of the same sex, and, consequently, in relation to the meaning of the institution of marriage as traditionally understood in comparison with other types of unions.
In 1999, the State of California adopted the law on domestic partners, which, by amending the Family Code, has introduced a detailed regulation of unions between persons of the same sex.
Within this framework the legislator has been careful to distinguish between civil unions between persons of the same-sex and marriage as traditionally understood between a man and a woman. Indeed, the first of the five titles in the field of domestic partners maintains formally separate the two unions. This distinction has been emphasized by Proposition 22, voted on 7 March 2000, the referendum in which citizens of California have approved the amendment of the Family Code, which now, under section 308.5, explains that "Only marriage between a man and a woman is valid or recognized in California".
Domestic regulation of same-sex partners has introduced rules very similar to those foreseen for the traditional marriage between a man and a woman. As a matter of facts, art.297 paragraph 5 letter. a) of the Family Code affirms that such unions "shall enjoy the same rights, protections and benefits and are subject to the same duties under the Ordinance... what are required for spouses”.
However, despite the similar legal framework, for the Californian legislator the "nominal" difference remained because the name "marriage" could be attributed only to heterosexual couples through a formal union between a man and a woman.
This distinction has been rated by many as a real discrimination, and in 2008 several appeals were submitted for review by the Supreme Court of the State of California and "In re Marriage Cases" the Court expressed its vote in favor of the unconstitutionality of the difference of unions , although only nominal, between homosexuals and heterosexuals.
This decision of the Supreme Court seems to best describe the importance of the relationship between law and language, which is the meaning that words have within the legal reality.
As a matter of fact, in the case decided, the problem was not so much the difference in discipline between the unions of same-gender people and between people of opposite sex, but the fact that unions between persons of the same sex could not be recorded - and then defined - as marriage.
In particular, the Court has justified the use of the term "marriage" for homosexual unions, mainly on the principle of non-discrimination on the basis of sexual orientation.
However, as a consequence of that decision, signatures were collected in order to submit a new Proposition (no. 8) that would introduce a ban on persons of the same-sex marriage in the Constitution, by introducing a constitutional amendment that would define "Only marriage between a man and a woman is valid or recognized in California”.
On 4 November 2008, together with the election for the President of the United States of America, voters have agreed on Proposition no.8 (with a majority of 52.3 per cent). Following this voting, therefore, section 7.5 of Article 1 of the Californian Constitution defines marriage exclusively as the union between a woman and a man.
After this amendment, on 26 May 2009, the Supreme Court is back again on the subject. In particular, the Court was asked whether Proposition no.8 had been a change permissible by the Californian Constitution, since - according to the applicants - it breached "inalienable" rights protected by the Constitution.
The response of the Court, however, left no room for ambiguity and affirmed the sovereignty of people , by recognizing the right of people to intervene to change the Constitution.
After all, the constitutional rule added by P roposition no.8 must be correctly interpreted as a limited exception to the consistency of terminology as to constitutional rights. The same-sex couples in fact kept all the principal key components with one exception (albeit significant) with regard to the right to equal access to the status of "marriage", a term that - as agreed following the referendum - must be reserved to an official union between a man and a woman.
According to the trend of the Family Code until the decision of the Supreme Court, it is interesting to stress that, in a short period in the State of California, the meaning of marriage has changed three times: first it was considered as the union between a man and a woman, then, following the pronouncement of the Supreme Court, it was considered as the union of both a man and a woman and persons of the same sex, and, after the referendum which introduced the Constitution, it has changed back to be understood as only a union between a man and a woman.
These "swings" in such a short time will not be certainly attributable to social development, but rather to a real "conflict" between judges and the legislator in taking some controversial solutions, or, as it may be seen, in setting the meaning of the words that define legal institutions.
* Dottore di ricerca e Cultore di Diritto Costituzionale presso la Facolta di Giurisprudenza dell'Universita di Catania