Dictionaries recognize same-sex marriage.

The law, lawyers, and the court.
April 7 2009 4:26 PM

Noah Webster Gives His Blessing

Dictionaries recognize same-sex marriage—who knew?

Illustration by Robert Neubecker. Click image to expand.

Opponents of gay marriage generally have relied on two authorities, the Bible and the dictionary—the divine word and the defined word. A 2006 friend-of-the-court brief filed on behalf of anti-gay-marriage organizations in a Maryland marriage case cited no fewer than seven dictionaries to make its point. And when the Iowa Supreme Court legalized gay marriage last week, it ignored the state's plea to abide by a dictionary definition that limited marriage to "the legal union of a man and a woman."

But in their latest editions, the dictionaries have begun to switch sides—though until recently, no one seemed to have much noticed. The American Heritage Dictionary, Black's Law Dictionary, the Oxford English Dictionary, and Webster's have all added same-sex unions to their definitions of marriage. * The right-wing Web site WorldNetDaily broke the news in March about Webster's, reporting that the dictionary had "resolved the argument" over gay marriage by applying the ancient term "to same-sex duos."

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How, exactly, has the wording in the dictionaries changed? American Heritage went first, adding this to its definition of marriage in 2000: "A union between two persons having the customary but usually not the legal force of marriage: a same-sex marriage." In 2003, Webster's included in its definition "the state of being united to a person of the same sex in a relationship like that of a traditional marriage." In 2004, in its eighth edition, Black's added "same-sex marriage" to its marriage entry, recognizing that "same-sex couples have successfully challenged the laws against same-sex marriage" in a number of states. Even more interesting, 2008's Webster's Contemporary School and Office Dictionary says nothing gendered about marriage at all. The entry simply states that marriage is "the state of being united to another person as a contractual relationship according to law or custom." And the king of them all, the Oxford English Dictionary, since 2000 has included in the definition of marriage the phrase "long-term relationships between partners of the same sex."*

In response to a complaint from a WorldNetDaily reader, Webster's brushed off criticism that it was choosing sides with the expanded definition. According to the editor, it was "a simple matter of providing our readers with accurate information about all of the word's current uses." But dictionaries occupy prime social real estate, with significant authority over adjudicating the meaning of words. Courts use them as evidence of societal attitudes and to interpret statutes. Even if dictionary editors aren't trying to put a thumb on the scale, their judgment may soon matter. Dictionaries didn't come up in Tuesday's vote to approve same-sex marriage by the Vermont state Legislature, but a recent case filed to challenge the denial of federal recognition to state same-sex marriages could make use of the new definitions.

H.L. Mencken wrote that Noah Webster, paragon of American lexicography, was "not only a pedagogue, but a Calvinist and a foe of democracy." Whether because of his stern outlook or no, ever since he issued his first dictionary in 1806, Americans have held the volumes in awe as impartial arbiters. Historically, the dictionary, like society at large, had a staunchly heterosexual view of marriage. Webster's 1828 dictionary defined marriage as "instituted by God himself for the purpose of preventing the promiscuous intercourse of the sexes, for promoting domestic felicity, and for securing the maintenance and education of children." The 1913 edition continued to cite the New Testament's statement, "Marriage is honorable in all." For context, it also defined sodomy as "carnal copulation in a manner against nature, buggery," recommended the Genesis story of Sodom for further reading, and concluded with the aside "can we be more explicit?"

Gay-marriage opponents have capitalized on all of this for decades. In the first same-sex marriage case in the United States, Minnesota's Baker v. Nelson, which dates from 1971, the court dismissed the plaintiffs with a wave of Webster's Third New International and Black's Fourth Edition (as well as the Book of Genesis for good measure). Later that year, in a New York same-sex marriage suit, a trial court cited Black's for the proposition that "[m]arriage is and always has been a contract between a man and a woman." A Kentucky court in Jones v. Hallahan in 1973 held that marriage should go by the "common usage," pointing to Webster's, Black's, and "the Century Dictionary and Encyclopedia."

This doesn't mean that gay-marriage advocates will win now that the dictionary definitions have become more expansive. For judges who adhere to the theory of originalism, interpreting laws and statutes based on what the words in them meant at the time they were written, the latest dictionary editions don't matter for judging the validity of statutes that were drafted in the past. Think Justice Antonin Scalia, who generally likes to stick with the early 20th-century Webster's Second New International. For jurists like him, the "common usage" of a word, from the time the law at issue was written, will prevail over newer understandings.

In a decision refusing to allow a Massachusetts-married same-sex couple to divorce in Rhode Island, for example, that state's high court cited four dictionaries older than or from the time of the 1961 divorce statute. The court found that "the primary dictionary definition normally expresses the 'ordinary meaning' of the word being defined." The state of Iowa cited a 1999 dictionary in support of the statute that restricted marriage to a man and a woman. (Until, that is, the court struck the law down.)

But for those judges who are open to the notion that statutory and constitutional meaning can change over time, the dictionary acceptance of same-sex marriage will offer evidence of a shift in public views. Instead of fending off or ignoring the dictionary, gay advocates will be able to cite the new editions in their briefs. The new entries in Webster's, Black's, and soon the OED signal that the idea of same-sex marriage has come of age. The Supreme Court cited an "emerging awareness" that gay people shouldn't be treated like criminals in striking down remaining state sodomy laws in 2003. Now the dictionaries herald the same kind of "emerging awareness" about gay marriage. When you make it into the dictionary, you're no longer novel. You're on your way to becoming ho-hum. Noah Webster presumably would have scratched his Calvinist brow, but his dictionary could very well help same-sex marriage someday become the law of the land.

Correction, April 8, 2009: The original sentence wrongly stated that the OED's definition of marriage including same-sex marriage is in draft form. The OED's definition of marriage has recognized same-sex marriage since 2000. The fact that the OED's entry is headed with the note "Draft revision Mar. 2009" does not mean that's when the entry first appeared in this form. It means that revisions to the entrythough not related to the same-sex marriage pointwere published at that time. (Return to the corrected sentences.)

Daniel Redman is an attorney in San Francisco.

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