Discourse, Identity, and Social Change in The Marriage Equality Debates

Discourse, Identity, and Social Change
inthe Marriage Equality Debates

OXFORD STUDIES IN LANGUAGE ANDLAW
Oxford Studies in Language and Law includes scholarly analyses and descriptions of lan-
guage evidence in civil and criminal law cases as well as language issues arising in the area
of statutes, statutory interpretation, courtroom discourse, jury instructions, and histori-
cal changes in legal language.
Series Editor:
Roger W.Shuy, Georgetown University
EditorialBoard:
Janet Ainsworth, Seattle University SchoolofLaw
Janet Cotterill, Cardiff University,UK
Christopher Heffer, Cardiff University,UK
Robert Leonard, Hofstra University
Anne Lise Kjr, University of Copenhagen
Gregory Matoesian, University of Illinois at Chicago
Elizabeth Mertz, University of Wisconsin Law School and American Bar Foundation
Lawrence Solan, Brooklyn LawSchool
The Legal Language of Scottish Burghs: Speaking of Language and Law:

Standardization and Lexical Bundles Conversations on the Work of Peter Tiersma
(13801560) Edited by Lawrence M.Solan,
Joanna Kopaczyk Janet Ainsworth, and Roger W.Shuy
Im Sorry for What Ive Done:The Confronting the Death Penalty:How

Language of Courtroom Apologies Language Influences Jurors in CapitalCases
M. CatherineGruber RobinConley
Dueling Discourses:The Construction of Discursive Constructions of Consent

Reality in Closing Arguments in the Legal Process
Laura Felton Rosulek Edited by Susan Ehrlich, Diana Eades
and Janet Ainsworth
Entextualizing Domestic Violence:Language
Ideology and Violence Against Women in the From Truth to Technique at Trial:ADiscursive
Anglo-American Hearsay Principle History of Advocacy AdviceTexts
JenniferAndrus PhilipGaines
Speak English or What?:Codeswitching Discourse, Identity, and Social Change

and Interpreter Use in NewYork City Small in the Marriage Equality Debates
ClaimsCourt KarenTracy
Philipp Sebastian Angermeyer
Law at Work:Studies in Legal Ethnomethods

Edited by Baudouin Dupret, Michael
Lynch, and TimBerard
Discourse, Identity, and Social
Change inthe Marriage
Equality Debates
KarenTracy
1
1
Oxford University Press is a department of the University of Oxford. It furthers
the Universitys objective of excellence in research, scholarship, and education
by publishing worldwide. Oxford is a registered trade mark of Oxford University
Press in the UK and certain other countries.
Published in the United States of America by Oxford UniversityPress

198 Madison Avenue, NewYork, NY 10016, United States of America.
Oxford University Press2016
All rights reserved. No part of this publication may be reproduced, storedin

a retrieval system, or transmitted, in any form or by any means, withoutthe
prior permission in writing of Oxford University Press, or as expressly permitted
by law, by license, or under terms agreed with the appropriate reproduction
rights organization. Inquiries concerning reproduction outside the scopeofthe
above should be sent to the Rights Department, Oxford University Press,atthe
addressabove.
You must not circulate this work in any otherform

and you must impose this same condition on any acquirer.
Library of Congress Cataloging-in-Publication Data

Tracy, Karen, author.
Discourse, identity, and social change in the marriage equality debates / Karen Tracy.
pages cm. (Oxford studies in language and law)
Includes bibliographical references and index.
ISBN 9780190217969 (hardcover : alk. paper) ISBN 9780190217976 (ebook)
ISBN 9780190217983 (online content) 1. PleadingUnited States. 2. Discourse
analysis. 3. Marriage lawUnited States. 4. LawInterpretation and
construction. 5. Judicial powerUnited States. I. Title.
KF8870.T73 2016
346.73016dc 3
2015036299
987654321
Printed by Sheridan, USA
CONTENTS
List of Figures and Tables vii

Acknowledgments ix
Introduction 1
PART ONE Discourse in State SupremeCourts

1. The Genre of Oral Argument 19
2. Naming of Litigants 43
3. Ideology in Judges Questions 60
4. Identity-Work in Judicial Opinions 72
PART TWO Discourse in Judicial Committee Hearings

5. The Legislative Hearing Genre 89
6. Religion, Citizenship, and Identity in US Law-Making 107
7. Storytelling and Social Change 125
PART THREE Comparisons and Conclusions

8. Morality Arguments in the DOMA Debates 141
9. Discourse, Law, and Social Change 157
Notes 175
References 193
Index 211
v
LIST OF FIGURES ANDTABLES
Figures
5.1 Controversy Formulation by State 98
5.2 Hearing Design by State 99
5.3 The Genres Dominant Purpose by State 103
Tables
I.1 Overview of Data 13
1.1 State Supreme Court Marriage Law Appeals 21
2.1 Decision Profiles of the Three Earliest Cases 47
2.2 Frequency of Person-Referencing Terms by 1000 Words 49
2.3 Percentage of Person-Referencing Terms by Category and Role 50
2.4 Percentage of Sexual-Orientation Terms Relative to Total Terms 50
2.5 Forms of Sexual-Orientation Terms 51
2.6 Unique Terms by Kind 51
2.7 Use of Sexual-Orientation Terms by Role and Court 52
2.8 LexisNexis US Newspaper and Wire Services Usage of Gay
and Homosexual 55
2.9 Sexual-Orientation Person Terms in Lawrence v.Texas57
3.1 Tough Questioning Features and the Pattern 68
4.1 Overview of Washington Court Opinions 75
5.1 Overview of the Hearings 94
5.2 Distribution and Length of Rhode Island Speakers
by Position during Meeting Thirds 100
6.1 Frequency of Religious Lexical Choices by Position
in the Hawaii Hearing (per 1000 Words) 114
7.1 New Jersey and Colorado Storytelling Profiles 127
8.1 Witnesses at the 1996 House DOMA Hearing 143
8.2 Witnesses at the 2011 Senate Hearing about
Overturning DOMA 144
8.3 Discourse Practices in the 1996 Hearing That Accomplished
Moral Work 148
vii
ACKNOWLEDGMENTS
Id like to thank the participants in CUs Rhetoric Workshop and my depart-

ments Discourse and Society Research and Data Sessions. Folks in these two
groups were long-term conversational partners as I developed this book. In
particular, I would thank David Boromisza-Habashi, Frank Beer, Bob Craig,
Erica Delgadillo, Larry Frey, Bruce Gronbeck, Jess Hughes, Andrew Long,
Rolf Norgaard, Rex Parks, Katie Peters, Lydia Reinig, Jessica Robles, Pete
Simonson, Leah Sprain, Cindy White, and Bingjuan Xiong. My thanks also
goes to the Center to Advance Research and Teaching in the Social Sciences at
the University of Colorado; the center awarded me several grants that facilitated
transcription of the oral argument and judicial committee hearings, as well as
made possible my travel to interviews judges. In addition, Janet Ainsworth,
Greg Matoesian, and several anonymous reviewers provided helpful feedback
at different stages of the books development.
Finally, Bob Craig helped me in ways that only a close colleague could and
only a committed partner would. His willingness to listen to audiotapes during
our walks, his great questions, the references he so frequently found and passed
on, and his commenting on multiple drafts were invaluable in working out my
claims in thisbook.
Permissions
Segments within six of the 10 chapters build on previously published work.

Chapter1 draws on a 2011 article [Tracy, Karen 2011a. A Facework System of
Minimal Politeness:Oral Argument in Appellate Court Journal of Politeness
Research:Language, Behaviour, Culture 7 (1):123145], as well as a 2011 chapter
[Tracy, Karen 2011b. Identity-Work in Appellate Oral Argument:Ideological
Identities within a Professional One. In Constructing Identities at Work, edited
by J.Angouri and M.Marra, 179203. Brunel, UK:Palgrave. Reproduced with
permission of Palgrave Macmillan]. Chapter 2 extends a 2011 article [Tracy,
Karen 2011c. Whats in a Name? Stance Markers in Oral Argument about
Marriage Laws. Discourse & Communication 5 (1):6588]; Chapter3 the article
[Tracy, Karen, and Russell M.Parks. 2012. Tough Questioning as Enactment
of Ideology in Judicial Conduct:Marriage Law Appeals in Seven US Courts.
International Journal of Speech Language and the Law 19 (1):125]; and Chapter4
[Tracy, Karen. 2012a. Dogmatic Dialogue: Essential Qualities of Judicial ix
x Acknowledgments
Opinion-Writing. In (Re)Presentations and Dialogue, edited by F.Cooren and

A.Letourneau, 3758. Amsterdam:John Benjamins]. Chapter5 extends a 2012
article [Tracy, Karen. 2012b. Public Hearings about Same-Sex Marriage:How
the Context Makes An Argument. Qualitative Communication Research 1,
(1):83107. Permission given by the Regents of the University of California];
whereas Chapter6 draws upon a 2014 article [Tracy, Karen, and Jessica M.F.
Hughes. 2014. Democracy- Appealing Partisanship: A Situated Ideal of
Citizenship. Journal of Applied Communication Research 42, (3): 307324.
Copyright permission given by National Communication Association], and a
chapter [Tracy, Karen. 2014. Rhetorical Citizenship in Public Meetings:The
Character of Religious Expression in American Discourse. In Rhetorical
Citizenship:Purposes, Practices, and Perspectives, edited by Christian E.J. Kock
and Lisa Villadsen, 149165. Leiden, Netherlands:Leiden University Press].
Discourse, Identity, and Social Change
inthe Marriage Equality Debates
Introduction
Identity is something that is used in talk:something that is part and parcel

of the routines of everyday life, brought off in the fine detail of everyday
interaction. (Antaki and Widdicombe 1998, 1, italics in original)
Identity gives us a way to link the phenomenological domain of lived, moment-
by-moment experience and the semiotic domain of enduring cultural systems
of belief, values and meaning-making practices. (Lemke 2008,21)
For the last several decades, discourse scholars have given serious attention to
understanding how talk and peoples identities connect. Our fascination with
this issue arises from the ephemeral, fragile quality of talk, combined with
the widespread tendency among ordinary folk, as well as academics in other
traditions, to treat talk as trivial, the underside of some other thing that is
important. Talk is just words, to echo the title of Conley and OBarrs (1990)
analysis of how language, power, and the law interpenetrate, but these ephem-
eral words, to quote Austin (1962/2006), do things.
Identity refers to who people are; it is a spacious concept that includes
contrary truths. On the one hand, identities pre-exist in a web of institutional
realities that constrain moments of interaction. On the other, identities are built
through communicative action, change over time, and in the process change the
institutions of which they are a part.1 Although frequently referred to in the
singular, identity is best conceived as necessarily plural, a bundle of features
that are complexly related to each other. Ways to define and categorize identi-
ties are as varied as the scholars who write about them. For some, identities are
tightly connected to notions of face, albeit including more facets of person-
hood; other scholars distinguish identities by the contexts in which they are
displayed.2 Idistinguish three main categories of identity:(1)master identities,
which refer to relatively stable facets of personhood, such as age, race, gender,
sexual orientation; (2)interactional identities, which point to the situated roles
and activities of communicators; and (3) personal identities, which include a 1
2 Discourse, Identity, and Social Change in the Marriage Equality Debates
persons attitudinal stances, perceived character, and what we often refer to

as personality.3 In this book Iattend to all three kinds of identities but give
particular attention to personal identities related to a participants morality
and reasonableness.
Identity-work, a concept rooted in Goffmans (1967, 1974) notion of
facework and shaped by Ochs (1993) language socialization perspective, puts
the emphasis on how talk does the constructing, maintaining, and challenging
of identities.4 Identity-work operates in two directions. Apersons talk presents
the kind of person a speaker is, or, to state it more accurately, is claiming to
be. At the same time, talk altercasts the conversational partner, that is, it casts
the other into a role.5 One persons talk implies a view of the other, including
assessments of the character, moral, and attitudinal qualities of the spoken-
to party, as well as the speakers understood relationship to the party being
addressed.6
In this book Iexamine the identity-work of judges and attorneys in state
supreme courts as they debated the legality of existing marriage laws. I jux-
tapose what went on in these appellate courts with the talk that occurred
between citizens and elected officials in legislative judicial committees con-
sidering whether to revise state marriage laws. In both sites, the reasonable-
ness and competence of the institutional actorsjudges, attorneys, legislators,
citizen testifierswere at stake. In addition, because the dispute over same-sex
marriage is a dispute about a category of person and whether that category is
entitled to a valued right, a third kind of identity-work was occurring:court
and legislative talk was crafting views of the identities of gay persons to whom
the right of marriage was to be extended or withheld. In essence, the court and
legislative talk constructed (1)the identities of speakers, (2)the identities of the
spoken-to parties, and (3)the identities of the spoken-about parties. Moreover,
because identities are highly interconnected, how a person talks to and about
others is a significant part of who that personis.
My analysis of law-interpreting and law-making discourse spans 10years,
beginning with the US Supreme Courts overturning of sodomy laws in 2003
and ending in 2013 when the US Supreme Court declared the federal govern-
ments Defense of Marriage Act (DOMA) unconstitutional. The focal materi-
als include the eight cases about same-sex marriage and civil unions that were
argued in state supreme courts between 2005 and 2009, and six of a larger
number of hearings that occurred in state judicial committees considering bills
regarding who should (or should not) be able to marry. Iend with analysis of
the 2011 Senate Judiciary Committee Hearing on DOMA,7 comparing it to the
initial 1996 hearing and to the 2013 Supreme Court oral argument about it.
Ishow how the claim about the morality of a category of person carried an
internal explosive device that detonated when the context changed. The argu-
ments and linguistic clothing that the 1996 DOMA put forth made possible the
demise of the act less than 20yearslater.
Introduction 3
My involvement with this project began as a result of a seminar I teach,

Communication in the Justice System. I was looking around the web for vid-
eos of potentially interesting legal exchanges and came across the oral argu-
ment about same-sex marriage that occurred in New Yorks highest court.8
This more-than-two-hour exchange, in which judges questioned attorneys
representing gay plaintiffs and state agencies, was at the time an unfamiliar
genre to me.9 Peppered with legal terms fundamental right, rational
basis, heightened scrutinyand with names referencing legal cases (e.g.,
Washington v. Glucksberg, People v. Kern), supreme court oral argument
sounded nothing like the criminal and civil trial discourse with which I was
familiar. What fascinated me and drew me step-by-step into the larger project
was the way judges and attorneys mixed legal talk with the most ordinary
of opinion expression and argument-making practices. As I listened, I found
myself making political and character inferences about the judges based on
their questioning. As a discourse analyst, I was immediately aware of a few
features of the judges talk that contributed to my judgments. I was curious
about what other features might be contributing, as well as the accuracy of
these initial inferences.
Prior to coming across this videotaped oral argument, the sources forming
my knowledge about the same-sex marriage debate were restricted to popular
media.10 In contrast to the larger societys framing in which religion is promi-
nent, in these court exchanges it was noticeably absent. The absence of religion
in the courts led me to wonder how visible religion would be in legislative hear-
ings where law-making was the institutional purpose. How different from the
courts were the discourse strategies of hearings when discussing the making of
a law bearing on gay persons and their rights? What were the identity sensitivi-
ties to which testifiers and legislators gave attention? How different were these
from the ones to which judges and attorneys attended?
Explication of the nature of government in the United States tends to
treat each branch of government as an autonomous unit, with each doing an
assigned task and therein enacting a system of checks and balances. Would a
careful inspection of the discourse in legislative and judicial branches debating
same-sex marriage support this view? In what ways might the official portrait
be different from what actually occurred?
To understand the identity-work that talk in these court and judicial
committee hearings was performing, the stage needs to be set. In the chap-
ters next section I give a brief history of gay rights in the United States,
focusing particular attention on the issue of same-sex marriage. Then Ipro-
vide an overview of the oral arguments, the judicial committee hearings,
and the additional materials Iused to develop the argument about identity-
work. In the subsequent sections, Idescribe the particular discourse analytic
approach I take, show how the approach ties to my central concern, and
preview upcoming chapters.
A Brief History ofSame-Sex Marriage and GayRights
In Hawaii in the early 1990s, Ninia Baehr and Genoa Dancel sued for the right
to marry. At the time that the suit made national news, most of the American
public, it is safe to say, had hardly considered the issue, precisely because it was
unthinkable (Cole 2013, 27). Roughly 20years later legalization of marriage
between same-sex couples had come to be regarded as inevitable. Amonth
before the US Supreme Court released its 2013 opinions on the same-sex mar-
riage cases, a survey conducted by the Pew Research Center found that a large
majority of both supporters and opponents saw the legalization of same-sex
marriage as something that was sure to happen. The change in assessment of
inevitability was especially marked in groups opposing same-sex marriage.
Between 2004 and 2013, the percentage of Republicans seeing the legalization
of same-sex marriage as inevitable rose from 47% to 73%; among white evan-
gelical Protestants, the percentage changed from 49% to70%.11
An important factor fueling this change was the activity of state courts.
Decisions of state supreme courts extending marriage rights to gays and lesbi-
ans accounted for same-sex marriages ascent from nowhere to near the top of
the national political agenda (Pierceson 2013, 1); litigation alters politics by
placing issues and claims for rights, blocked from consideration in the majori-
tarian political arena, on the public agenda (240). To be sure, as Rosenberg
(2008) has argued, litigation alone has limited power. But litigation regarding
these marriage cases was not occurring alone. At the same time that courts
were taking up these cases, gay rights groups were working to change society on
many other frontsin news coverage and media portrayals, through changing
workplace policies, and by encouraging individual gays and lesbians to speak
up. State courts were being fueled by the actions of the larger society and were
in turn fueling further change.
The pace at which laws and public attitudes about same-sex marriage
changed over this decade has astounded many (Baker, 2012). In the glacial
scheme of social change, commented syndicated columnist Ellen Goodman,
attitudes are evolving at whitewater speed.12 LA Times reporter David
Savage (2013) described the rate of change as unprecedented; and conserva-
tive commentator Franck (2013) characterized it as exceeding the speed of
thought. One need not go back very far in history to find a different portrait
of gay persons, including beliefs about their deserved rights.
In 1957 the American Civil Liberties Union defended the reasonableness
(and constitutionality) of laws defining homosexual behavior as a crime. As
Murdoch and Price (2001, 39)commented, homosexuals in the 1950s and 60s
were not viewed as a mistreated minority group. Thinking of homosexuals in
that way would have seemed as inappropriate to most Americans as consid-
ering purse snatchers or Communists an oppressed group. Straightforwardly
expressed, intense, and negative sentiment was a fact of American life well
Introduction 5
through the 1960s. A1966 essay in TIME, the best-selling news magazine of
that day, described homosexualityas
A pathetic, little, second-rate substitute for reality, a pitiable flight from
life. As such it deserves fairness, compassion, understanding, and when
possible, treatment. But it deserves no encouragement, no glamorization,
no rationalization, no fake status as minority martyrdom, no sophistry
about simple differences in tasteand above all, no pretense that it is any-
thing but a pernicious sickness. (Pinello 2003,127)
In the second decade of 21st-century America, such a stance seems shocking.

Sexual acts between consenting adults are no longer a crime; homosexuality is not
a mental disorder. Consider the events that contributed to that transformation.
In 19th-century America, there was little space between what was regarded
as a crime and what was taken to be sinful. Crimes were acts that violated the
natural law. Natural law philosophy (Leiser 1997; Leonard and Cain 2005), a tra-
dition that arose in the 18th century, assumed that there were natural, God-given
functions for body parts. Penises, for example, were designed to rid the body of
waste and to procreate. Using the penis for other reasons violated the natural law,
and accordingly states criminal statutes forbade acts where a penis was used for
unnatural purposes. For this reason, acts such as fornication, adultery, sodomy,
and the use of birth control were treated as crimes punishable by society.13
Although in the mid-1800s most states had sodomy laws, what acts and
persons these laws were understood to regulate differed from how the laws
came to be interpreted in the 20th century. Many of the early laws did not
even use the term sodomy, but often referred to the crime against nature
without specifying which particular acts were included in the category. The law
of Illinois, established in 1858, named it the infamous crime against nature,
either with man or beast; and Rhode Island (1857) the detestable and abomi-
nable crime against nature either with mankind or any beast. Georgias 1867
law offered somewhat more detail, defining sodomy as the carnal knowledge
and connection against the order of nature by man with man or in the same
unnatural manner with woman.14 What acts have been included as prohibited
under sodomy laws have changed with time. In 1878, fellatio was not a crime,
but by 1921 almost all states considered it one; cunnilingus was added to the list
of prohibited acts later in the 1900s in some states but not in others.15
Sodomy laws in the 19th century had multiple purposes, such as to ensure
public decency. But according to Eskridge (2008), the most important purpose
was to protect women, children, and vulnerable men against assault. In essence,
sodomy laws were established to protect those who could be preyed upon and
coerced. In many jurisdictions of the time, a man could not be convicted of
sodomy if the potential testimony was from a willing partner.16 Between 1880
and 1920, states began to make more specific sodomy laws and to enforce them
vigorously. In 1915, for instance, California included acts of cunnilingus and
fellatio in their law and categorized sodomy as a felony. Moreover, people com-
mitting moral turpitude crimes, largely sexual acts performed by homosexu-
als and prostitutes, were required to be sterilized. In 1939, in California alone
there were close to 900 sterilizations (Eskridge 2008). Such forced sterilization
of sexual perverts or mentally disabled persons did not come to an end until
the US Supreme Court case of Skinner v.Oklahoma in 1942 (Gertsmann 2008).
In 1948, before Chief Justice Earl Warren, widely considered to be a liberal
figure, joined the Supreme Court, he was governor of California. During that
time in California a person who was convicted of a second offense of sodomy
received an automatic life sentence.17
Sexuality until the late 1800s was what a person did, not who a person
was. Michel Foucault identifies 1870 as the time when talk about a kind of
person began. It was at this juncture that the term homosexual was coined.
Initially a medical term, ordinary people, not too long after its creation, began
to use homosexual as way to understand the self and seek societal tolerance
(Goldstein 1997).
In the early 20th century, mostly men of color were arrested for sodomy, but
this did not mean whites did not experience the effect of these laws. Blackmail
and threats were common. Whether enforced or not, sodomy laws situated
homosexuals outside the normal protection of the law (Eskridge 2008, 67).
These laws, legal in certain states till 2003, in Mohrs words, functioned as a
systematic way that society as a whole [told] gays they are scum (1997,61).
Following World War II, discrimination against gays ramped up. Federal
jobs were denied to anyone who had been arrested for a homosexual act. During
the McCarthy era, homosexuals were assumed to be communists. Presidents
Truman and Eisenhower supported measures to purge the government and
armed forces of all homosexuals. In addition, states were revising their inde-
cency laws. Whereas previously a person was likely to be arrested for sodomy
only if an act was performed in a public or semi-public space, by 1960, 21 states
had rewritten their laws to make same-sex activity of any kind acrime.
In the early 1950s, homosexuality was also added to the American
Psychiatric Associations Diagnostic and Statistical Manual (DSM). In the
DSM, homosexuality was defined as a sociopathic personality disorder.
Homosexuality remained a mental disorder until 1987. Although 1973 had seen
the removal of homosexuality as a main category of mental disorder, until the
revised version of the DSM III in 1987, the psychiatric establishment frequently
treated being gay as a mental disorder. Until that time, any gay man or lesbian
who experienced anxiety and decreased self-esteem because of his or her sexual
orientation could be diagnosed as having ego-dystonic sexual orientation.
Persecution, if not arrest and prosecution, of gays was commonplace in
large American cities, especially in popular congregating places such as bars.18
Then in 1969, things began to change. One Saturday night in June of that year,
the New York police raided Stonewall Inn, a gay bar in Greenwich Village.
Introduction 7
The raid turned into a riot with bricks being thrown, a fire destroying the
inn, and police fighting with patrons and other gay supporters who came to
the scene. Not long after the riot, which elicited major media attention, the
Gay Liberation Front formed. By the second anniversary of Stonewall, gay
pride marches were occurring in many major cities. Gay men and lesbians had
decided that it was time for change.
Beginning in the 1970s and increasing in frequency in the 1980s and 1990s,
gay rights organizations began to bring grievances to state and federal courts,
sometimes succeeding and at other times failing.19 With the passage of time, the
rate of success increased. In the 1980s, gays and lesbians won 42.2% of their
cases; by the 1990s, it was up to 53.6%. During the civil rights era of the 1960s
and 1970s, it was generally thought that social change would be facilitated by
bringing cases in federal courts rather than fighting battles in 50 different state
courts. As the makeup of federal courts became more conservative in the 1980s
and 1990s, gay rights organizations began to alter their strategy, targeting those
states it saw as most open to gay rights.
The particular gay right that was being contested also made a difference.
Writing in 2008, Gary Mucciaroni identified three of six rights issues that had
resulted in relatively high levels of political success:the legalization of homo-
sexual conduct, prohibiting hate crimes, and civil rights laws related to employ-
ment and housing. On its other three issues, social change was much slower.
Slow or no change took place on issues concerning marriage or civil unions,
adoption, and the right of gays to serve in the military. Of note, though, the
profile varied enormously state by state. Several states permitted lesbians or gay
men to adopt even before sodomy laws were struckdown.
Between the 1980s and 2003, there were three especially important gay
rights cases heard by the US Supreme Court. The first case, Bowers v.Hardwick
(1986), began in Georgia in 1982 when Michael Hardwick threw an open beer
in the trash can outside the bar where he worked. He was issued a citation for
drinking in public. When he did not appear in court for the citation, a warrant
was issued for his arrest. Soon after, a policeman came to his door and saw him
having oral sex with another man. Hardwick was arrested and charged with
sodomy, a crime which was punishable by 1 to 20years in prison. Of note, in
addition to sodomy being a crime at that time in Georgia, the law also forbade
out-of-wedlock sex and required the performance of intercourse in the mis-
sionary position.20 The state decided to not pursue the case, but Hardwick sued
the district attorney of the State of Georgia, a man named Bowers. Hardwick
argued that because the law was in place, he could be arrested at anytime.
The case made its way to the US Supreme Court, where by a 5-4 vote the
Court overturned a lower appeals courts ruling and found in favor of the State
of Georgia. Writing for the majority, Justice Byron White wrote that the right
to privacy, which is implicated by the Due Process Clause of the Fourteenth
Amendment, did not confer a fundamental right upon homosexuals to engage
in sodomy (Bowers v. Hardwick, 1986). Bowers, notes legal scholar William

Eskridge (2008, 262), is the most criticized Supreme Court decision of all time
that upheld a law against constitutional attack. Most decisions that garner
criticism (e.g., Roe v.Wade) strike down existing laws. The Bowers decision was
taken as a significant statement to the gay community that there would be no
expansion in how the Court understood privacy rights. In addition, straight
men began to invoke the sodomy law to deny child support responsibilities to
women who were lesbian. In 1987, according to a poll by the National Opinion
Research Center, 82% of the American public considered homosexual relations
to be always or almost always wrong.21
The second important US Supreme Court case for gay rights is Romer v.
Evans (1996). In the late 1980s and early 1990s, three cities in Colorado
Aspen, Boulder, and Denverhad passed ordinances prohibiting sexual orien-
tation discrimination. Then in 1992, a ballot to change the constitution, called
Amendment 2, was launched. A conceptual child of Anita Bryants Save
Our Children Florida campaign, Amendment 2 specified that no municipality
in the state of Colorado
shall enact, adopt or enforce any statute, regulation, ordinance or policy
whereby homosexual, lesbian or bisexual orientation, conduct, practices
or relationships shall constitute or otherwise be the basis of or entitle any
person or class of persons to have or claim any minority status, quota pref-
erences, protected status or claim of discrimination.22
In the 1992 popular referendum on Amendment 2, 53.4% of Colorado vot-

ers supported it, with 46.6% against it. The case was appealed by the ACLU and
other civil rights organizations, first in the Colorado Supreme Court and then
the US Supreme Court. The State of Colorado, in which Romer was governor
at the time, argued that it should have the right to signal the moral inferiority
of homosexuality; gays, the state argued, did not deserve the same protections
as women and blacks. The civil rights groups challenged the amendment as a
violation of the Constitutions Equal Protection Clause.23
By a 6-3 vote, the US Supreme Court struck down the Colorado law, declar-
ing it to be unconstitutional, motivated by animus toward gays and having no
rational basis. The case was interpreted by gay rights groups as a message that
the Court might be willing to reconsider its decision in Bowers v.Hardwick. For
this Romer decision, Justice Antonin Scalia was the author of a scathing dissent.
Citing Bowers v.Hardwick, he argued that Coloradans are entitled to be hostile
toward homosexual conduct. In what many at the time saw as an extreme and
unlikely assertion, he asserted that the Romer decision was but the first step down
a slippery slope that would result in same-sex marriage becominglegal.
The third important gay rights decision was Lawrence v.Texas (2003). In
Houston, Texas, a police officer came to John Lawrences home on what turned
out to be a false report of a weapons disturbance. The officer, upon enter-
ing Lawrences apartment, saw him having sex with another man. Lawrence
Introduction 9
was charged with sodomy. After an initial appeal in a lower federal court was
rejected, the US Supreme Court took the case.24 In a 6-3 opinion, the Texas
law was ruled unconstitutional, and five of the six justices also voted to over-
turn Bowers.25 With this 2003 Supreme Court decision, persons who engaged in
consenting sexual acts with a partner of the same sex could no longer be seen
as committing a crime in the United States. In this same year, in Goodridge v.
Department of Public Health (2003), the Massachusetts Supreme Court struck
down its state law which restricted marriage to opposite-sex couples. In 2004
same-sex couples began marrying in Massachusetts.
Many Americans assume that Hawaiis Baehr v.Lewin (1993) case was the
first instance in which same-sex couples pursued marriage. This is not so; there
were earlier attempts, particularly in the 1970s. The first case, Baker v.Nelson
(1972), involved two Minnesota men, John Baker and Michael McConnell,
applying for a marriage license. Having been denied, the men appealed their
case to the Minnesota Supreme Court. In their appeal Baker and McConnell
made three arguments as to why a marriage license should be granted. First,
they noted, Minnesota had no explicit ban on same-sex marriage and therefore
they should be allowed to marry. Second, they drew an analogy to Griswold
v.Connecticut (1965), a US Supreme Court case that overturned a law prohibit-
ing the use of birth control by married couples on the basis of an individuals
right to privacy. Finally, they argued that the case of Loving v.Virginia (1967),
which extended the right to marry to people of different races, applied analo-
gously to them. The Minnesota Supreme Court did not support their argument,
and when they petitioned the US Supreme Court to take their case, the Court
refused to grant them a hearing for want of a substantial federal question
(Pierceson 2013). Soon after, Michael McConnell, who was a librarian, had a
job offer from the University of Minnesota withdrawn because his attempt to
marry a man gave evidence that he engaged in criminal conduct.26
The 1970s saw a small set of unsuccessful attempts by gays and lesbians
to marry. By and large these attempts occurred in liberal-leaning large cities
and college towns. One of the attempts occurred in Boulder, Colorado, the
city in which Ilive. In 1975, Clela Rorex, a newly elected clerk and recorder in
Boulder County, issued marriage licenses to six same-sex couples. Soon after,
the Colorado Attorney Generals office ordered her to stop and declared the
licenses not to be legal. Colorado state law, the attorney general opined, required
married couples to be heterosexual. In 2013, 38years later, Colorado passed a
law making civil unions legal. To mark the occasion, Ms. Rorex, who was mov-
ing back to Boulder, was given permission to officiate the civil union ceremo-
nies that were held at midnight on the first allowable date (Brennan2013).
The issue of same-sex marriage disappeared from the national scene for
two decades, but changes were afoot during these years that would make claims
about same-sex marriage, which had been rejected in the Baker case, persuasive
the next time around. The 1970s ushered in a gender revolution that contin-
ued to unfold in the next two decades. The understood desirable relationship
between men and women, both in private and in public, was radically reworked.
Not only had birth control become legal, but it had become effective. Women
had much greater control of their bodies. In large numbers, women also began
claiming professional positions in the workplace, and the roles of wives and hus-
bands in marriage were being redefined toward an equality norm. The goal of
providing a stable place to raise children had been demoted as the central reason
to marry. Men and women were seeking partners primarily to satisfy love and
companionship needs. When these needs were not met, spouses were availing
themselves of the then-possible no-fault divorce (Cherlin 2009). What marriage
meant to Americans in the 1990s had changed markedly from the1960s.
With the 1993 Hawaii Supreme Court decision that declared marriage
restricted to heterosexuals as discriminatory, a debate about the reasonable-
ness of same-sex marriage moved to the national stage. Although an immediate
populist reaction to the Courts ruling occurred in Hawaii and resulted by 1998
in passing a law in the Hawaii legislature that changed the definition of mar-
riage to one man and one woman, the issue of same-sex marriage, and what
would happen if any state legalized it, had become a nationalissue.
The Full Faith and Credit Clause of the US Constitution (Article IV,
section 1)requires states to recognize each others legal proceedings. Because
states feared that they would be called upon to recognize same-sex marriages
performed in other states, Congress drew up, and then overwhelmingly passed,
the DOMA,27 a bill that President Clinton signed into law in 1996. DOMA
stated that the Full Faith and Credit Clause did not apply to same-sex mar-
riages, and that no state would be required to recognize another states same-
sex marriages. Asecond part of DOMA defined marriage as meaning partners
of the opposite sex, thereby ensuring that same-sex spouses could not claim
any federal benefits related to marriage, such as tax benefits, social security,
and immigration rights.28 In the years that followed, many states passed their
own DOMA-like statutes or constitutional amendments. As of 2003, no state
allowed same-sex marriage and four had passed marriage amendments defining
marriage as between one man and one woman. By 2013, 36 states had passed
laws or constitutional amendments banning same-sex marriage, 14 states and
the District of Columbia allowed it, and 6 others had legalized civil unions.29
The discourse Ianalyze comes from the state supreme courts and legisla-
tive hearings that contributed to the 2013 polarized set of laws regarding same-
sex marriage.
AIDA, GPT, and theData
Discourse analysis is my central methodological tool. At its simplest, discourse

analysis involves recording talk, creating a transcript of it, and then studying
the transcript. Discourse analysis, as Roger Shuy (1993, xviii) puts it, involves
Introduction 11
attending to the little things that most people ignore as they try to under-
stand the big things they hear. Discourse analysis is not a single thing; it
is better thought of as an umbrella descriptor for a family of approaches.30
These approaches, each of which has a distinctive name, can be differentiated
by what an analyst looks for in the transcript; how much attention is given to
the recording; whether it is desirable for theoretical ideas to shape looking and
interpreting and, if so, which ones; and what role, if any, an analysts political
commitments shouldplay.
I use action-implicative discourse analysis (AIDA), the methodological arm
of grounded practical theory (GPT) with the goal of building a theory about
framing of contentious person-rights issues. AIDA (Tracy 2005; Tracy and
Craig 2010)offers a set of steps to follow with regard to selection, collection,
and analysis of data, including suggestions about kinds and amounts of talk to
record and transcribe, level of transcription detail, ways to delineate and define
communicative practices and problems, and suggested supplementaldata.
GPT is a meta-theoretical approach that involves the building of norma-
tive theory through reconstructing communication practices. GPTs goal is to
develop analyses that will be useful for reflection about talk-rich practices and
peoples actions within them (Craig and Tracy 1995). Communication prac-
tices are of two main types. The first and most investigated kind has been situ-
ated practices. Situated practices occur in institutional sites and usually have
names. In the legal context, examples of situated practices would be voir dire,
plea bargaining, sentencing, jury deliberation, or, as practices may be framed
at different levels of abstraction, rape trial discourse or criminal trial discourse.
Situated practices involve a socially recognizable package involving a place,
a set of people, and a relatively clear institutional purpose. Oral argument in
supreme courts and judicial committee hearings are additional examples of
situated practices. The second type of practice is a dispersed practice. Dispersed
practices are talk-focused activities that occur in multiple places. Dispersed
practices come with less-readily-attached names; they are most often formu-
lated as a kind of speech event. Examples would be accounting, blaming, or, as
Iname the dispersed practice that is of central interest in this book, framing of
person-rights issues. In essence, then, Ifocus on the dispersed practice of fram-
ing of person-rights issues by studying the situated practices of oral argument
in supreme courts and judicial committee hearings.
GPT works to reconstruct a communicative practice at three levels:(a)the
problem level, (b)the technical level, and (c)the philosophical level. As Craig
and Tracy (2014, 232)note:
The problem level refers to the tensions or dilemmas that can be found in
any important communication practice; this level is the entrance point for
GPT study as naming of a practices dilemmas leads downward to identifica-
tion of the particular discourse moves that reflect and manage troubles (i.e.,
the technical level) and upward to identification of the situated ideals (i.e.,
the philosophical level) animating a practice. Situated ideals are the largely
inchoate beliefs that participants hold about how they ought to act within
a practice. Most often these situated ideals for action differ from what is
officially espoused. Situated ideals are reconstructed by an analyst through
examining the criticisms participants make of each others in-context actions
and through juxtaposing various espousals of an institutions and an activi-
tys purposes gained through interviews or study of institutional documents.
The primary discourse materials that inform this analysis are the taped
and transcribed oral argument in the eight state supreme courts that heard
cases and six legislative hearings about same-sex marriage. Increasingly,
states are taping their judicial and legislative proceedings and making the
tapes available to the public on government websites. Not all states do this
regularly, but for these same-sex marriage appeals and hearings, all states
Icontacted had taped the proceedings. If files were not posted on the web,
I contacted offices of the supreme courts and legislative bodies to request
digital files of the proceedings. In all cases, materials were readily shared
with me by the government offices. With these tapes, Icreated transcripts of
the oral arguments and the public hearings. Transcripts captured words, rep-
etitions, and repairs (Tracy 2005).31 For the oral argument transcripts, Ialso
identified which judge was questioning which attorney and where overlap-
ping speech occurred. The transcripts are less detailed than those used in
conversation analysis (Atkinson and Heritage 1999), but more detailed than
transcripts created by official court reporters in trial proceedings (Heffer
2005). These two sets of transcripts, which generated 60 hours of talk, are
the primarydata.
In addition, there are other kinds of data that supplemented the focal
materials which are used in one or two chapters. Secondary materials included
12 interviews with state supreme court justices, the written judicial opinions
produced by the Washington and Iowa courts, tapes and official transcripts of
the US Supreme Courts 2013 oral argument about DOMA and the US House
1996 and Senate 2011 Hearings on DOMA, and a smattering of media texts,
litigant and amicus briefs, judicial opinions, legislative bills, and committee
minutes. Table I.1 provides a brief description of these materials. More specif-
ics will be given in the relevant chapters.
Upcoming Chapters
The claims I develop in this book are descriptive and normative. On the descrip-
tive side, my aim is to provide a rich sense of the communicative problems and
discourse strategies in two understudied legal genres. Within each genre I give
Introduction 13
TABLEI.1
Overview ofData
Discourse Data Description
Primary materials
State supreme court oral Eight cases:All of the state supreme courts that heard marriage
arguments law appeals between 2005 and 2011. This included cases from
Washington, NewYork, New Jersey, Maryland, Connecticut, and Iowa,
with two from California. Oral argument ran from 1 hour to 3.5 hours
in length.
State legislative hearings A sample of six hearings from all those that occurred in the focal
of judicial committees period. The hearings focused on proposed marriage law bills, ran for
2.5 to 18 hours, and involved up to 176 testifiers. Hearings came
from New Jersey, Vermont, Hawaii, Rhode Island, Iowa, and Colorado.
Secondary Materials
Interviews with state 12 interviews (4060 minutes in length) asking judges for their
supreme court justices views of oral argument, how it related to the larger judicial process,
from 5 states and interactional challenges they faced.
Judicial opinions in The 6 judicial opinions (plurality, concurring, and dissenting) in
Washington and Iowa Washingtons Andersen v.King County (2006) and the unanimous
Iowa opinion Strauss v.Horton (2009).
Oral argument in the 2013 1.9 hours of audiotape plus the court-prepared transcript.
US Supreme Court DOMA
case33
The 1996 US House and The congressionally prepared 250-page document of the oral and
2011 US Senate Judiciary written testimony on DOMA, plus the 45-page report issued by
Committee Hearings on theHouse.
DOMA34 Atape and congressionally prepared transcript of the 2.5-hour July
20, 2011 hearing on S.598, the Respect for Marriage Act.
Miscellaneous materials Litigantbriefs
Amicusbriefs
Supreme court websites
Judicial opinions
Popular media and fund-raising appeals about same-sex marriage
Reports or minutes related to the hearings
attention to the challenges speakers face in establishing their moral reasonable-

ness and professional competence, as well as the discursive means by which
they manage those challenges. As disputes about whether a category of person
is entitled to a right are moral matters, speakers cannot avoid setting in motion
morally linked identity implications about themselves, the spoken-about, and
the spoken-to parties. These identity-work practices are especially fragile in
sites of dispute as phrases of justification carry implications of accusation
toward the person and position the justification counters.32
American society changed its opinion about the reasonableness of mar-
riage for same-sex partners in the 10-year period I analyze. This change, as
noted earlier, occurred with amazing speed. Thus, my second aim is to chart
how this societal change was manifested in the court and hearing discourses,
and to reflect about how talk in these courts and hearings both affected, and
was affected by, the happenings in the other setting as well as the larger society.
Having unpacked the identity problems and discourse strategies within these
legal genres, I turn to the normative questions: How should we think about
the design of and communicative conduct in oral argument and committee
hearings? How ought we to understand the relationship between law interpret-
ing and law making? What are the best, most defensible ways of framing and
conducting disputes about person-rights issues?
The books first section focuses on discourse genres in the state supreme
courts. In Chapter1 Iprovide a portrait of oral argument, illustrating distinc-
tive features of the genre and their connection to judge identities. Judges under-
stand themselves to vary in questioning styles. Some of these questioning style
differences are unproblematic; others cause trouble for judges sense of them-
selves as administering justice in a fair and consistent manner. After explicat-
ing this problem, Icharacterize the usual facework style of oral argument and
contrast it with a visible instance of its violation.
Chapter 2 examines the person-referencing terms used for gay plaintiffs
that attorneys, judges, and courts in the first three marriage cases used dur-
ing oral argument. Ishow how these choices in naming practices cued parties
political stances toward same-sex marriage. Then Itrack how naming practices
in the larger society and earlier court cases changed across time and make clear
the cultural significance of these naming changes.
In the next chapter I examine judges questioning practices and show
how distinctive discourse moves, as well as patterns in judges questioning of
opposing parties, make apparent the political-legal ideology that a judge holds.
Tough questioningthe name I give to question-posing movesreveals a
political ideology that judges assert is not at play as they interpret thelaw.
Chapter 4 considers the problem of how judges frame their opinion as
right and adhering to the law when many of their peers disagree. In particular,
Iidentify the rhetorical strategies used in written judicial opinions, contrasting
the plurality decision by the Washington court, in which the majority could not
agree on reasons for their votes, with the unanimous decision reached by the
Iowacourt.
In the books second section, the focus turns to the judicial committee
hearings. Chapter 5 shows that the distinctive ways each hearing formulated
the issue for debate and structured p articipation contributed to advantaging
(or disadvantaging) a particular side of the dispute. The design of legislative
hearings, I give evidence, is not simply neutral backdrop for citizen testimony
but itself tilts the playing field. At the chapters end I reflect on the implications
of this fact for the design of hearings.
The feature of hearings that most distinguished them from the courts
was the visibility of religion in the testimony. Chapter 6 describes six strate-
gies citizens used to bring religion into their testimony. Then I describe the
Introduction 15
speaker-protective facework moves that were found primarily in the talk of

those testifying against same-sex marriage. The commonality of these moves,
Iargue, gives evidence of the transformation in American discourse regarding
what could be said in public about gay persons.
In Chapter 7, I focus on the narratives told during the hearings. Pro-
speakers were the primary storytellers in the hearings, and the chapter begins
by describing three types of stories presented by testifiers. Iunpack how pro-
speakers narratives carried out argumentative work and suggest how these
story-arguments contributed to changing public opinion about gay marriage.
Then Iexamine a pair of dueling stories to show how stories, albeit not with
equal ease, can be used by parties on both sides of a person-rights dispute to
make reasonable the self, unreasonable the opposing party, and (un)sympa-
thetic the disputed-about parties. In concluding, Idraw out the significance of
a story coda, being on the right side of history, that was repeatedly invoked
in the last hearing that was absent in the earliestone.
The third and final section of the book knits judicial committee hear-
ings and supreme court oral argument together and advances conclusions. In
Chapter 8 I look at the debates about DOMA that occurred in the US House,
Senate, and Supreme Court. By contrasting debate at two points in time (1996
and 2011) within the same genre (judicial committee hearings) and by contrast-
ing two genres (a hearing and oral argument) at one historical moment (i.e., the
early years of the second decade of the 21st century), I show how genre and
historical time have shaped what speech is publicly permissible. In addition,
the analysis makes evident how claims about the motives and the morality of
participants permeated the talk. An issue of who was or was not moral, itself,
became a matter of debate.
In the last chapter I summarize what this 10-year study of court and
legislative hearing debates about marriage equality tells us about identity-
work and societal change. Then I offer seven proposals that highlight key
insights gleaned through analysis of the marriage equality debates and sug-
gest directions for future study. I conclude with an epilogue that narrates
what occurred in American society from the time the US Supreme Court
released its decision about DOMA in June 2013 (US v.Windsor 2013) until
June 2015 when the Court legalized same-sex marriage for all US states
(Obergefell v.Hodges2015).
PARTONE
Discourse inState
SupremeCourts
1
The Genre ofOral Argument
Writing in the mid-20th century and arguing with the then-dominant view of
language as a string of unrelated sentences, Russian scholar Mikhail Bakhtin
asserted that speech came in genres.1 Today Bakhtins notion that speecha
concept which includes writinginvolves stable packages of expression is the
taken-for-granted view, the start point of much discourse research.2 Bhatia
(1993, 13), a visible analyst of many kinds of legal discourse, defined genre as
a recognizable communicative event characterized by a set of communicative
purpose(s) identified and mutually understood by the members of the profes-
sional or academic community where it regularly occurs.3 Competently per-
forming the genres of a profession evidences a persons membership in that
professional category. Although genres are known by their regularities, they need
not be enacted straightforwardly. Communicators play with and bend genres in
order to display self as possessing unique and personally desired qualities.4
In this chapter Iweave together excerpts from the judge interviews,5 dis-
course instances of oral arguments,6 and coding of selected features from the
court exchanges to illuminate the discursive character of oral argument focusing
on one particular challenge that judges face. In the chapters last section Iana-
lyze a deviant caseone instance out of the 35 exchanges between attorneys
and courtsin which the genre of oral argument was enacted in a markedly
different style. For this deviant case, Isuggest what identity was accomplished
for the focal attorney by his and the courts use of non-typical discoursemoves.
State Supreme Courts and Their FocalGenres
State supreme courts are the final court of appeal for matters of state law.7 Across
the United States, these courts vary in a number of ways:their number of judges
(from five to nine), whether the judges are elected or appointed, how often oral
argument occurs, whether argument is heard en banc (by the full court) or in
panels, and the amount of time allocated for oral argument (Comparato 2003; 19
20 Discourse in State SupremeCourts
Langer 2002). Of note, the activities that occur within these courts involve no
lay parties. Appellate practice is restricted to legal professionals.
A first decision that a supreme court makes is whether to grant a writ of
certiorari (agree to hear a case).8 With the exception of only a few of the small-
est states, state supreme courts are able to decide which cases they will take.9
Courts are likely to take cases when they judge a case as raising an issue of
how the law ought to be interpreted. Washington States Supreme Court, for
instance, grants review of roughly 135 cases a year from the more than 1,000
that apply. Acase is taken only if [it] involves a question which has given rise
to conflicting appellate court decisions, an important constitutional question,
or a question of substantial public importance.10
If a court decides to take a case, the appealing and responding parties
prepare written briefs on the merits of selected issues that the court identi-
fies as the ones that are open for argument. These litigant briefs are a tightly
constrained genre. Supreme court websites provide guidelines for the number
of permitted pages, margins and font, required sections, how sections are to be
ordered, and exactly which issues may be argued.11 In high-visibility cases, it is
also common for various professional and political groups to submit friend-of-
the-court, amicus, briefs that highlight the consequentiality of the decision and
give reasons why the court should decide a particular way. In the eight cases
that are the primary data, the number of amicus briefs ranged from a low of 21
to a high of 63. These numbers evidence the importance of the dispute about
marriage rights, as most cases in state supreme courts do not include amicus
briefs.12 Following a courts reading of litigant and amicus briefs, oral argu-
ment occurs. Then, the justices hold a private conference in which they discuss
the case and vote; months later, one or more written opinions announcing the
judges votes and their legal reasons for majority, concurring, and dissenting
opinions are published.
Much of an appellate judges work is either non-interactive, i.e., reading
briefs and writing opinions, orfor the occasions that are interactive, such as
the decision-making conferenceprivate and highly guarded (Dickson 2001).
Oral argument is both interactive and public. It is the primary opportunity
for judges to present the public face of justice. It is a crucial discourse genre
in which judges, and the attorneys appearing before them, do identity-work.13
Table 1.1 presents an overview of key parties and a snapshot of the eight cases
that are myfocus.
Oral Argument and Its Key Purposes
Oral argument is the time when the appealing and responding attorneys address
questions from the judges. The genre begins with a short presentation by the
The Genre of Oral Argument 21
TABLE1.1
State Supreme Court Marriage Law Appeals
# of Female J.of # of # of Appealing
State Case (Year) Judges Judges Color Att. Amici Party25 OA Length
WA Andersen v.King 9 4 0 5 21 state 88 mins.

County (2006)
NY Hernandez v.Robles 6 3 1 7 49 plaintiff 138 mins.
(2006)
NJ Lewis v.Harris 7 3 2 2 25 plaintiff 65 mins.
(2006)
MD Conaway v.Deane 7 2 2 2 23 state 58 mins.
(2007)
CA In re Marriage Cases 7 3 1 8 44 plaintiff 214 mins.
(2008)
CT Kerrigan 7 2 2 3 21 plaintiff 167 mins.
v.Commissioner of
Public Health (2008)
IA Varnum v.Brien 7 1 0 2 24 state 107 mins.
(2009)
CA Strauss v.Horton 7 3 1 6 63 plaintiff 192 mins.
(2009)
Note:OA, oral argument.
attorney(s) for the side that is appealing a lower courts decision, but quickly
the presentation turns into a question-and-answer exchange between that attor-
ney and the judges. At the end of a brief pre-allocated amount of time, usually
30 minutes, the first party sits down. The same sequence of activities occurs
with the second party. In some courts, a party may include several attorneys,
each of whom tackles one piece of that sides argument; in other courts, each
side is allowed only a single attorney. Typically the party who goes first, the
attorney petitioning to overturn the lower courts opinion, saves a portion of
his/her time for a rebuttal.
Oral argument occurs within a physical setting that establishes whos who.
One need not hear anyone speak to have a sense of who the participants are.
Judges are seated at the front of the room on a raised bench, they enter the
room last, they wear distinctive black gowns,14 and unlike the attorneys who
speak, each has his/her name prominently displayed and has access to an indi-
vidual microphone. From the start, then, the design of the communication
scene presents the judges as the owners and hosts of the space. Hierarchy, not
equality, is the value that the practices set-up proclaims.
In the interviews, justices described oral argument as serving six main
purposes.15 Particularly prominent in state justices responses was the goal of
exploring the consequences of the decision they would be making. Justice B
pointed to how oral argument allows for issue exploration in ways that brief
reading cannot.
Excerpt 1.1(J-B)
Ive been on the court now nine years. Icant imagine not having oral argu-
ment because when Iam reading the briefs Ithink about well what are
the implications? Because if you-if youre taking a case that you think is
of public interest, you have to be thinking about the implications of your
decisions in other cases. Its not just case driven Um and so it is really
incumbent upon us to uh explore it with people who have lived with it
for whatever period of time because they do have insight into what they
believe would be the implication of this decision.
Justices oriented to features of their courts mission that made this function
of oral argument especially salient, implicitly contrasting their job with that of
intermediate appellate courts. As Justice L noted, To get to the court there
has to be unique issue, one that will reoccur. One of great public importance.
Aconstitutional issue or unsettled law. That is, state supreme courts, like the
federal one, not only apply existing law but build new understandings of the
laws meaning and scope, and oral argument is important in accomplishing
this. In addition to the implication-testing function, oral argument was used to
fill gaps in information, to clarify advocates positions and enable attorneys
to have one last chance to persuade. In response to an interview question about
whether the questions posed during oral argument affected how an opinion was
crafted, Justice Aresponded, Absolutely. Because there may have been mushy
parts of the brief that we want clarified and those are where the questions tend
to focus. Another purpose of oral argument justices reported was to influence
the thinking of their fellow justices. Questioning during oral argument, as one
justicenoted,
Excerpt 1.2(J-L)
Can actually be a form of communication between the justices while theyre
on the bench (I:Yeah). We have a practice here that we do not discuss the
case uh before oral argument (I:Mm-hm) Um um except internally within
our own chambers. We may discuss with our law clerks. Um but the-we
do not communicate from law clerk to another chambers set of clerks or
from justice to justice.
Most justices spend very little time in each others presence. Decision-
making conferences are the central place that justices talk jointly about a case.
Given the restricted amount of time for these occasions, oral argument enables
conversation about a case to start before the conference.
Lastly, oral argument in these state courts serves to make appellate justice
accountable to citizens. Justice E contrasted his own court with other supreme
courts, noting how some of them dispense with oral argument almost entirely.
His court does not. Our tradition is to have oral argument if we accept the
caseWere the face of the court. Were the public. But it was not merely
that oral argument was a public activity, but it also enacted fairness and justice
for all to see. When asked to discuss the purpose of oral argument for society,
Judge L recounted the history of televising in his court. Having oral argument
easily available to the public, he commented, takes the mystifying thing out of
it. It allowed judges to display that they took seriously the job of adjudicating
difficult disputes.16
Identity-Constructing Discourse Actions
Within a state supreme court setting, participants, as appellate judges and

petitioning or responding attorneys, talk in distinctive ways that construct the
communication practice as oral argument. The practice and these interactional
identities form an interlocking field, with the practice and the identities con-
structed simultaneously through families of discoursemoves.
FRAME-CONSTRUCTINGMOVES
The turn-taking structure and the forms of address and reference employed by
the parties construct oral argument as a highly formal discourse genre. Adis-
tinction that conversation analysts (Drew and Heritage 1992) have made is
between occasions that are locally managed by the participants (most conver-
sations) and those that have pre-allocated turn structures (many institutional
encounters). An interaction that has a highly pre-allocated structure spells out
who can talk, when, for how long, and to do what kinds of speech actions.
All court exchanges use pre-allocated turn structures, but appellate courts are
among the most pre-allocated kind of exchange. Besides the order of speak-
ers being determined, the number of minutes is spelled out in advance, with
the chief justice regularly reminding speakers of their time limitations. This
straightforward announcement by the chief judge and acceptance by the attor-
neys reflects partiesroles.
Excerpt 1.3, CA, CJ-G=Chief Justice George, A-TS=
Attorney Stewart17
CJ-G:Alright, Im afraid your time is up, assuming you wish to reserve your
time [for rebut-rebuttal and we will hear now from uh Mr. Minter.
A-TS: [I do thankyou.
Another facet of pre-allocation is a restriction on the kinds of acts parties

may perform. For some parties the restrictions are stringent; for others they are
less so. In this setting, the right to ask questions is that of the appellate judges.
The attorneys do the answering. This right of judges to question, in fact, is one
important discourse feature distinguishing appellate judges from trial judges.
Judges have considerable freedom, as Iwill show in subsequent examples, in the
content and format of the utterances that count as a questioning turn. In addi-
tion, although judges often allow attorneys to present for a while before they
begin questioning, they need not do so. Appellate judges may ask questions
whenever they choose. For instance, in one case a judge began questioning an
attorney even before he concluded one sentence. The brevity of the attorneys
presentation elicited courtroom laughter, but this unusual exchange did not
stop the justices questioning.
Excerpt 1.4, CA, A-K = Attorney Krueger, AJ-K=Justice Kennard
A-K: Good morning, your honors, uh may it please thecourt-
AJ-K:Mr. Krueger,tobe-
((laughter and simultaneous talking))
AJ-K: Yes, Id like to get my question in. Um its a threshold inquiry
In addition to the institutionally formatted interactional structure,

the person-referencing forms used by both parties construct the judges as
formal-speaking persons of high status, as well as judges of a particular
kind. The person-referencing practices in the courtroom are immediately
noticeable, contrasting with other areas of American life where first names
are preferred (Lakoff 1989). At the start of an appellate session, a bailiff
announces the arrival of the justices in the courtroom, using a ritualized
statement that includes deferential reference forms for key participants.
In Californias Supreme Court, the chief justice is distinguished from
other justices, and the group as a whole body is acknowledged. The short
announcement also includes two instances of a status-enhancing modifier
(honorable).
Excerpt 1.5,CA
The Honorable Chief Justice and Associate Justices of the Supreme Court
of California. Hear yea, hear yea, hear yea, the Honorable Supreme Court,
sitting en banc, is now in session.
Throughout the occasion, judges uphold the formality of oral

argument and themselves as formal speaking- persons through their
repeated use of title plus last name (Ms. Stewart, Mr. Krueger) or the role
form counsel to address attorneys. Judges, in turn, are addressed as your
honor, or by title and last name (Chief Justice George). But it is not merely
the presence of the address form your honor that is significant, it is its
frequency that is striking. In Californias In re Marriage Cases, roughly every
260 words, the token your honor was used, i.e., a total of 131 times in the
214 minutes of oral argument. In addition, the attorneys and judges regu-
larly reference prior judges comments in their answers using collective terms
of deference (this court) that sustain a view of the changing set of people
as an ongoing institution.
Excerpt 1.6, CA, Attorney response to Chief JusticeGeorge

Thats correct, your honor, and some of that change has been at the hands
of this court. Sometimes in the common law arena, like cases like De Burgh,
where the court
The repeated use not only of formal terms of reference and address, com-
bined with the content of the titles justice and chief justice, enact the par-
ties not just as judges, but as a particularly high-status kind ofjudge.
LEXICAL AND SPEECH ACT MARKERS
In addition to the scene being framed as a formal one, certain aspects of speak-
ers vocabulary and speech act choices enacted and reflected the judges as legal
professionals of a very particular type. A first marker was the use of argu-
ment meta-discourse. Meta-discourse refers to the language that speakers use
to name what speakers are doing in their communication (Craig 2008); in state
supreme courts, argument terms were pervasive. Not only did judges ask what
argument attorneys were putting forth, but they repeatedly labeled the attor-
neys moves using argument language. Judges referred to an attorneys claim,
evidence, position, argument, premise, reason and so forth. Excerpts
1.7 and 1.8 are two examples.
Excerpt 1.7, CA, Justice Kennard

What is the most significant difference uh between domestic partnership
and marriage, is it that domestic partnership, according to your position,
doesnt provide the title, status, or stature of marriage?
Excerpt 1.8, CA, Justice Werdegar
Now, what have you argued, either in your brief or would like to argue this
morning, that is different from the Attorney Generals argument?
When speakers make arguments, they do not need to use argument meta-
discourse. Robert Craig and I(Craig and Tracy 2010)18 compared the frequency
of argument terms from three other courts in this data set (NJ, NY, WA) to
those used in New Jerseys public hearing on same-sex marriage. In the legisla-
tive hearing, citizens used an average of 3.1 argument words per 1,000 words;
in the court cases, argument terms were employed an average of 11.2 words per
thousand. Argument meta-language suffused the appellate court exchanges,
occurring in 29% of justices questioning turns in the eightcases.
To the ordinary person, as well as beginning law students, the most visible
feature of a lawyers identity is the extensive and distinctive legal vocabulary
(White 1985). The vocabulary that lawyers use not only cues their law iden-
tity, but it can also indicate a participants particular legal role. Lexical choices
can hint at whether a speaker was a trial or appellate court judge; choices also
will reflect the level of court in which a judge is presiding. In state supreme
courts, where constitutional issues are one important focus, vocabulary such
as rational basis, strict scrutiny, fundamental right, suspect class, cert
petition, and amicus brief enact participants as appellate practitioners. In
addition, the citation of prior cases and statues, often in a highly coded form,
enact speakers as involved with appellatework.
In Excerpt 1.9, for instance, Judge Morenos reference to Perez is a ref-
erence to a 1948 California case named Perez v.Sharp, which was the first
US case to recognize that bans on interracial marriage violated the federal
Constitution. The attorney to whom the question is directed is assumed to
both know the particulars of this case and to know, given the immediate
discussion context, that it is this particular Perez casefrom the many other
cases that have Perez in their titlethat the judge is referencing. The use
of distinctive vocabulary, then, reflects and enacts the practice of appellate
lawyer andjudge.
Excerpt 1.9, CA, JusticeMoreno
So Perez involved a suspect class, acknowledged suspect class of race, uh
and the fundamental right to marry. Do we have to agree with you that
sexual orientations a fundamental-is a suspect class in order to apply Perez
to thiscase?
Repeated references to cases and statutes function as a facework strategy to

display self as attentive to using objective, impersonal criteria to make deci-
sions. Across the eight cases, justices used explicit case references in 15% of
theirturns.
A third device that enacted appellate judge identity was the use of neu-
trality markers in question formulations. Neutrality makers, to draw on a dis-
tinction developed by Clayman and Heritage (Clayman 1992; Clayman and
Heritage 2002a and 2002b) are ways of posing challenging, often critical ques-
tions to a person while marking the question-askers position on the issue as
a neutral one. In news interviews, neutrality markers included devices such as
attributing a comment to a third party or including a vague preface in a ques-
tion such as it is said that. In the court, neutrality markers occurred when a
judge advanced an argument and explicitly attributed the position to the other
side, either by referring to an attorney by name or by using phrases such as the
otherside.
Excerpt 1.10, CA, Justice Werdegar
Ms. Stewart, as Iunderstand it, its-its more or less a given that the state
can define marriage and its attributes. What do you say to the uh opposing
partys argument that tradition and history have always assumed, if not
expressly said, that marriage is between a man and a woman? Because that
is the other argument that they will be making beforeus.
Excerpt 1.11, CA, Chief JusticeGeorge

But-but here it seems that the statutory scheme does define marriage by
whom it excludes, to the extent of saying shall be only between a man and
a woman. So, Im-thats the argument the other side is making, so Id like
you to addressthat.
Finally, a speech act that simultaneously reflected and enacted a speaker

as an appellate judge was the use of hypothetical questions. Hypothetical ques-
tions are atypical formats in legal practices that engage with lay parties. They
are rarely used in attorney questioning of witnesses during a trial or a judges
questioning of a defendant during plea-taking. But, between law professionals
they are commonplace. Beginning in law school, not only is Socratic questioning
a default interaction frame but hypothetical questions become frequent (Mertz
2007). Students are expected to come to an understanding of the meaning of
the law and the limits of a claim, and to accomplish this goal, professors ask
hypothetical questions. Hypothetical questions, then, are a mini-enactments
of doing law. When asked in an appellate courtroom, they present askers as
appellate judges; they also altercast the question recipients as members of the
legal community, familiar with this way of arriving at meanings. An example of
a hypothetical question is seen in Excerpt1.12.
Excerpt 1.12, CA, JusticeBaxter
Well, counsel, let me-let me follow up on that. Uh uh lets assume that um
uh family code section 308.5 adopted by the initiative process, uh contrary
to your view, prohibited um uh same-sex marriages contracted in California,
lets just assume that as a fact. Now lets assume that the legislature didnt
like that and immediately passed a statute um rejecting that limitation. That
act by the legislature would be unconstitutional, would it notbe?
RELATIONAL DEFINERS
An important part of the identity of appellate judges is their relational posi-

tioning relative to the attorneys with whom they speak. The courtroom talk
enacts judges as the powerful parties but, unlike other kinds of interaction
(Pomerantz 1984), there is no sense that disagreement is a delicate activity. The
sense of judges as high-power persons comfortable with attorneys disagreeing
with them is accomplished through three discoursemoves.
A first move is the initiation and management of interruptions. It may
be stating the obvious to say that the judges in appellate courts are the parties
with the greatest authority and power. One way that parties enact this relation-
ship is through their management of interruptions. Simply put, judges initi-
ate interruptions; attorneys rarely do. In addition, attorneys typically accept a
judges interruption without protest. They neither call the judge on interrupting
(e.g., Im not finished yet), nor continue talking more than a few words.
Attorneys do not compete with judges to talk. Of the 72 interruptions that
occurred in the first California case, 60 were initiated by judges. Moreover,
when attorneys were interrupted, they either stopped mid-utterance (47 times)
or continued 35 more words to a grammatical transition (the other 13 times).
Atypical interruption can be seen in Excerpt1.3.
Excerpt 1.13, CA, CJ-G=Chief Justice George, A-KM=
Attorney Mennemeier
CJ-G: What about the enactment of Proposition22?
A-KM: Well ce-certainly on its face its-[its-it-
CJ-
G:[In 2000, in the year2000.
In instances where an attorney interrupted a judge, the interruption often had a

noncompetitive even cooperative quality, as is illustrated in Excerpt 1.14, where
a judge mixed up his pronoun references and the attorney began talking mid-
utterance.19 If an attorneys interruptions did not have this cooperative flavor,
the judges frequently treated the comment as interruptive, continuing to talk
and recycling the word he or she was saying when the attorney overlapped, a
move Hutchby (2008) identified as a response that explicitly frames the others
words as interrupting (see Excerpt1.13).
Excerpt 1.14, CA, AJ-MC = Justice Chin, A-TS=Attorney Stewart
AJ-MC:That this marriage that you want is really, really important, and
the status and the intangibles? Did he just make his argument, make-
[make your argument foryou?
A-TS: [Uh Ithink he did, i-it is an area on which we agree
In addition to interrupting practices, a second discourse feature that estab-

lished the parties as appellate court judges was the absence of explicit state-
ments from attorneys evaluating a judges question as irrelevant or out-of-line.
Question evaluations, to use Sackss (1992) term, were noticeably absent. Not
only was a judges question not followed by an attorney or another judge
objecting to the content and style of the judges question, as is common in
trial settings, but attorneys did considerable discursive work to treat every ques-
tion as reasonable and relevant. In essence, the discursive work the attorneys
did was a significant indicator that judges were altercasted by attorneys as the
powerful parties. This way of responding to opinion-advancing questions is
uncommon elsewhere. In Sidnells (2010) study of a Canadian public hearing
that was investigating possible government negligence, he observed a questioned
government official to treat questions advancing critical evaluations as state-
ments. The government official did this by using preface markers (oh yeah)
that treated a question as a comment rather than a real question. Whatever the
content of a judges question, negative assessments were not expressed or were

done with great subtlety.
A third characteristic was the commonality of unmitigated disagree-
ment. In most personal and workplace settings, disagreement is a dispreferred
action done with markers that point to the delicacy of strongly worded differ-
ences (Pomerantz 1984). This was not the case in appellate court exchanges.
Disagreements and expressions of different views from what a question implied
were done straightforwardly.
Excerpt 1.15, CA, Justice Chin, AttorneyMinter

AJ-MC:Well, would you force priests, rabbi, and ministers who oppose
same-sex marriage to marry same-sex people?
A-SM:No. That principle
Excerpt 1.16, CA, Justice Kennard, AttorneyLavy

AJ-K:Mr. Lavy, if as you have uh argued to this court in response to uh
questions from the bench, if procreation is as you insist, a funda-
mental policy, uh or fundamental purpose of marriage, then the
next inquiry would be, should infertile individuals be prohibited
from entering into a marriage relationship?
A-
GL:
No, your honor, I-I would submit as the uh Standhardt uh
opinion
MINIMAL POLITENESS ASTHE FACEWORKSTYLE
The use of frame-constructing moves, lexical and speech act markers, and rela-
tional definers enacted the parties as appellate judges and attorneys doing oral
argument. To be sure, no device alone is an unambiguous marker, but when put
in each others company, these discourse practices reflect and create a distinct
genre. To put it in a face-and identity-work frame, oral argument has a style
that can be characterized as minimally polite.
If we used Brown and Levinsons (1987) politeness theory as a frame, we
might describe what occurred in these appellate exchanges as bald-on-record
talk, direct utterances that included no politeness tokens. But, bald-on-record
is not an apt description of what these judges and attorneys are doing.20 In
Brown and Levinsons theory, it is possible for a stretch of talk to evidence no
attention to politeness, but I would argue there is no such thing as a stretch
of talk evidencing no facework. Facework is going on at every moment. As
Penman (1990, 37)comments, facework is not something we do some of the
time or something we do in certain occasions. As Ive illustrated, other than
the use of polite person-referencing forms, the kinds of discourse tokens that
are the usual expressions of positive and negative politeness tokens (Brown
and Levinson 1987)were noticeably absent. Judges posed tough questions to

attorneys and responded skeptically to their assertions. Attorney answers were
rarely good enough; attorneys were pushed and probed. In everyday encoun-
ters a person would take such conduct as highly face-threatening, but there
was little sense that the judges and attorneys in these cases were framing the
situation this way. Disagreements were typically done straightforwardly with
little hedging or the other kinds of conversational work that gives attention
to others face. Face is undoubtedly important to participants, but the posi-
tive value that is wanted in oral argument is neither personal nor more than
minimally status-recognizing. Oral argument participants are inquisitors about
(the judges) or spokespersons for (the attorneys) an issue in the law. The face
that these parties work to claim is the ability to be impersonal and professional.
In contrast to the kinds of politeness and face attack moves found in many
contexts where ideas are being disputed,21 oral argument includes few of these.
Attorneys rarely preface disagreements with hedges (e.g., sort of, kind of),
downtoners (e.g., simply, possibly), or modal forms (e.g., Ithink, Iguess) that
indicate less certainty (Watts 2003). Neither do attorneys praise judges for past
actions or good questions, or attack them for asking unreasonable questions.
In a similar vein, judges refrain from complimenting answers or implying attor-
neys are morally questionable because of positions they advocate.
Judge Variation inPerformance oftheGenre
In the interviews with justices, Iasked them to describe their questioning style
and identify the differences they saw among fellow judges in questioning styles.
If they had not spontaneously commented upon it, Ialso asked them how they
saw professional and ethnicity-race-gender background affecting how judges
spoke during oral argument.
Justices spoke with ease about how professional background affected par-
ticipation. State supreme court justices come from positions as trial judges or
lower court appellate positions. They may have joined the court directly after
serving in political positions, or they may have worked as attorneys in one type
of law or another. Justices readily recognized how their previous backgrounds
shaped the way they questioned.
Excerpt 1.17(J-F)
I dont question every case. I-my background is criminal law. Ifind Iget
more engaged in the criminal cases sometimes um and Ifind-Iguess this
is more anecdotal than-Iactually uh made notes but Ifind when Im ques-
tioning in criminal law, Im more critical. Im more no, no, no its this,
this is the principle, right? And when its an area Im not that versed in
background-wise, its explain to me. Its kind of Im not understanding
the distinction. Oh workers comp, Ihate workers comp. Its always theyre
f-fighting over which form they filed at what point. So itll be, explain to
me the difference between a petition under 3315A and 2711B. Explain to
me the difference. And sometimes they can. But uh Ifind, like Isay, the
more familiar Iam with the subject, the more my question will be focused
on a single point that youre gonna have to convincemeon.
A justice who saw himself as more quiet during oral argument compared
to his colleaguessaid:
Excerpt 1.18(J-G)
Judge [name-1] is a law professor. Judge [name-2] is a law professor. They
may be more engaging than Iam, because Im-Im-Im-Im a trial judge
by training. (I: Uh-huh) and in that process Im gonna be asking fewer
questions by nature. (I:Uh-huh) Imean, thats just (I:Uh-huh) the way
you are as a trialjudge.
This judges intuition about the effect of his background has been supported
by a study of oral argument in the US Supreme Court in the 1960s and in the
2000s. Phillips and Carter (2010) found that in these two periods, justices who
had been law professors talked considerably more during oral argument than
their nonlaw professor colleagues.
Judges spoke easily about how professional backgrounds shaped their par-
ticipation, even with regard to non-ideal habits of questioning. Justice-L com-
mented, Well, sometimes Ifall back on my lawyer mode and cross-examine
them, which is terrible [I:Why?] Because you shouldnt cross-examine em you
know. Because basically Im leading them to a conclusion that Iwant to hear.
This level of comfort was not evidenced when I asked about race and, to a
lesser degree, gender.
As a white woman I found myself feeling uncomfortable when I posed
questions about the effects of race/ethnicity and gender. In the first interview
Idid with one of the African American judges, Idid not probe a very general
response he gave about the role of race in the judge-selection process because
Ifelt it would be taken as disrespectful. With white male justices Ialso stopped
pursuing the question after Ireceived several answers that treated my inquiry as
inappropriate. Consider one exchange Ihad with a white malejudge.
Excerpt 1.19(J-L)
I:What about gender and race as things that affect peoples experience?
Do you-Imean how do you see that affectingyou?
J-L:Well, Idont see it affecting me because Ihave three girls. Igrew up
in [big city] I-I-My father had a business that was in the um uh,
not-so-good areas in the city. And Iworked in those areas since Iwas
twelve years old, and Inever saw the difference between white people
and black people. And Hispanics and white people Imean-it never
affected me. And Idont think anybody in this court, Ithink-Idont
think any of those issues affect anybody in this court. Ive never heard
a derogatory term about uh a race or religion or a person, uh in this
room. Never. Ive never heard any of my fellow justices dothat.
J-Ls answer comes across as defensive (and makes the question seem accu-
satory) because he interpreted it as implying that he might be racist or sex-
ist. Justice-Ls denial that these unsaid criticisms apply to himself draw on the
disclaimer, some of my best friends are but. In addition, the non-named
action that no judge in his court does further constructs the question about
race and gender as sensitive. The sensitivities, though, were different for the
white female and black male judges than for the white male judges.
While several of the white male justices treated the question about race
and ethnicity as an inquiry about their sexism or racism, the other African
American judge treated it as a potential criticism of his judging. Judge-C
responded to the question about race, ethnicity, and gender influences, saying:
Excerpt 1.20(J-C)
Well, you know, you bring to the table everything you are. Imean theres
no question about that. But, you also try to make sure that you dont allow
that to overshadow your primary focus, so. And I think-I think most
judges do tend to do that [I:Mm-hm]. And-and do not bring to the table
the ov-the overt intention of emphasizing whatever their ethnicity or their
gender or what not happens to be. They try to rise aboveit.
J-Cs answer reveals discomfort the in two ways. First, his opening comment (yes
everything matters, but .) is in the form of a disclaimer (Hewitt and Stokes
1975), a speech act which seeks to avert likely inferences that a speaker thinks
goes with an assertion or categoryin this case, that race affects how a person
thinks. Yes it does, says J-C, but it shouldnt overshadow your primary focus.
Questioning a justice as to whether race or gender is affecting how that
judge judges is sensitive because of how persons of different races and gen-
ders have historically been treated in the United States. The question raises
a dilemma for judges, pitting the legal ideal of blind justice, a concept that
judges value, against the experiences of living as a person of a particular sex
and skin color. Asecond sign in J-Cs answer of his discomfort in talking about
race was his move to the impersonal, third person. The question had asked if
these factors affected him personally, but he responded as a spokesperson for
the category:judges, he said, do not let their ethnicity or race affect decision-
making. Just as interviewers are recommended to ask sensitive questions in the
third person (Bradburn, Sudman, and Wansink 2004), answering a question in
the third person when it was asked in the first person also marks sensitivity via
its move away from the self toward a category of person.
The dilemma raised by this race-gender question, inadvertent though it

was, is particularly well-illustrated in Justice Ds response. When Iintroduced
the topic of the effect of background, she asked Is this the Sotomayor ques-
tion? I responded awkwardly, No-Well yes. Partly. Uh both professional
background and race and gender. She went on tosay:
Excerpt 1.21(J-D)
Yeah. Okay. Well I dont look at it in terms of categories [I:Uh-huh]-race,
gender whatever. I look at it in terms-your whole life. [I:Mm-hm] Where
did you grow up? Um who-where are your parents? What was your-What-
What has been your experience in-in life? And um how have you conducted
yourself ? And I think it makes a huge difference and I think diversity on
the court for backgrounds and legal professional careers is vital.John
Roberts, when he was appointed, he uh said, Isnt this exciting, were all
the same. And I thought, Oh my gosh what is this about? You mean you
were all east coast Harvard types? Yes. Are you all law clerks for a Supreme
Court judge? Yes. Did you all sit on the court of appeals somewhere? Yes.
And I thought to myself, God help us. Because diversity of where youre
from in the world is important to represent our country. When Sotomayor
was uh before her um the committee and-and she said, Its-its a um uh
a new day where-person like myself, a Latina, could be on the court. I
know what she meant, exactly what Im saying. Its not that shes a woman
or whatever. But she comes from a place different than what is uh uh on
the court Even though shes on the Court of A-was on the Court of
Appeals, shes-came from uh nothing Not that you-Not that you all
wouldnt come to the same conclusion based on the law and the facts of every
case. But thinking it through and-and reading the facts of-You can picture
things-I mean-Therere oftentimes uh theres an address in a case that I
know that street. I know the neighborhood. I know-I know the-the-the
blue collar working people. I know what churches are around that neigh-
borhood. I get a feel of what goes on all the time over there. And I-I think
its just helpful in the processing. Not that I would uh, um have that enter
into my opinion. Its not my opinion that Im using. But I think I bring a
perspective in a discussion based on what-where I come from.
J-Ds answer reveals her struggle to put together contrary beliefs that
are part of the law. Who you are, including your race, gender, and social
class, shapes your lived experience, your perspective on issues. Justice-Ds
humorous aside about Chief Justice Roberts remark about sameness and
the lack of diversity portrays her belief that it is important for justices to
not all be one type of person. Her remark initially focuses on the more eas-
ily discussed kinds of professional differences, but as she gets into her story
about Justice Sotomayors confirmation hearing in the Senate, the tangle of
these features with the sensitivities of race, gender, and social class become
apparent. Justices know that biases should not affect their opinions; J-D
underscores this view later when she asserts that judges of any background
would base their decisions on matters of law and the facts of the case. At
the same time she acknowledges differences in background are expected to
affect justices perspectives and make justice more just. These interviews
made visible a contradiction built into the ideal of justice. As implied by the
blindfolded goddess of justice, and evident in most judges talk, the strongly
held ideal is that neither the race nor the gender of litigants or judges should
affect decisions. This norm is espoused alongside of another belief of the
consequentiality of these differences and an assumption that real justice
requires a demographically representative judiciary.22
In sum, the genre of oral argument involves a set of judges questioning
attorneys using individual styles that include some variation but not a lot.
Across the exchanges between courts and attorneys an impersonal facework
style was used by all participants. This was true in all but onecase.
The DeviantCase
The deviant case involved the attorney representing the supporters of the
Proposition 8 initiative in Californias Strauss v. Horton (2009). From the
start, this attorney occupied an unusual space. In In re Marriage Cases
(2008), there were four attorneys representing each side; in the Proposition
8 case there were five on the plaintiff s side, but only one representing the
Proposition 8 supporters. Other cases had a single attorney representing a
side, but in these cases there was usually a single opposing attorney. The
exchange that occurred between this attorney, Kenneth Starr, who defended
Proposition 8, and the other 34 attorneys who argued the cases, differed
markedly. Simply put, the joint conduct of Starr and the justices did not
adhere to the minimal politeness system that is typical in oral argument.
This attorney and the seven justices talked in ways that gave significant
attention to the positive face of self and others. Although the majority of
the discursive work was done by the attorney, it was not a solo effort. In
multiple ways the justices treated the attorneys actions as reasonable and
extended deference tohim.
DISCOURSE MOVES INTHE DEVIANTCASE
The talk during the oral argument between Starr and the justices differed in
six main ways from what was usual during the other oral arguments:(1)face-
attentive discourse tokens were present, (2)the attorney apologized for inter-
rupting, (3)justices added knowledge-recognizing phrases to their questions,
(4) the attorney criticized justices question formulations, (5) the attorney
used rhetorical questions regularly, and (6) there were shared moments
ofhumor.
Complimenting and praising another are ways of attending to positive face
wants. Such tokens display regard for the other, as one seeks to steer them in
very particular argumentative direction. At the same time, praising can imply
that the speaker is at least equal to if not superior to the person being praised.
Embedded in a lengthy answer to a question, Starr commented, This courts
opinion in the Myers case, the tobacco smokers case, you know your jurispru-
dence well in this area . Starrs comment about the justices knowing their
jurisprudence could be a compliment, or it might be heard as patronizing.
Which way it was taken (and intended) would depend on how parties under-
stand their relative statuses.
Another example is seen in Excerpt 1.22, where Starr is a responding to
a justice who asked him what the word inalienable meant in the California
constitution. In answering, he praises the Court as being a leader among US
state courts.
Excerpt 1.22, CA8, AttorneyStarr
It cannot be taken away except with the appropriate process. And one of
the inalienable rights that this court has articulated decade after decade-
This body of jurisprudence is so stable. Its so beautifully developed. Its one
of the reasons, as the court noted, that courts around the country look to this
court. And rightly so with respect to this among other bodies of jurispru-
dence. The body
The content of the compliment is not a matter about which most lawyers would
be positioned to comment. Thus, in offering the compliment about the courts
superior quality, the remark simultaneously positions the speaker as a person
of stature and expertise.
Even more striking than his praising of the court, which other attorneys
occasionally did, was Starrs references to opposing counsel as he disagreed with
them. An assistant attorney general of California was one of the lawyers repre-
senting the plaintiffs. Rather than simply referencing his argumentthe typical
moveStarr referred to him personally and also expressed his reluctance to be
disagreeing: Well, I respectfully disagree with my brother Christopher and
I dont want to be unfair to the Attorney General and his very able staffbut.
The presence of these positive face tokens called attention to themselves;
they also led the justices and the opposing attorneys to use deference-conveying
forms to address or refer to Starr. In the other eight cases, the forms of address
that the justices used for attorneys were either Mr./Ms. last name or Counsel.
But fives times by four different justices, Starr was addressed as Dean Starr,
therein recognizing an external status. In addition, during the rebuttal, one of
the plaintiff attorneys referred to Starr as my esteemed colleague.
A particularly subtle way that justices could attend to an attorneys posi-

tive face was to connect back to a comment that a person had made by men-
tioning his or her name. In mentioning the name of the person who raised
an issue, a small compliment is paid by implying the worthiness of the issue
raised. This practice was a rare event during most oral argument. By far the
more common ways justices built connections to an attorneys prior utterances
was either to summarize the content of an attorneys argument or to use a role
reference (e.g., opposing counsel argued, the other side said). These latter
two strategies are impersonal ones, therein supporting an impersonal face for
participants. Name use, in contrast, is a small personalizingmove.
During the rebuttal phase of the hearing, occurring immediately after Starr
spoke, three of the petitioning attorneys had five additional minutes apiece. In
these minutes, which included 25 questioning turns, four of five justices who
asked questions and two of the three attorneys mentioned Starr by name, for
a total of 13 times. The justice who used his name most often had a question
where she referred to him by name four differenttimes.
Excerpt 1.23, CA8, Justice Kennard to Mr.Maroka
You were the only attorney who said that uh you would be arguing retro-
activity and as Iarticulated earlier, Iwas surprised that only you would do
that. In my view it is a very important issue, hence this question. Iuh asked
several questions of Mr. Starr on that issue and um you may recall that at
one point Iasked Mr. Starr, if we were to agree with you, would there be
a violation of um the contract clause or the due process clause of the fed-
eral constitution and as Irecall, Mr. Starr quickly responded, no, he saw
no problem, after all, there is the uh doctrine or theory or whatever one
wants to call it pertaining to putative spouses, or the availability of domestic
partnership. Now from your standpart-point, if we were to agree with Mr.
Starr that the marriages that were performed before the voters enactment
of Proposition 8, do you see a problem with the contract clause?
In contrast, in the rebuttal period in the In re Marriage Cases that had two
attorneys speaking for 14 questioning turns, there was but a single reference
by name to any responding attorney. Of note, the name usage in this context
functioned more as a subtle criticism than as a compliment. In addition, in the
other cases where a single attorney represented a side, name references were not
commonlyused.
Finally, in launching into disagreements with the justices Starr frequently
marked his actions as sensitive: Your honor if I may Im going to be very
direct, I respectfully disagree, Your honor if Imay respectfully disagree.
In prefacing remarks with references to his respectful disagreement, Starr
makes visible that there are persons involved in the disagreement, and that hurt
feelings were a possibility.
Justices interrupting an attorney were commonplace occurrences in oral

argument. Most of the time, an attorney stopped speaking either immediately
or within a few words of when a justice began speaking. On rare occasions,
the justices would self-label their talk as interruptive. In the In re Marriage
Cases, justice self-labeling occurred twice; Excerpt 1.24 illustrates one of these
moments:
Excerpt 1.24, CA, Justice Kennard
And Im interrupting because you may be running out of time, so please
forgive me-but uh in light of your answer
The 13 attorneys in the California cases accepted interruptions and did not
comment. This was not the case with Starr. In the Proposition 8 case, justices
marked four times that they were interrupting with Starr. But more noticeable
than the slightly higher rate of marking was Starrs response. On two occa-
sions, Starr reciprocated the apology with an apology of his own. Excerpt 1.25
illustrates one reciprocal apology with the same justice as we saw in Excerpt
1.24 (see arrows). In addition to reciprocating a justices apology for interrup-
tion, Starr also initiated apologies (six times) for his overlapping, an example
of which is illustrated in his first utterance of Excerpt1.25.
Excerpt 1.25, CA8, Justice Kennard and AttorneyStarr
A-S:
the right to life is in fact foundational, the death penalty becomes
unconstitutional. [And uh-sorry
J-K: [And Ipromise I-one last question-Im sorry
for interrupting But [Im afraid youmay=
A-S: [Uh my apologies.
J-K:=be running out of uh time but you just uttered a term that perked
my interest.
In apologizing where other attorneys did not, Starr called attention to his
actions as being interruptive of the justices. This move foregrounded them as
persons with face needs that deserved to be acknowledged, rather than rein-
forcing the scene as an impersonal one. In addition, these small actions por-
trayed the exchange as one where both parties were equally situated, having
responsibility to acknowledge when they were stepping on each others turns at
talk. Unlike apologies for other actions (Olshtain 1989)where the apologizer is
often lower in status than the person to whom the apology is directed, apologies
for interrupting carry a different meaning, supporting the graciousness of the
speaker and framing him or her as equal or superior to theother.
Questions have the potential to imply that their recipient may not know
what is being asked. If in fact a recipient is unlikely to know information, then
a questioners addition of a preface such as, you may not have thought about
this yet but can soften the face-threat of not being able to answer. At the
same time, adding a preface such as this implies that the recipient is regarded
by a speaker as someone who may not have the answer. Another kind of face-
threat that the posing of a question can do is to imply that the question-asker,
him-or herself, has limited understanding. The posing of questions inescap-
ably carries a package of face-threat potential for askers, recipients, or both.
In institutional contexts, such as academic discussions, participants regularly
add disclaimers that seek to address what they take to be the most likely dan-
ger (Tracy 1997). One of the ways appellate court participants defined oral
argument as an impersonal activity was by the justices not marking questions
as having any insult potential and by attorneys not showing affront to what a
question mightimply.
With Starr, though, some justices built knowledge-recognizing moves into
their questions. Excerpts 1.26 and 1.27 are examples of a justice explicitly rec-
ognizing the potential face implications of a question.
Excerpt 1.26, CA8, Justice Werdegar
[So Mr. Starr given you-given your response, does your argument here,
and I think the answers going to be no, depend on uh the theory thats been
advanced that Prop 8 only affected the nomenclature of the relationship
between gays um as opposed to taking away domestic partnership rights.
Excerpt 1.27, CA8, Justice Werdegar
[I think thats true, Idont even think its in dispute, and its a wonderful
uh attribute of our government. Id like you to address what Iknow youre
going to. Why is what transpired here an amendment which the people have
that right to do
Some justices questions could be judged as tilted or biased. In responding

to such questions, attorneys typically engaged the question without comment-
ing on its packaging. Starr diverged from this pattern. On several occasions he
implied or explicitly labeled the wording of a justices question as problematic.
Twice, for instance, he asserted his intention not to quibble, thereby implying
that he saw the language of a question as not capturing distinctions that ought
to have beenmade.
Excerpt 1.28, CA8, AttorneyStarr
Line 1947 Yes, and again uh uh uh Im not trying to quibble, but
Line 2547:Quite true, but because, and again Idont mean to be quibbling
In addition, at one point he explicitly exposed the evaluative tilt of a justices

wording of a question about what should happen to the same-sex couples who
had already married.
Excerpt 1.29, CA8, Justice Chin, AttorneyStarr

J-C:[But-but Mr. Starr, is that really fair to the people that depended
on what this court said was the law? Upended their lives. Changed
their property responsibilities with their spouses. Um is it really fair
to throw thatout?
A-S:Your- your honor, first of all I would quarrel with, quote, throwing
it out, our position is more, if I may say so, specific with respect to
that
Rhetorical questions occur in other legal genres, such as law school teach-
ing (Mertz 2007)and attorneys closing arguments to juries, but they were rare
in this set of state supreme court oral arguments.23 The uses and meanings of
rhetorical questions vary with their context. In public speeches to elected offi-
cials, Tracy and Durfy (2007) found rhetorical questions to function as critical
commentaries on officials actions. In closing arguments in a trial, rhetorical
questions are used to engage jury members (Pascual 2006). Neither function
is common in oral argument:attorneys have good reasons not to be critical of
justices. In addition, as the situation is one of give-and-take questioning, there
is little need for attorneys to build engagement the way they might need to
in monologic genres. In the California cases, for instance, justices asked ques-
tions at a rate of 79.2 (In re Marriage Cases) and 80.1 (Proposition 8)questions
perhour.
Perhaps the context in which rhetorical questions are most common is the
classroom. Teachers use rhetorical questions in lectures to not only engage stu-
dents but to give them information. In packaging information into a rhetorical
question, a speaker implies that what is being said is known to the listener and
would be obvious, even should it not be. By virtue of the strong association
with the classroom domain, repeated use of rhetorical questions implicitly calls
up a teacher-student relationship between the user and the spoken-to party.
Starrs use of this device so regularly in his responses invoked a classroom con-
text and himself as the lecturer.
An issue in the Proposition 8 case concerned whether the constitutional
change approved by the voters should be seen as an amendment (acceptable) or
a revision, which could not be accomplished by a majority vote through a ballot
initiative. Ajustice had asserted that determining how the proposition impacted
gay and lesbian citizens was not relevant to that issue. Starr responded.
Excerpt 1.30, CA8, Attorney Starr addressing Justice Werdegar
A-S:Youre right, suffic-uh your honor su-sufficient to this day is focus-
ing on the issue before us. My theory that we have articulated in our
briefs, is the theory embraced by this court. Were asking you simply
to stay the jurisprudential course, not to chart a new course. To say
well heretofore we have only determined there was a revision when
there was in fact a far-reaching-Or this court has also uses this twice-
sweeping change in the structure of government. Structure, now why
is it that? That takes us back to Livermore v.Waite, when the legisla-
ture was trying to move the capital from Sacramento to San Jose and
we had these essays that our brothers and sisters from the other side
quote very generously from, and rightly so. Aconstitution is indeed
a permanent and enduring document and there are underlying prin-
ciples. And what are those underlying principles? We now know thanks
to Amador, thanks to case after case after case that justice after justice
has signed his or her name to, it has to do with the structure of gov-
ernment and [separati-
J-
W:
[and heretofore, Mr. Starr
Starrs frequent use of rhetorical questions invoked a relational frame at odds

with what was enacted by other attorneys speaking about this person-rightsissue.
Moments of humor in which multiple people in the courtroom laughed were
not common during oral argument, occurring not at all to less than four times
an hour across the eight cases. When they did occur, they were usually about
matters related to the process of oral argumenta very tall attorneys need to
adjust the microphone, a justice posing a first question before an attorney had
finished one sentenceor involved wry comments by justices about something
in their experience, as one justice commented that a case had occurred even
before he was born. Moreover, justices were the initiators of what humor did
occur, not attorneys. In the oral argument between Starr and the justices, there
were two moments in which Starr was a collaborator in creating thehumor.
In the Prop 8 case the court had two decisions to make. The first issue
concerned whether the Prop 8 ballot initiative to change the constitution to
define marriage as restricted to one man and one woman was legal. If Prop
8 was upheld as a legal constitutional change, a second issue concerned the
status of the marriages between same-sex partners that had been performed
in the six months after the passage of In re Marriage Cases. Following an
extended exchange about whether Proposition 8 invalidated the marriages that
had occurred following the Courts first ruling, which Starr was arguing should
be the case, he made a self-deprecatory, laughter-eliciting comment. He com-
mented, I-Isee that my argument has been very persuasive in this particular
point. This wry remark can be read as a small gracious gesture. It is, how-
ever, the gesture of a person who has won the war and lost but a small battle.
Whether marriages occurring after the passage of Proposition 8 remained legal
was only an issue if Proposition 8 was likely to be supported as constitutional,
invalidating all further marriages.
At an earlier point, the following multi-turn humorous moment occurred.
In the first instance of laughter, the humor rested on both parties orienting to
Starrs extra-situational role as dean of a law school. In the next two instances,
Starr treated a pair of yes-no questions literally, as if yes-no answers were what
were sought. By stopping himself from immediately amplifying and seeking
permission, he called attention to the difference between what was asked for
in the justices question and how the question, presumably, was intended to be
taken. His explicit permission-asking came across as humorous because oral
argument is all about offering reasons for assertions, not just providing yes-no
answers to questions.
Excerpt 1.31, CA8, JusticeChin
J-CMr. Starr, can I ask you another question about the power of this
court? Uh about two hours ago, I asked a question of Mr. Maroko
and I dont expect you to remember it, but you might because it involved
a proposition that was set forward by two of your employees. Two pro-
fessors from your law school uh suggested-uh one in favor of Prop
8 because of civil rights reasons, one opposed to Prop 8 because of
religious reasons. Do you have that question in mind or would you like
me to repeat it?
A-S:Would you mind repeating it just to be sure? Idid perkup.
((laughter))
A-S:
The-the-the-when Iheard professors. Usually you dont hear profes-
sors referred to in colloquy, so Iwelcomed it [so-Ibeg your pardon.
J-C: [the- the-the professors
suggest that marriage is-has a religious origin. And they suggest the
solution to the problem is that we direct the state to employ non-
marriage language to all couples and that it be called a civil union and
that essentially the state get out of the marriage business. Number
one, does that solve the problem, and number two, is that the province
of thiscourt?
A-S:Yes, and no. It does solve the problem becau-may Ielaborateit?
((laughter))
J-C:
You dont haveto.
((laughter))
A-S: I would like to, ifImay.
In collaborating to create a moment of humor, an activity rarely seen in oral

argument, Starr positioned himself as not typical.
INTERPRETING THEDEVIANTCASE
Kenneth Starr acted and was treated differently than the other 34 attorneys who
represented either the petitioners or respondents in the eight marriage cases. He
drew attention to himself, the justices, and opposing counsel as persons; his
talk and the justices responses to him altered the definition of this courtroom
activity from its minimal politeness frame. Why might this have happened?
Starr is not the typical litigator who appears in state supreme courts. He
is a person of national reputation. He had previously served as a justice on the
US Court of Appeals in Washington, DC, a position many see as higher status
than a state supreme court justice. Starr was also the Independent Counsel
who investigated Whitewater and President Clintons extramarital affair with
Monica Lewinsky, and he served as the United States Solicitor General from
1989 to 1993 under President Bush. The Solicitor General has the responsibil-
ity of representing the US government in any cases that go to the US Supreme
Court, a role that Caplan (1987) describes as being of equal stature to a tenth
justice on the US Supreme Court. At the time he represented Proposition 8
respondents in Californias Supreme Court, Starr was dean of Pepperdine Law
School.24
In sum, Kenneth Starr was a visible public figure, a considerably more
prestigious attorney than usually appeared in state supreme courts. Given the
prior judicial and government positions he had occupied, he could easily be
regarded as having higher status in the legal community than the justices to
whom he spoke. Starrs external status, I would suggest, problematized the
taken-for-granted definition of the situation. In participating in oral argument
Starr did significant interactional work to create a face for himself that was not
ordinary attorney adhering to the rules. Rather, his talk used a host of subtle
discourse devices to claim an extraordinary competence and status. Through
the ways they responded to him, the justices, in turn, affirmed the reasonable-
ness of these claims.
Oral argument in state supreme courts typically involves a system of mini-
mal politeness in which justices and attorneys work to maintain an impersonal
face for self and others. This facework system is accomplished through the par-
ties doing significant conversational work, both adding linguistic tokens to their
talk that do not occur in other settings and refraining from speech actions that
are common elsewhere. The malleable character of facework systems becomes
visible when a focal participants external identities differ from what is usually
the case. Under such circumstances, as we saw with Starr, a facework system
can be transformed to a very different one than usually operates.
2
Naming ofLitigants
Speech in its essence is not neutral. Far from aiming at suspended judgment,
the spontaneous speech of a people is loaded with judgments. It is intensely
moralits names for objects contain the moral overtones which give us the
cues as to how we should act toward these objects. (Burke 1954, 176177)
Legal pleaders cultivate a wealth of techniques for conveying meanings that they
do not appear to be pleading, or even intending to convey. For everybodys
sake, the language game in the law has got to be played in a way that substitutes
lots of imprecise and deniable implicatures for precise propositional assertions
while seeming not to. (Amsterdam and Bruner 2000, 175176)
Kenneth Burke (1954) coined the term weighted words to describe the
power of small words to convey strong evaluations about what is right or
wrong, whether such evaluation is reasonable or not. In this chapter Iexam-
ine the weighted words of person-referencing terms in oral argument in the
three earliest marriage cases, contrasting them with even earlier US Supreme
Court cases about gay rights and with several types of public discourse. In the
chapters first section, Ireview scholarly work on stance-taking and suggest
why person-referencing is an important part of this activity during oral argu-
ment. Combining discourse analysis with simple quantitative coding, Ishow
that attorneys and judges choices of terms for gay parties in the first three
marriage cases (i.e., NewYork, New Jersey, Washington), as well as the fre-
quency of use of these terms, marked the stance of appellate parties toward
same-sex marriage. Ithen describe how person-referencing of gay persons has
changed across time and make the case for what these changes signify.
Stance-Taking and Person-Referencing
Stance involves speakers interactional displays of evaluation. Biber and

Finegan (1989) distinguish two kinds:epistemic stance, which focuses on the 43
relative certainty or doubt speakers have about what they are expressing1; and
affective stance, which concerns a communicators evaluation of a person, an
issue, or an event. Studies of stance have tended to explicate the meanings of
particular categories of linguistic and nonverbal devices (Besnier 1990; Ochs
and Schieffelin 1989). In this chapter I unpack the stance-cuing power of
person-referencing terms that are used by judges and attorneys to refer to the
gay parties.
The context of oral argument provides an obvious way to assign intentions
and goals to participants. Attorneys for plaintiffs, the ones seeking to legalize
marriage between same-sex couples, can be presumed to have the most positive
stance toward same-sex marriage. Attorneys defending state agenciesparties
seeking to continue existing marriage laws and deny gay parties the right to
marrycan be assumed to be more negative. Judges are likely to vary, but if
we conceive of a courts judges as a collective decision-making unit, then we
can anchor stance in their after-the-fact court opinions. Did the court deny or
extend rights to the gay parties?
Oral argument is a highly conventionalized speech genre. In such genres
the discourse moves that can and do indicate stance are constrained. At the
same time, Jaffe (2009, 21)argues, the narrowing of space for individual
maneuver can invest even finer linguistic or sociolinguistic distinctions with
significance for personal stance. In these appellate exchanges the choice
among terms of reference is one such fine sociolinguistic distinction that
conveys stance.
Even the most time-worn categories in the law, assert Amsterdam and
Bruner (2000, 282), grow from tangled roots nourished by everyday habits
of mind and heart. Of those everyday habits, a particularly ubiquitous one
is the usage of everyday words and phrases to designate and describe persons,
whether the persons are the self, conversational partners, identifiable third par-
ties, or abstracted categories of others. To address a person, speakers typically
choose among titles, kinship or occupational terms, pronouns, or forms of
a name (family (last), personal (first), or nickname). As has been well estab-
lished, the choices a speaker makes will have consequences. In languages that
have multiple forms of you, the pronominal choice cues the speakers under-
stood formality-informality of the relationship, as well as other subtle stance
features. Whether conversational partners reciprocateboth use first names
or last names plus titleor use different forms cues the perceived equality, or
lack thereof, among participants. In the appellate proceedings, as Ievidenced
in Chapter 1, the predominant forms of address were occupational titles
(Your Honor and Counselor), or titles plus last names (Ms. Navotny
and Judge Smith).
Speakers also must select terms to refer to themselves. This is done differ-
ently in a first turn than in subsequent ones. In initial turns in public occasions
Naming of Litigants 45
where one party is addressing a collective body, a full name and a role or cat-
egory description is the most common forms of self-identification.2 Following
an opening mention of a name, though, speakers use predominantly individual
(I/my) and collective pronouns (we/our) to refer to self. Collective pronouns are
commonly used by speakers to mark that they are speaking for an institution or
an ideological commitment rather than simply for themselves. Schegloff (1996)
argues that some forms of reference, for example she or I, are doing only
reference, carrying no evaluation. Certain reference terms are, in his words,
reference simpliciter. But, while it is plausible that reference forms vary in
the degree of moral loading they carryfrom almost none to quite a bitit is
questionable that even simple pronominal reference forms are entirely devoid
of evaluative significance. Haspel and Tracy (2007), for instance, showed how
two citizens use of I and we in speeches to their community school board
were used to manage affiliation and distance, where we occurred to soften the
most aggressive criticisms of others handling of racial issues.
In addition to self and partner references, which are the most frequent
kind of reference in ordinary conversations (Lerner and Kitzinger 2007), are
the references to/descriptions of third parties. The ways third parties are ref-
erenced include many of the moves we saw used for self and conversational
partners, such as names, titles (Judge to attorney:Earlier Iasked Mr. Starr
[another attorney] ) and pronouns, but such referencing also makes sig-
nificant use of membership terms or descriptions of person activities and
attributes, each of which may be done alone or in the company of theother.
The power of person references to convey evaluative stances was initially
highlighted by Harvey Sacks in his influential lectures in the late 1960s and
early 70s (Sacks 1992; Schegloff 2007). The group-level labels that describe
persons in terms of demographic, professional, or other social categories,
Sacks referred to as membership category terms. Sacks saw these terms as
being part of a conversational apparatus, the membership categorization
device (MCD) which included an abstract category of personsfamily was
one of his examplesand their members (in the family case, husband, wife,
child), category-bound activities (e.g., crying, comforting), and a set of rules
of application (the economy and consistency rules, the hearers maxim) which
account for why people make the inferences they do when they hear these
terms in talk or writing. In his much-cited example, The baby cried. The
mommy picked it up, Sacks showed how the category, its member terms,
and rules of application explained why listeners would assume the mommy
referred to was the babys mommy rather than some othermommy.
The MCD explains a myriad of inferences that people regularly draw; it
accounts for inferred evaluations that go well beyond what speakers explicitly
say. Membership terms, as Sacks put it, are inference-rich, implying whether a
members actions are appropriate (or not). Very different work, for example,
is accomplished by referring to the crying party as a baby versus a male or a

boy, both of which might also be true. Subsequent researchers elaborated and
extended Sackss initial insight (Francis and Hester 2004; Hester and Eglin 1992,
1997). These scholars argued that the inference-rich properties of membership
category terms extend to other categories, such as people types, e.g., sleazy per-
son, average Joe, upstanding citizen (Jayyusi 1991, 1993), and to other kinds
of linkages. In addition to categories making (un)reasonable a persons doing
of certain activities, categories also make (un)reasonable for particular mem-
bers rights, expectations, obligations, knowledge, attributes, and competen-
cies (Hester and Eglin 1992, 122).3 As Hester and Eglin (1997, 8)commented,
the category-related features of motives become available for interactants
for the moral work of justifying and excusing actionsall this being done
through the use of categories for describing persons. Just such subtle moral
work occurs as attorneys and judges argue about the constitutionality of a par-
ticular state law, all the while making (or avoiding) references to focal parties.4
In addition to the terms used to refer to categories of other is the overall
frequency with which person terms are used at all. To refer more frequently
to people and their needs rather than government concerns when a legal issue
pits persons against the state is one way speakers show sympathy to persons.
This principle was evidenced in a study by Amsterdam and Bruner (2000) in
which they analyzed the written opinions in three US Supreme Court cases
involving segregation in rail travel (Prigg v. Pennsylvania 1842) and in schools
(Brown v. Board of Education 1954; Freeman v. Pitts 1992). In this study,
Amsterdam and Bruner identified the frequency of nouns referring to key
parties in each court opinion. They distinguished those nouns that referenced
the interests of black persons, white persons, or persons with no race speci-
fied, from those that referenced the interests of the government or state. What
kind of noun was used more frequently, they argued, indicated which partys
view of the situation was being given weight. Their results showed that in
the Brown case, where segregation was judged illegal and harmful to African
Americans, references to persons were roughly equal to those made to the
government; but in the other two cases, both of which upheld segregation,
references to the government occurred from 1.5 to 2.5 times more often than
those made to persons. Amsterdam and Bruners study focused on written
discourse, but the reasoning principle they used is equally applicable to study
of oral argument. More rather than less frequent reference to persons is a way
of cuing that person consideration is an important part of a decision.
The Three EarlyCases
The cases that are the focus of this analysis are (1)Hernandez v.Robles (2006)
in NewYork, (2)Lewis v.Harris (2006) in New Jersey, and (3)Andersen v.King
TABLE2.1
Decision Profiles ofthe Three EarliestCases
NewYork New Jersey Washington
Hearing 6 Justices heard the case 7 Justices 9 Justices

Participants 1 was recused
7 Attorneys 2 Attorneys 5 Attorneys
4 Plaintiff 1 Plaintiff 3 Plaintiff
3 Defense 1 Defense 2 Defense
Gist of court Prohibiting same-sex Same-sex couples Washingtons 1998
opinion marriage is not a violation deserve the civil rights DOMA (Defense of
of constitutional rights; of marriage extended to Marriage Act) is legal
same-sex marriage is an opposite-sex couples; and therefore the state
issue to be decided by the whether the relationship has the right to limit
legislature. should be called marriage marriage to same-sex
is up to the legislature. couples.
Rights for Withheld Extended Withheld
gays &
lesbians
County (2006) in Washington. In each of the cases, same-sex couples went to

their local courthouses seeking marriage licenses. When the parties were denied
licenses, the same-sex couples became plaintiffs in civil trials against various
state agencies (the defending parties), charging the agencies with unfairly deny-
ing them the right to marry. In one of the state supreme courts, the appellant
was the set of state agencies that a lower court had ruled had acted illegally
in denying the same-sex couples marriage licenses; in the other two cases, the
plaintiffs were the appealing parties. As appellants, they were challenging the
constitutionality of the lower courts actions upholding the state law restricting
marriage to opposite-sex parties. Table 2.1 profiles the outcome in each of the
three cases and provides information about participants.
Naming Practices Used intheCourts
References to the plaintiff parties were accomplished using terms that pointed
to them as individuals, sets of individuals, or categories of persons, uniquely
or as an affected type of person. Of note, personal name references were rare.
Particular people were the plaintiffs, but these individual persons were of con-
sequence because they were representatives of a category of person.5 Thus,
many speakers never referred to the plaintiffs by name. When specific name
mentions did occur, these mentions were in the opening moments of a plaintiff
attorneys comments before judges began questioning. For instance, the third
attorney speaking for the plaintiffs in the New York case, after introducing
himself, said, And Im going to ask you to please come down to the surface of
NewYork state with me and-and permit me to discuss the human aspect of our
current state of law as it affects my clients:Bob and George, Elissa and Lynn.6
In ordinary conversation, Schegloff (1996) has shown that parties will be
referred to differently in the first mention than in subsequent ones. To a certain
degree this was true in these appellate court proceedings, but there was a twist.
In appellate talk, in contrast to ordinary conversation, the interactional scene
has a well-defined topical and person focus. All parties come to the exchanges
knowing who and what are the foci. The upshot of this clearly marked frame is
that a reference to the focal parties by name, rather than membership terms (the
plaintiffs, same-sex couples), is a strategic choice, not a necessity to make clear
who a speaker is referencing, as is the case in ordinary conversation.
To provide a sense of the most common ways plaintiffs were referred to during
oral argument, consider a remark from each of the three categories of speakers (a
plaintiff attorney, a defense attorney, and a judge) in the New Jersey court (person
references to plaintiffs are in boldface; those to other persons are in italics).
Excerpt 2.1, NJ, Plaintiff Attorney Opening
It is undisputed on the record before this court that the plaintiffs interests
are the same as those of heterosexuals who would seek to choose to marry.
Theres really no difference. And there is no dispute that the same-sex
couples and different-sex couples have the same interests.
Excerpt 2.2, NJ, Defending State Attorney Opening
Your Honors, the defendants do not come today to offer an opinion on
the commitment that plaintiffs have to one another. Or the depth of their
relationship. Nors it-do the defendants-On whether extending marriage
rights to same-sex couples would be a wise thing to do. Because the ques-
tion before the court is not whether extending marriage rights to same-sex
couples would be fair, or just, or good. The questions before this court
are legal in nature. And the questions are whether the state constitution
requires as a matter of constitutional mandate that the long held definition
of marriage be changed to allow same-sex couples tomarry.
Excerpt 2.3, NJ, Justice Question
Mr-Mr. Buckel [plaintiff attorney] if the legislature passed a law that pro-
vided same-sex couples every right that straight couples have except the civil
sacrament of marriage, would you still argue before us today?
Gay plaintiffs were referred to in many different ways, with two kinds of
references being especially prevalent. Parties were referred to in terms of their
sexual orientation where the terms used to identify the category were some ver-
sion of gay and/or lesbian, homosexual, or same-sex couples.7 Parties
were also referred to in terms of their courtroom role, the plaintiffs. In addi-
tion to these two primary ways of referencing parties, there was a diverse set of
infrequently used, relatively uniqueterms.
To determine if there were patterns in how speakers (plaintiff attorneys,

defending state attorneys, judges) and courts (NJ, NY, WA) were using terms,
Icounted the number of terms used by each party in three categories:sexual-
orientation terms, courtroom role terms, and any other form of person refer-
ences.8 In addition, Idistinguished among sexual-orientation terms since the
evaluative loading of terms differgay and lesbian terms are preferred over
homosexual by most persons self-identifying asgay.9
The issue of the constitutionality of a states marriage laws brings together
(1)persons, (2)events (e.g., marriage, state laws), and (3)legal principles (e.g.,
equality, due process). References to the plaintiffs in appellate talk, whatever
name was used for the parties, is a strategy for personalizing the law and fore-
grounding its effects on actual people. In politeness theory, Brown and Levinson
(1987) identified impersonalizationframing negative news as caused by a prin-
ciple or ruleas a strategy that speakers use to minimize threats to a recipients
autonomy. To reframe their finding, Iwould suggest that speaking in a way that
gives a greater person-focus to an issue is a way to argue for a positive decision
for that type of person. The reverse is also true; a less person-focused framing
legitimizes a more negative decision toward the person or category of persons.
A first issue, then, concerned whether the frequency of person-references
related to speakers courtroom roles and to the direction of each courts deci-
sion. In terms of court roles, attorneys for the plaintiffs were expected to use
person-referencing terms most often. Compared to the defending state attor-
neys or the justices, it is their job to highlight their clients personhood. Plaintiff
attorneys, in fact, used an average of 8.15 terms per 1,000 words compared to
judges (4.15) and the defending state attorneys (6.43). See Table 2.2. In addition,
the court that extended marriage rights to gay citizens (NJ) was expected to use
person terms more frequently than the courts that made no changes to their
marriage laws (NY, WA). Findings reflected this logic. The New Jersey courts
decision was the most positive of the three, and it used person-referencing terms
more often (10.52) than the others (NewYork 4.86; Washington 3.35).10
When person references were made to the plaintiffs, the main category
used across all courtroom roles was for speakers to use sexual-orientation terms
TABLE2.2
Frequency ofPerson-Referencing Terms by1000Words
State Plaintiff
Attorneys Attorneys Judges Ave.
NJ 14.20 11.59 5.77 10.52

NY 2.54 7.84 4.24 4.87
WA 2.56 5.02 2.45 3.35
Ave. 6.43 8.15 4.15
(59%). There were interesting differences, however, in distributions across the

three categories. As Table 2.3 makes visible, plaintiff attorneys used a lower
percentage of sexual-orientation terms than the other two parties. Plaintiff
attorneys used more alternative terms or the word plaintiff than did the
judges or the defense attorneys.11 In labeling the plaintiffs more frequently
with other person terms, rather than restricting references to sexual-orientation
terms, the plaintiffs standing as just people was built. By using a variety of
other person-referencing terms, the plaintiffs attorneys made visible the mul-
tiple dimensions of personhood of their clients. An index of sexual-orientation
terms relative to the total number of person-referencing terms was created.
As inspection of Table 2.4 shows, across the three courts, the plaintiff attor-
neys used a smaller percentage (39%) of sexual-orientation terms relative to
other forms of reference than the judges (76%) and defense attorneys (69%).
Comparisons by court show a similar pattern. In the New Jersey court (49%),
which made the most positive decision, sexual-orientation terms were used less
frequently than plaintiff or alternative terms; in NewYork, it was 76% and in
Washington,59%.
Sexual-orientation terms took a number of forms and Table 2.5 portrays
that variety. When parties were referred to using other terms than by their court
role or sexual orientation, the terms used were of three main kinds:(a)by sex
and/or number of people, (b)personal names, and (c)citizen-linked references.
Table 2.6 portrays the variety within each of these three categories, as well as
the small set of miscellaneous additionalterms.
TABLE2.3
Percentage ofPerson-Referencing Terms byCategory andRole
State Plaintiff
Attorneys Attorneys Judges Total
Sex-O 68% 44% 76% 177

Plaintiff 32% 31% 15% 87
Alternative 0% 25% 08% 46
Total 88 163 59
TABLE2.4
Percentage ofSexual-Orientation Terms Relative toTotalTerms
State Plaintiff
Attorneys Attorneys Judges Total
NJ 61% 18% 67% 49%

NY 88% 59% 83% 76%
WA 58% 40% 80% 59%
Ave. 69% 39% 76%
TABLE2.5
Forms ofSexual-OrientationTerms
Gay-Lesbian Terms
Gays; gay couple; gay people; gaymen
Lesbians; lesbian couples; gay and lesbians; gay or lesbian people; gay and lesbian couples;
gay and lesbian community; lesbian and gay adults; lesbian and gay people; lesbian and gay
individuals
Same-Sex Terms
Same-sex couples; same-sex partners; same-sex parents; same-sex families; same-sex couples
and their families; same-sex single people; people of same-sex
Homosexual Terms
Homosexuals; homosexual couples; homosexual people; homosexual single people
TABLE2.6
Unique Terms byKind
Sex and/or Number of Persons

Female couple; Female client; Male couple; Men who want to marrymen
Two individuals of the same-sex who applied for a marriage license; Two men and two women;
Two men who were domestic partners; Two mothers or two fathers; Two women; Two people who
love each other; Woman whos otherwise qualified to marry; Women who want to marry women;
thirty-eight individuals present in court today; a couple; (those) couples; those 456,000 families
Personal Name
Bob and George and Elissa and Lynn; Plaintiff Cindy Magnum; Plaintiff Karen Nicholson
McFadden; Plaintiff Laura Abrams and Dana Friedman Tweed; Plaintiffs Ann Bell and partner
Elizabeth Lindsay
Citizen-Linked
Second-class citizens; All NewYorkers without regard to their sexual orientation; all NewYork
citizens; Those denied protection for their families; (these) unequal citizens; all citizens; a class
of citizens and their children; states families and all our states children
Miscellaneous
the group of individuals; the group given the separate status; the parent; the excluded class;
my clients; person with whom youve brought children into the world with whom youre parenting;
a burdened group; those families; unmarried people
The most frequent alternative way to refer to gay plaintiffs was by gender
and/or number of people (e.g., female couple, two people who). Describing
the number of people and/or the sex of a referred-to person is a discursive
move to normalize. Referring to persons simply by the number of them who are
affected, or by mentioning their sex, is a discourse strategy that treats sexual ori-
entation asdrawing upon Grices (1975) conversational principleirrelevant
information, excessive and not needed for the decision at hand. Describing
the sex or the number of person affected is to put gay plaintiffs in the same
category with other persons who have basic needs and rights. In addition, by
describing plaintiffs as possessing socially typical goals (e.g., Individuals wish-
ing to marry loved person), the attorneys built the character of the plain-
tiffs as people who had ordinary wants and deserved the same rights as other
people. Furthermore, the references to the plaintiffs being treated as second-

class citizens underscored the unfairness of their treatment and that they were
being denied a right that they shouldhave.
Besides using this broad array of alternative, identity-enhancing terms more
frequently, plaintiff attorneys differed from the defense attorneys and the judges
in the selection of the sexual-orientation terms they chose. We know that gay-
lesbian terms are preferred by members and that homosexual is a more nega-
tively valenced term. If these terms cue stance, then we would expect courtroom
participants to have different profiles of use. Table 2.7 shows this to be the case.
Although all parties used the neutral same-sex terms most often overall (57%),
usage of gay/lesbian terms differed by role. Plaintiff attorneys used 45% of the
gay-lesbian reference terms compared to 30% by judges and 25% by the defense.
In looking at terms simply by role, however, we miss subtleties of use.
Examining one of the two uses of homosexual by a plaintiff attorney evidences
even more strongly that these attorneys were working to avoid using the word
homosexual. In the NewYork court, a plaintiff attorney responded to a jus-
tices question about the reasonableness of the state preferring opposite-sex
over same-sex parents. The attorneysaid:
Excerpt 2.4, NY, Plaintiff
Well Ithink the Jacob and Dana case does say that any desire to preference
heterosexual families over homosexuals families-er gay families would be
inappropriate.
In the attorneys answer, she identified heterosexual families as the first member
of a collectionfamilies divided by sexual orientation types. In marking one
TABLE2.7
Use ofSexual-Orientation Terms byRole andCourt
By Court Role
Plaintiff Defense Judge Total
Gay-Lesbian 35% 26% 38% 56

Same-Sex 63% 69% 36% 98
Homosexual 3% 6% 27% 17
Total 72 54 45
By State Court
NJ NY WA Total
Gay-Lesbian 29% 31% 48% 56
Same-Sex 67% 65% 8% 98
Homosexual 4% 4% 44% 17
Total 51 95 25
kind of family as heterosexual, information that is often left unmarked, the

attorney is implicitly making a small political point: families come in kinds,
heterosexual and homosexual. At the same time, in choosing heterosexual as
her first modifier, she sets herself up for an interactional moment of trouble. If
we assume plaintiff attorneys were consciously avoiding using the term homo-
sexual but that Sackss membership categorization rule appliesi.e., refer to
subsequent members using the same collection category of the first named
partythen homosexual families is the obvious term for the family type that
contrasts with heterosexual. That the attorney quickly repairs to gay after
uttering homosexual, suggests just such a process is atwork.
The profile for judges also differed from the two categories of attorneys.
Justices used a larger percentage of either negative or positive terms than did
either group of attorneys. In many cases, justices wore their opinions on their
sleeves. For instance, following a comment from a defense attorney that asserted
that same-sex marriage hasnt established a single root in the tradition of this
country, a justice who voted to uphold the law restricting marriage to one
manone woman, commented that the issue deserved to be thought about more
broadly. Other rights, she noted, had been extended to gay persons.
Excerpt 2.5, WA, Justice
Im speaking specifically to the number of communities who have passed
laws which extend benefits that would otherwise be only available to mar-
ried persons to homosexual couples. Isnt that legitimately something to
look at in terms of the tradition and where weare?
Although this justices question is a challenge to the defense, it is a soft chal-

lenge compared to the questions that she asked of the plaintiffs. Multiple dis-
course features contribute to making a judges questioning of one side seem
relatively supportive or challenging, an issue Iexamine in the next chapter, but
part of what created the sense that this justice was supportive of the state posi-
tion was her use of the least positive membership term, homosexual couple,
alongside of married persons. In using married persons as the contrast
term to homosexual couples she implicitly treats heterosexuality as what is
normal and to be taken-for-granted in marriage. In so doing, her expression
implies that she may be favoring a one manone woman definition of marriage.
The situated meaning of any term will depend on the field of terms
employed by participants in a situation. When plaintiffs were referenced using
sexual-orientation terms, they often were contrasted with persons of other sex-
ual orientations. Although speakers did not use pair sets in any strict matching
fashion, as can be seen in Excerpts 2.4 and 2.5, terms frequently did occur in
sets. If the plaintiff were referred to as gay, the contrasting others might be
referred to as straight; if homosexual, then heterosexual; and if the plaintiffs
were referred to as same-sex couples, then the contrasting others could be either
different-sex, opposite-sex, mixed-sex, mixed-gender, or dual-gender couples.
The variation in forms used to refer to couples who are not same- sex
evidences a category being birthed. The other two term sets (homosexual-
heterosexual, gay-straight) are well-established ways to name categories of indi-
viduals by sexual orientation. But a socially agreed-upon term has not stabilized
for how to refer to couples who have different sexes. In the court exchanges, in
fact, we see a piece of the marriage equality battle to transform the meaning of
couple from a synonym for married that contrasts with single, divorced, and
widowed, and, most importantly, assumes heterosexuality. If socially legitimate
couples come in types of sexual orientation, then words are needed to name the
types. In Sackss 1960s (1992) lectures about the membership category, he used
family as an illustrative example. He treated husband and wife as a stan-
dard relational pair, a kind of category in which there could be only one of each
kind. When heterosexuality is assumed, there is no need to categorize kinds of
married couples by sexual orientation. But, as the legal issue in these cases pre-
cisely concerns whether one type of couple (same-sex) is entitled to be married,
then a term is needed to identify a couple who has a partner of the oppositesex.
With regard to court differences for sexual-orientation terms, there is an
association between court and the kind of term.12 The meaning of this associa-
tion, however, was the least straightforward. The patterns of use in the courts in
NewYork (negative decision) and New Jersey (positive decision) were relatively
similar to each other, but differed from the Washington court. Both NewYork
and New Jersey avoided the use of the term homosexual, with the Washington
court accounting for 65% of the terms uses. Important to remember, though,
is that although the patterns of sexual-orientation terms were similar across
NewYork and New Jersey, the two courts differed in systematic ways related to
the total use of person terms and the relative frequency of sexual-orientation
terms compared to others.
Oral argument in these state supreme courts was centrally about how to best
interpret the states constitution, its statutes, and past cases with regard to the
marriage appeal before them. Even so, differences among the key participants
and the courts were visible. Through the use of the names they used to refer to
gay parties, plaintiff and defense attorneys and the judges questioning them jock-
eyed to define the issue of same-sex marriage and the most defensible decision.
This jockeying involved moving the key components of the situation (people,
events, principles) toward or away from emphasizing the persons involved, and
selecting terms that characterized the affected persons either positively, neutrally,
or negatively. The choices among person reference terms and how often person
terms as a set were used cued the stance of the parties and the three courts.
Naming Practices Prior toTheseCases
Since the 1990s, attitudes toward gays and lesbians in the United States have
become increasingly positive (Andersen and Fetner 2008). This shift occurred
not only in attitudes people held in their heads and hearts but in the naming
practices they used in speech and writing. One way to anchor a sense of what
the contemporary preferred naming practices are is to look at style guides for
major US publications. The NewYork Times (2005) says the term gay (in its
adjective form) is preferred to homosexual and counsels writers to avoid the
term admitted homosexual because it suggests criminality or shame. The
Washington Post (2006) states that gay is generally preferred to homosexual.
Homosexual should be reserved for a clinical or biological context. Be wary
of using homosexual as a noun. In certain contexts, it can be seen as a slur.13
The preference for the term gay over homosexual is a recent change. Just
25years ago homosexual was the most commonly used term. Evidence of
this pattern can be seen by looking at hits in a LexisNexis search in US newspa-
per and wire services for the terms homosexual and gay in 1986 and 2006
(Table 2.8). Included also are counts from the year 2003, in which one of the
key US Supreme Court cases, discussed earlier, occurred.14
LexisNexis is admittedly a crude barometer for assessing usage of terms.
In the term search, no distinction was made between nominal and adjectival
forms, nor were collocations of the terms with other words examined. Even
recognizing these limitations, the table indicates that gays were being written
about more often in 2003 and 2006 than in 1986, and that the term gay is
now more frequently used than homosexual in public written discourse. This
preference in terminology use is even stronger than the table suggests as the
number of references to gay merely indicates 3,000+ when there were greater
than 3,000 instances, which was thecase.
Changes in how gays are referred to have been even more dramatic in the
courts. Alook back in time to two of the major gay rights cases reaching the US
Supreme Court is telling. Oral argument in the first one, Bowers v.Hardwick,
occurred two decades earlier (i.e., 1986)than the marriage cases. In this case,
the Court upheld the legitimacy of sodomy laws. In analyzing the hour-long
oral argument, what is striking is how differently gay people were referenced
then from how they are referred to in 21st-century appellate courts. To state it
simply, homosexualsand there were no gay, lesbian or same-sex preferring
personswere not treated as a legitimate category of person. Hardwick, the
petitioner appealing the sodomy law, was constructed as an individual who
performed an illegal act. There was no attempt to frame the law as unfairly
TABLE2.8
LexisNexis US Newspaper and Wire Services Usage ofGay
and Homosexual
1986 2003 2006
Term Frequency Percentage Frequency Percentage Frequency Percentage
Homosexual 793 54% 2870 49% 1714 36%

Gay 674 46% 3000+ 51% 3000+ 64%
affecting a category of persons. The constitutional question in the case con-

cerned whether individuals should have the right to engage in acts of sodomy
in the privacy of theirhome.
During oral argument, the term gay was never used. More startling is the
virtual absence of references (only two) to homosexual as a category of person
affected by the law. The term homosexual, used a total of 10 times, was most
often (five times) used as an adjectival modifier of sodomy or marriage
(two times). Excerpt 2.6, taken from the comments of the attorney arguing for
the State of Georgia, illustrates two uses of the term homosexual.
Excerpt 2.6, Bowers, Attorney General for Georgia
The Respondents have made a crack-in-the-door argument that if the
Eleventh Circuits decision is affirmed in this case it will not go beyond
consensual private homosexual sodomy; that it is submitted that this
crack-in-the-door argument is truly a Pandoras box for Ibelieve that if
the Eleventh Circuits decision is affirmed that this Court will quite soon
be confronted with questions concerning the legitimacy of statutes which
prohibit polygamy, homosexual same- sex marriage, consensual incest,
prostitution, fornication, adultery, and possibly even personal possession
in private of illegal drugs. Moral issues and social issues, it is submitted to
the Court, should be decided by the people of this nation.
Although the Bowers v.Hardwick case might be thought to have concerned

a category of personsi.e., gaysthe Court did not speak about persons
this way. Instead, court speakers focused on the individual affected by the law
with references to Mr. Hardwick or Michael Hardwick occurring 10 times.
In essence, then, we have an appellate court discourse that minimally frames
the issue in terms of a single person. Moreover, to the degree that it is about
a kind of person, the courts language identified individuals who engaged in a
particular kind of sexual conduct rather than a category of persons. Noticeably
absent from the oral argument in the 1986 Bowers case was any sense that the
court saw the issue as involving a category, letalone a legitimate category, of
persons in US society.
One might argue that the marriage law cases and the Bowers case are differ-
ent in kind and, therefore, markedly different person terms would be expected.
The Bowers v.Hardwick case was about whether a socially disfavored activity
should be assessed a crime. The marriage cases are about extending a positively
valued state benefit.
Inspection of the person-referencing forms in the oral argument of the
2003 US Supreme Court sodomy case (Lawrence v.Texas), which resulted in
the 6-3 vote overturning sodomy laws, makes clear that verbally recognizing
gay persons as a category is related to historical time more than to the type
of case. Consider the opening remarks of the attorney representing Lawrence:
Excerpt 2.7, Attorney for Petitioner Lawrence

Mr. Chief Justice. And may it please the Court. The State of Texas in this case
claims the right to criminally punish any unmarried adult couple for engaging
in any form of consensual sexual intimacy that the State happens to disap-
prove of. It further claims that theres no constitutional problem raised by a
criminal statute that is directed not just at conduct, but at a particular group
of people, a law that criminalizes forms of sexual intimacy sexual intimacy
only for same-sex couples and not for anyone else in the State
By the time of the Lawrence v.Texas case, gay men and lesbians were being
referred to as a category of person. In the hour of oral argument, sexual-
orientation reference forms, i.e., homosexual, same sex, and gay, occurred a
total of 30 times with these terms used by all parties. Similar to the marriage
cases, both more terms and the more positive ones were used by the petitioners
lawyer rather than by the Texas attorney or the justices. Particularly notewor-
thy, though, is that, with the exception of gay by the state attorney, each of
the three parties used every kind of sexual-orientation term during oral argu-
ment. See Table2.9.
Similar to the Bowers v.Hardwick case, the term, homosexual was also
used as a modifier of other referents. Homosexual modified sodomy, sex,
acts, and other words, and homosexuality was also referenced (total=20).
The courtroom participants language did, indeed, cue different attitudinal
stances toward legalizing sex between homosexual partners. Yet even those
participants whose attitudes were the most negative (i.e., the three dissenting
judges and the attorney for Texas), recognized that the petitioner represented
a category of persons. As illustrations, consider a question from Chief Justice
Rehnquist, one of the dissenting judges, to the attorney for the Petitioner
(Excerpt 2.8), and an exchange (Excerpt 2.9) between another dissenting judge
(Justice Scalia) and the attorney for thestate.
Excerpt 2.8, Chief Justice Rehnquist
If you prevail, Mr. Smith, and this law is struck down, do you think that
would also mean that a State could not prefer heterosexuals to homosexuals
to teach kindergarten?
TABLE2.9
Sexual-Orientation Person Terms inLawrence v.Texas
Petitioner State
Attorney Attorney Judges
Gay-Lesbian 7 1
Same-Sex 3 1 5
Homosexual 1 6 7
Excerpt 2.9, Justice Scalia and Texas Attorney Rosenthal

J-S: Why do you think that the public perception of-of homosexual acts
has-has not changed? Do you think it hasnt?
A-R: The public perceptionofit?
J-S:Yes, yes. Do you think theres public approvalofit?
A-R: Of homosexuals, but not of homosexuality activity.
By the early years of the 21st century, gay persons in appellate discourse
had become a legitimate and nameable category of citizen. They were homo-
sexuals, partners in same-sex couples, and gays and lesbians. In using the
profile of person terms which they did, court participants in both the same-sex
marriage cases and in Lawrence v.Texas were treating gay people as members
of a discriminated-against category of citizen. In using these labels, the courts
recognized that gays had entered a membership category in which women and
blacks were other key members. This change in the use of person-referencing
practices in judges and attorneys language, a change concurrent with the
larger societys usage, reflected and helped usher in a new reality. The name
change both revealed and fostered the transformation of gays and lesbians into
a category of citizens whose rights deserved careful consideration.
In the 1950s, US civil rights leaders, as well as the larger society, had
rejected attempts by gay activists to frame themselves as similarly positioned to
African Americans (Eskridge 2008). But in the United States today, the situa-
tion gays face is commonly treated as analogous to what blacks and women in
earlier times faced. Political cartoons draw on iconic images of the civil rights
movement to portray gays as being required to sit in the back of a bus, or they
frame US states attempts to funnel gays into civil unions rather than marriage
as comparable to blacks being required to drink from a decrepit water fountain
that sits next to an attractive one labeled for whitesonly.
In the marriage cases, comparing the injustices gays and lesbians are fac-
ing to those experienced by blacks and women were recurring features of talk.
Consider just one example that occurred between a defending state attorney
and a judge about whether gays should be conceived as a class of citizens
deserving strict scrutiny (i.e., a group deserving greater attention to their rights
because of a historical pattern of discrimination).
Excerpt 2.10, NY, Judge R.Smith and Defending State Attorney
Att-K:And the answer is no for this reason. Have they been discriminated
against? Yes. Do they need protection? No. Because under Kleeberg
which is exactly the test you posit, the issue is do they have political
clout. If in that particularcase [it
J-
RS: [bu-bu-but black people arent
without political clout either and we still apply-we still apply ah
strict scrutiny
In sum, less than 30years ago, US courts were not recognizing gays as a
discriminated-against category of citizen; this is no longer true. Although there
continues to be debate regarding the degree of similarity between discrimina-
tion based on race and sexual orientation, gays and lesbians have moved into
the unfairly-discriminated-against category.
Summary
Categories, note Amsterdam and Bruner (2000, 78), are formed and catego-
rization is performed against a ground of notions and narratives about the
nature of the world, and often these are less discernible the more elemental
they are. In this chapter Iexamined one of the most elemental categorization
systemsthe terms court speakers use to refer to plaintiffs in appellate pro-
ceedings. By comparing the three marriage law cases with two earlier gay rights
cases, we have seen a category of citizen come into being as a staple of appellate
talk practice. In a law school text focused on legal issues related to sexuality,
Leonard and Cain (2005, 5)comment that prior to the 19th century, a narrow
focus on behavior was characteristic of the treatment of sexuality. The idea
that an individual might be a homosexual or a transsexual as a distinctive
type of person had not yet emerged, and status-related terms to refer to such
individuals were not used. Instead, the law focused on prohibiting or regulating
particular acts, regardless of the identity of the actors.
Conceiving of homosexuals as a category of legal persons was not a firmly
established practice in the highest US court until the early years of the 21st
century.
When we consider the differences in person-referencing terms displayed
across the three 2006 marriage law cases, we see judges and attorneys using
person-referencing terms to influence other parties senses of what the real
issue should be. In these cases that involved the constitutionality of state mar-
riage laws, the frequency and kind of person-referencing practices used to name
gay parties mattered. Frequency and type of person-referencing distinguished
judges, plaintiff, and defense attorneys, and also distinguished the two courts
that upheld their existing marriage laws from the one that changed itslaw.
3
Ideology inJudges Questions
What US appellate judgessay1:
It is the lawand not the personal politics of individual judgesthat

control judicial decision making in most cases resolved by the Court
of Appeals. (Judge Harry T.Edwards)
There is little time or inclination to infuse the decision process with
personal ideology. (Judge PatriciaWald)
As the above quotes suggest, the judicial view of how decisions are made sees
court decisions as flowing from the apparatus of the law:Precedent and the facts
of a case, in light of constitutional provisions, determine judicial decisions. What
both judges explicitly deny is what most law-focused social scientists assume.
Appellate judges, and especially those at the highest levels of federal (Amsterdam
and Bruner 2000)and state (Langer 2002)courts make policy. Whether judges
political preferences are the central factor shaping decisions (Segal and Spaeth
2002)or are a minor contributor among multiple factors (Hansford and Spriggs
2006)is a matter of dispute. But to assert that appeals court judges are doing
political, ideological work at least some of the time is not disputed. Moreover,
when a dispute concerns a socially contentious issue, it is especially likely that the
judges political-legal ideology will be reflected in communicative conduct.
In this chapter, my goal is to specify how political-legal ideology is discur-
sively enacted during a relatively ignored part of appellate practice:oral argu-
ment. How, Iask, do judges questioning practices during oral argumentthe
only public aspect of decision-makingconnect with their political beliefs?
I begin by sorting through multiple meanings of ideology, identifying the one
Iam using, and summarizing what we know about questioning in courtrooms. Then
Idescribe how Ilooked for ideology in supreme court questioning practices. Judges
political ideologies, Ishow, were enacted in two ways:through rare but telling dis-
course moves and through a subtle, sequence-grounded style of questioning of the
60 party a judge opposed. This chapter illustrates both kinds of ideological practices.
Ideology in Judges Questions 61
Ideology
Ideology is a term of many flavors. Coined in the beginning of the 19th century
by Claude Destutt de Tracy, ideology initially indexed the science of ideas.2
Today ideology refers to the ideas themselves and, particularly, to ideas that
implicate action. The unmarked form of ideology calls up political ideas and
action. Thus we talk about liberal or conservative ideologies; capitalist, social-
ist, or communist ideologies. When ideology first entered the lexicon, it was
as likely to be about politically progressive commitments as it was about con-
servative ideas. In much contemporary usage, however, ideology is a way of
referencing beliefs that perpetuate inequality and obscure the interests of the
powerful. In this definition and usage, ideology becomes a term of criticism.
The everyday use of ideology is as a contrast term to what is true and right. The
nondirectional but action-implicating meaning, though, remains one thread of
ideologys meaning and it is this definitionIuse.
Although the unmarked form of ideology references political ideas, there
are action-implicating ideas in many other domains. Fitch (1998) sees cultures
as having interpersonal ideologies which influence what communities of peo-
ple take as reasonable and right ways to treat others in family and work rela-
tionships. Mateosian (2001) refers to gender ideologies to capture how beliefs
about gender shape legal decisions in rape cases. Billig and his colleagues (1988)
make a distinction between intellectual and lived ideologies to highlight that
while consistency is the hallmark of intellectual beliefs, in ordinary life people
are much messier, mixing actions that would intellectually be tied to different
ideologies. Afinal kind of ideology that has particularly occupied the attention
of language and discourse scholars is language ideology. Similar to many
influential terms, language ideology does not have a single meaning; a useful
umbrella definition is that it is beliefs about the rightness or reasonableness of
using a certain language or way of speaking during institutionally specified
activities (Gal 2005; Woolard and Schieffelin 1994).3
My conception of ideology is most similar to the one Philips (1998) used to
study how judges conducted sentencing when taking a plea in a criminal case.
Judges in the state courts that Philips studied did not see themselves as politi-
cal or ideological; like the appellate judges quoted at the start of this chapter,
they saw their work as outside of politics. But, as she showed, judges asked
questions of defendants in distinctively different ways that had the effect of
instantiating different notions of the state.
Before sentencing a defendant, a judge needs to ascertain that a defendant
understands the charge to which he or she is pleading. Philips studied this sen-
tencing process in 44 cases overseen by multiple judges in one US state. Aliberal
ideology was enacted by asking open-ended questions that explored the complex-
ities of defendants life circumstances that led them to be pleading to the particu-
lar charge. This liberal ideology, which Philips described as a procedure-oriented
judge, was manifest through asking more questions about social background
and by asking questions that had the defendant spell out many particulars. The
procedure-oriented questioning style is the liberal ideology because it seeks to
ensure that the defendants rights are protected and that he or she clearly under-
stands what is happening. At the same time, this style is more intrusive, takes
more time, and costs taxpayers more money. The alternative style, the record-
oriented questioning style, enacted a conservative political stance. It did so by
virtue of treating the written record as already saying it all. Ajudges responsi-
bility was simply to ask a few yes-no questions and ascertain that the defendant
understood the written record. As Philipss study showed, questions not only
press the addressed party to provide information but, by virtue of their number
and content, enacted a particular ideological stance.
State supreme courts, with their responsibility to interpret principle-rich
state and federal constitutions, are especially likely to be informed by beliefs
that compete with each other. One common conflict lively in courts pits the
democratic principle of majority rule against the equally important principle
of respecting the rights of unpopular minorities. In particular, same-sex mar-
riage brings the constitutional principles of due process and equal rights for all
citizens into tension with the equally valued principle that it is state legislatures
governed by their traditionsrather than their courtsthat should be mak-
ing new laws. Judges who gave greater weight to state claims that legislatures
should be setting the laws for their people, and believed that same-sex marriage
was not centrally a civil rights issue, were manifesting a conservative ideology.
Judges who gave greater weight to respecting minority members civil freedoms
were manifesting a liberal political ideology (Curtis2008).
Questioning inCourts
Within courts, the central activity in which questioning has been studied is
examination of witnesses by attorneys during trials. In early studies, it was
assumed that questions could be arrayed in a hierarchy that ranked their
coerciveness (Danet and Bogoch 1980) or controlling character (Woodbury
1984) based on grammatical features. Later work called into question the
existence of a tight relationship between form and function. In her studies of
Australian sentencing hearings, Eades (2000) showed how declarative yes-no
questions and tag questionstwo forms widely assumed to be coercivecan
be used in non-coercive ways to create evidentiary harmony between attorneys
and witnesses during direct examination.
Facets of questions other than their grammatical form also affect the
courtroom stories that attorneys build through questioning. Through what
is presupposed in a question, as well as the lexical choices, questions set in
motion inferences that advantage or disadvantage a particular side (e.g.,
Aldridge and Luchjenbroers 2007; Drew 1992; Grisci and Portecovo 2004).4
In a study of the discourse in the William Kennedy Smith rape trial in the
United States, Matoesian (2001, 54)demonstrates the power of another facet
of questioning:repetition. Through a string of identical word choices in simi-
larly formatted questions, he shows how an attorney successfully created links
between disparate pieces of testimony and reinforced traditional gender views
that at least partly blame women. Through repetitions ability to comment
covertly on prior testimony, he noted, the attorneys questioning instruct[s]
the jury that the witnesss answer is somehow flawed or incredible.
Although questioning is the bread-and-butter tool in direct and cross
examination, it can also be used during closing arguments. In a study of a US
murder trial in which the prosecutions closing argument lasted more than three
hours, Pascual (2006) found the attorney to use 163 questions. In this mono-
logic context, the attorneys rhetorical questions created a sense of interaction
and engaged the jurys ongoing attention. Most of the questioning that occurs
in courtrooms is by attorneys, but there are legal events in which judges are the
question-askers, with small claims court (Conley and OBarr 1990, 2005)and
sentencing hearings (Eades 2000)being two such occasions.
Investigating Ideology inSupreme Court Questioning
Judicial questioning in supreme courts is distinctive as a legal practice. It does

considerable work to enact judges as committed to being just, fairly assessing
each partys arguments on the legal criteria for decision-making. As shown in
chapter1, judges work to establish this identity by frequently using argument
meta-language and references to prior cases, and by including neutrality mark-
ers in their queries.
To identify how ideology was being expressed in judges questions, Iexam-
ined oral argument in two ways. In a first phase, Istudied transcripts of the
court cases looking for questioning moves that strongly implicated a judge as
holding either a pro or con position toward same-sex marriage. Of note, only a
small set of moves were ideologically revealing in this obvious way. Although
telling when they occurred, these moves were rare in the courts. As the norms
of the oral argument genre discourage judges from advocating a side, for many
judges, there were no give-away content-linked question features that cued their
ideology. Nonetheless, from listening to the entirety of what judges asked in
each case, it seemed possible to tell which way a judge was going to vote. What
features of questioning were shaping this assessment regarding the political-
legal ideology that a judge favored became the focus of systematic coding?5
I used judicial opinions, which reported individual votes, to categorize
each judges ideology. In essence, I treated each judges vote as evidence of his/
her legal ideology. In this complex case that pitted competing legal principles
against each other, where did a judge come down? Did a judge side with the
right of the minority or did she favor the right of the state? Of the 50 judges, 27
voted to support same-sex marriage (the liberal ideology) and 23 voted against
it (the conservative ideology).6 These became the focal two groups. Across the
courts there were 922 questioning turns.7 Comments by Chief Justices that
served turn management purposes, such as informing attorneys that their time
was up or calling on the next attorney to start speaking, were not included. Of
the 50 judges that comprised these courts, eight of them did not ask any ques-
tions. Of the 42 who did question, 25 voted to uphold same-sex marriage and 17
voted against it.8 The pattern across judge questioning is striking.9 Judges who
favored same-sex marriage engaged in tough questioning with state attor-
neys, whereas judges who were against same-sex marriage employed tougher
questioning with the plaintiffs attorneys. I explain tough questioning soon, but
first consider three infrequent but highly revealing questioning moves.
Rare but Telling DiscourseMoves
A first kind of rare but telling discourse move was when a judge used extreme
case formulations. Extreme case formulations, a discourse device initially iden-
tified by Pomerantz (1986), is a way a speaker legitimizes a claim. Extreme
case formulations may be realized through many language forms (adverbs,
adjectives, pronouns, etc.). They reference formulations that make a strong,
one could say, extreme case. Speakers regularly use them to bolster a view
they are advocating in a situation where others are opposing or skeptical, but
their use in a situation where a party is not expected to advocatei.e., judges in
appellate courtcan cue political/legal ideology. In a case that pits the right of
the state to honor the traditions it values against the rights of a minority group,
extreme case formulations that tie to one of the sides do ideological work. In
Excerpt 3.1, a judges question treats the plaintiffs argument as strongly unrea-
sonable. This assessment is conveyed by his usage of two extreme case formula-
tions:(1)describing the amount of time marriage was believed to be for only
opposite-sex couple as a long long long time and identifying who believed
it as necessary to officially limit marriage to opposite-sex couples as nobody,
nobody. The use of this move leads to an inference that this judge would be
voting against the plaintiffs, an outcome that in fact occurred.
Excerpt 3.1, NY, Judge Robert Smith to plaintiff attorney
JRS:But doesnt-doesnt that ah suggest ah maybe an argument for the
other side. For a long long long time it was not only believed it was
just assumed without even thinking that only people of opposite
sexes could marry. Imean thats not true of race-racial discrimina-
tion laws all over theplace
AK: Well yourhonor

JRS:
Nobody, nobody even though it was necessary to limit marriage to
opposite-sex couples because it seems so obvious for all thoseyears.
A second kind of ideology-cuing move was the telling of a story in which

there were clearly reasonable and unreasonable parties whose identities linked
with the issue under discussion. Stories, as is widely recognized, carry moral
evaluations, and although uncommon in appellate court questioning, are infor-
mative when they occur. An example occurred in the Washington court when
a judge favoring marriage equality addressed a story-question to the attorney
representing thestate.
Excerpt 3.2, WA, Justice Owens to defending state attorney
Mr. Oban Id like to ask you a questionhypothetical Id like to posit for
you. Um one summer-one week in one summer and a town far far away.
And I had the pleasure of presiding over three weddings. And I wanna
describe the couples to you. First wedding I did the cou-the bride was
44 years and her groom was 21 years old. The second one I did the um
bride was 55years old and the groom was 35. And the third one Idid, the
groom was 57years old and the bride was 35. Now, none of these couples
intended to have children or I-or were able to have children at that point.
The last wedding was held at the home of the mother of the bride and the
ex-wife of the groom. And they were uh a le-same sex couple and they
hosted the event. Whats rational about giving marriage licenses to those
3 couples who seem to have so little in common? And Imight add none
of these couples are mar-are married. And only the lesbian couple uh ter-
minated their relationship by death. They-death parted them. But whats
rational about treating them differently?
Although the judges story is a bit confusing due to her use of bride and groom
for both same-and opposite-sex couples, her story strongly implies the reason-
ableness of allowing people who love each other to marry. Her story-question
implicates a pro-equality and hence liberal political ideology.
A third ideology-revealing move was the use of humor at one partys
expense. Humor was rare in these appellate cases; across the eight court cases
moments of humor, as cued by hearable laughter, ranged from 0 to 12 instances
with an average of 4.13 times per case. When a moment of humor occurred, it
was usually benign. However, one instance in the California court was at odds
with this generalization; a judge made fun of what an attorney was saying.
In Excerpt 3.3, Justice Marino asked a state attorney defending the existing
marriage law how he would distinguish the holding, that is, the understood
legal meaning of a US Supreme Court ruling from what US Supreme Court
Justice Scalia argued in his dissenting opinion. The Lawrence case was about
whether it was legal for individual states to have laws prohibiting sodomy. By
a 6-3 vote the majority of the court said no it was not; this vote had the effect
of striking down laws in 13 states. In his dissent, Justice Scalia argued that the
Courts decision would lead to awful outcomes including, he asserted, same-sex
marriage.
Excerpt 3.3, CA, Justice Marino to state attorney
1 J-M:How would you distinguish the-the holding in the Lawrence case,
uh Justice Scalia, who dissented in that case said that the liberty
protected by the benefits of-that Lawrence leaves no room to deny
the benefits of marriage to homosexual couples exercising the lib-
erty protected by the constitution. Do you take that broader read-
ing of-of Lawrence?
2 A-K:Well, I-Ithink when uh Justice Scalia was predicting that uh the
Lawrence holding was gonna lead to same-sex marriage, he was
engaging in a bit of hyperbole. Idont=
3 J-M: [But werehere.
4 A-K:[=for a moment believe that if thatcase-
((laughter from courtroom audience))
5 A-K: Imsorry-
6 J-M:Were here.
((laughter from courtroom audience))
In a history of the US Supreme Court focused on a small set of judges, one
of whom was Justice Scalia, Rosen (2007, 182)comments that Scalias opinion
writing has no volume knob. That is, for any Court decision in which Scalia
is in the minority, he expresses his disagreement vehemently. A-Ks comment
in Turn 2 that Scalia was engaging in hyperbole in his dissenting opinion was
likely true. What makes J-Ms repeated comment that were here funny for
courtroom observers is that J-M was using Justice Scalias words against the
state position (Antaki and Leudar 2001) rather than in its support, which is
what would be expected. In recruiting Scalias exact words against the attorney
to cause laughter at the attorneys expense, J-M enacted a highly critical stance
toward the states position. This humor at the expense of the state attorney
implied that the judge was likely to favor the liberal, minority-rights-supporting
position, which in fact hedid.
Not all telling discourse forms are blatant. In an analysis of Californias
In re Marriage Cases, Deeb (2013a) shows that a judges ideological stance was
signaled by a quite subtle formulation, whether the judge used a singular or
plural form of the word, equality(ies). The singular form (equality) was used
when judges favored marriage equality, whereas the plural form (equalities)
was used by judges arguing for the similarities of domestic partnership and
marriage.10
Extreme case formulations, vivid stories, and using words of one partys
side against that side to cause humor are examples of easy-to-spot markers
of ideology. By far, though, judges ideological stances in these marriage cases
were enacted in subtle, turn-spanning cumulative ways using a discourse style
Ilabel tough questioning.
Tough Questioning
Oral argument involves multiple judges addressing questions to attorneys rep-

resenting two disputing parties under rules that allocate equal time to each
side. The context and rules of the court are designed to treat opposing par-
ties equally. Yet, when we turn attention from the court practice as a whole to
the questioning conduct of individual judges, we can identify individual judges
giving one side a tougher time than the other. As Iconceive of it, tough ques-
tioning is a feature of questioning sequences, not an aspect of individual ques-
tions. In this context, it involves an assessment based on comparison-of-use
frequencies. In this situation with two disputing parties, how similarly (or dis-
similarly) does a judge treat each party? Is one party questioned more, pursued
further, or asked a greater frequency of difficult questions?
From listening to the tapes and studying transcripts, Iidentified discourse
features that could be expected to make a judges questioning of one party
tougher than the other. The discourse feature identification process reflected on
the exchanges based on repeated listening while drawing on past questioning
research.11 Iidentified six features as likely contributors to questioning tough-
ness:(1)the sheer number of questions addressed to a party, (2)the complexity
(i.e., the length) of questions, (3)the number of turns across which an issue was
pursued, (4)interruptive beginnings by a judge, (5)beginnings with disagree-
ment tokens, and (6)hypothetical questions. Table 3.1 provides an overview of
the six questioning features. Of note, some of these features were operational-
ized in different ways to see if findings would differ. In general, they did not.
The rationale for each feature is explained below, followed by an interpretation
of the findings.
Number ofQuestions. Justices varied enormously in how often they spoke
(076 questioning turns), but whatever a judges level of talkativeness, a higher
number of questions to one side rather than the other is an indicator of tough-
ness. The analysis revealed that judges who favored same-sex marriage asked
more questions of the state on average, whereas judges who were against same-
sex marriage asked more questions of the plaintiffs.
Question Length. In a study of reporters questions during news interviews
with US presidents, Clayman and Heritage (2002a, 2002b) found that longer
questions were more adversarial. In oral argument, long questions develop a
nuanced position on the opposite side from the one an attorney is arguing.
TABLE3.112
Tough Questioning Features and thePattern
Justice Ideology
(Liberal) (Conservative)
Pro-SS Marriage Con-SS Marriage
Party Addressed
Questioning Feature Plaintiff State Plaintiff State
Ave. Number of Questions*** 8.2 10.0 18.5 9.0

Ave. 1st Question Length* 47.6 52.6 49.0 38.6
Ave. Longest Question* 87.3 107.4 104.1 83.9
Ave. Length of QuestionString 1.3 1.7 2.4 1.7
(i.e., number of turns)***
Ave. Longest String*** 2.5 3.5 5.5 3.5
Ave. Percentage of Sequences That Were 2 28% 41% 58% 36%
or More Questions***
Ave. Number of Questions Beginning with 2.0 3.8 5.5 2.2
Disagreement Tokens***
Ave. Percentage of Questions with Disagreement 27% 35% 31% 21%
Tokens*
Ave Number of Interruptions** 2.4 2.3 5.2 1.8
Ave. Percentage of Questions with Interruptions 22% 23% 31% 29%
Ave. Number of Hypothetical Questions** 1.3 1.2 1.7 .5
Note:asterisks indicate an interaction effect between judge ideology and party addressed
(***=p < .01; **=p < .05; *=p <.10).
There is, however, a caveat. If a speaker engages in a sequence of questions, it

is expected that first questions will be most telling. First questions are where
speakers develop the complexity of an issue. Because follow-up questions
were expected to be shorter than the first one in a sequence, the length of first
questions was assessed separately from other questions. Of note, the pattern
observed for first question and the longest one addressed to each party was the
same. Judges asked longer first questions of the party they voted against and
directed their longest question to this sameparty.
Question Pursuit. The sequential placement (i.e., 1st, 2nd, 3rd consecutive
question) of each question within a judge-attorney exchange before another
judge took the floor was recorded and then assessed in three ways:(1)the aver-
age turn length of a string, (2)the judges longest string, and (3)the percent-
age of turns which were part of pursuit sequences. On all versions of pursuit,
judges pursued the party against whom they votedmore.
Questions Beginning withDisagreement Tokens. Discourse markers, such
as but or well (Schiffrin 1987), have several meanings, but one common one
is to cue disagreement with what a person previously said. Cross-examinations
are expected to be tougher spates of questioning than direct examination. In
his analysis of 100 UK trials, Heffer (2005) found that attorneys were eight
times more likely to start questions during cross-examination with the token
well than during direct examination. Judges that began a larger percentage
of their questions to one side with disagreement tokens were being tougher
on that side. Disagreement tokens are common in appellate questioning; they
occurred in 30% of questioning turns. Disagreeing more frequently with one
side than the other is a practice that contributes to the cumulative effect of hav-
ing done tough questioning in this context.13 The overall number of disagree-
ment tokens occurred in the patterned way Idescribed for other questioning
features. Justices who favored increasing the rights of gays and lesbians used
more disagreement tokens with attorneys for the state, whereas justices voting
against these rights used more with the plaintiff attorneys.
Questions Beginning withan Interruption. To interrupt a speaker before he
or she finishes is to cue dissatisfaction with what is being said. As Sacks (1992,
642) noted, if you want to show that something somebody is saying really
angers you, then placing your utterance by starting while theyre still talking
seems to be more effective than waiting and placing it after theyre finished.
Given that oral argument extends to supreme court justices the right to interrupt
attorneys during their talk, their interruptions did not convey anger so much as a
sense of dissatisfaction with an attorneys response. More frequent interruptions
of one side than the other is a measure of tougher questioning. Interruptions,
which were defined as either the justice overlapping an attorneys turn two words
or greater from a transition-relevance place, or a moment of non-overlapping
speech where a justice offered a brief apology for starting before an attorney
finished, were commonplace. They occurred in 26% of the questioning turns. In
analyzing interruptions, there was a different pattern than exhibited with other
features of questioning. Justices who were against extending marriage rights
interrupted the plaintiffs more than the state attorneys, but the promarriage-
rights justices did not differ in their treatment of the two parties.14
Hypothetical Questions. A final feature contributing to the meaning of
tough questioning in this appellate context is the use of hypothetical ques-
tions. In an Internet guide designed to help prepare attorneys for oral argu-
ment, Frey (1999, 1)identified clarifying the scope of claims as one of six
purposes justices have in oral argument. He commented that justices will pose
hypothetical questions to test the limits of principles underlying your argu-
ment. Hypothetical questions are ones that ask an attorney to draw conclu-
sions about a state of affairs that does not exist in the world. Excerpts 3.4 and
3.5 illustrate two instances that occurred in the Californiacourt.
Excerpt 3.4, CA, Chief Justice George to Plaintiff
Well thats what I want to focus on, uh so that I understand fully your
position. In the unlikely event that the legislature or a voter initiative were
to determine that in order to distinguish civil marriage ceremonies from
their religious counterparts, uh all persons, whether they were heterosexual
couples or same-sex couples, would have their uh joinder termed lets say
a civil union, or a domestic partnership. Would that violate uh the rights
that you invoke or is it only because here there is a distinction between
heterosexual couples and uh same-sex couples?
Excerpt 3.5, CA, Justice Kennard toState
[Well, Ill talk-Ill start. Lets assume that we agree with your side, you win.
How should a domestic partner answer the following question? Are you
married or are you single? Wouldnt the existing statutory scheme compel
a domestic partner to disclose his or her sexual orientation in situations
where they would prefer not to? Wouldnt that implicate the state constitu-
tional privacy interests, initiative power be entitled to amend the constitu-
tion, to uh reverse this courts decision?
A question that asks an attorney to comment on a state of affairs that does not
exist is a difficult one. Attorney preparation manuals regularly advise attorneys
not to say to a justice, thats not my case (Frey 1999). If a justice directs more
of this kind of question toward one side than the other, that the justice is being
tougher on thatside.
Hypothetical questions were used 101 times (11% of questions) across the
court cases. The pattern of means revealed that hypothetical questions were
selected in a complicated fashion. Justices of all ideologies addressed more
hypothetical questions to the plaintiff, but there was also an effect related to
their ideology and the party they were addressing. In essence, the party seeking
to change the status quo (in this case, the plaintiffs) received more hypothetical
questions. At the same time, judges voting against same-sex marriage asked a
disproportionately greater number of such questions of plaintiffs than those
who voted in favor of same-sex marriage.
Concluding Thoughts about Ideology
In most prior research about ideology in legal exchanges (e.g., Ehrlich 2001;
Philips 1998), ideology was embedded in the courtroom talk, accomplished
through speakers discourse choices but not related to the activitys understood
purpose. In contrast, in these appellate court exchanges about same-sex mar-
riage, the issue of a judges political/legal ideology was front and center. For this
decision, conservative and liberal judicial ideologies competed with each other.
In a decision-making activity that recognized the legitimacy of both allowing
the state to decide what its laws were to be and respecting the right of citizens
for equal treatment, a judges decision about how to vote was a decision about
which ideology to favor. In essence, judges confronted an ideological dilemma
(Billig 1987; Billig etal. 1988)in which they ultimately needed to privilege one
principle over another.
Whether judges ideological positions would be visible through subtle dif-

ferences in questioning style is the issue I explored in this chapter. Tougher
questioning of one party than the other, Ihave shown, functioned as a stance
indicator of ideology. In this legal practice in which judges questioned two par-
ties allocated equal time for advocating competing views, subtle differences in
each partys treatment became telling.
Tough questioning is grounded in ordinary life logic. It is commonplace
knowledge that it is more likely, as well as easier, for speakers to challenge
positions that they find problematic; reasonable positions are not pushed as
far. Although judicial questioning evidences judges giving attention to the
espoused, apolitical logic of appellate decision making, the consistent, albeit
small, ways that justices posed questions differently to the parties cued their
ideological stances. These tiny differences in question-posing on an ideologi-
cally charged issue conveyed a judges political stance.
Tough questioning is a native rather than a technical term. A Google
search on the phrase tough questioning indicated 16,300,000 hits including,
for instance, Imran Khan faces some tough questioning in Youth Townhall,
Deepwater faces tough questioning by zoning board, and Herbert stands by
tough questioning of Miles. Tough questioning is the way ordinary speakers
describe challenging inquiry in which someone is asked to account for a posi-
tion, an action, or an expression. This index of tough questioning is linked to
this ordinary sense of the term, but its expression takes on a distinctive cast
in this out-of-the-ordinary activity. In appellate court argument when judges
question attorneys about a politically controversial issue, tougher questioning
of one side becomes an ideologicaltell.
4
Identity-Work inJudicial Opinions
The law is centrally about interpretation of texts, and its official interpreters
(i.e., judges) frequently arrive at different meanings when they examine the
same text. In law, as Amsterdam and Bruner (2000, 173)note, controversy
is the order of the day, and meanings are almost always vulnerable to being
contested. In this terrain of fragile, contested meanings, what is striking about
judicial language in written opinions is its certainty:Opinions are expressed as
if they were the only conclusion possible. This quality of legal opinions make
sense when we recognize that the laws focal aim is to decide which disputing
party should (or should not) be given particular resources, punishments, or
benefits. Tentativeness may be a mark of professional expertise when an issue
involves a much-debated legal distinction, but for judges to display tentative-
ness in most written expressionthat a judge kind of sees a decision as right
but that it is a close call and it could have gone the other wayis to undermine
what judges are askedtodo.
A judicial opinion that is expressed with certainty when all or most of the
opinion-writers colleagues arrive at a similar interpretation is one matter. It is
quite a different matter, though, when the legal standing of an opinion would
have changed if a single judge had voted a different way. When a supreme court
decision is 5-4 or 4-3, it is especially important that the justice writing the opin-
ion make an argumentatively compelling case for why their sides vote and rea-
soning is correct. To be compelling, a written judicial opinion must represent
alternate interpretations in ways that make visible the obvious incorrectness of
the alternatives. This opinion-crafting requirement is as important for judges
who write dissenting opinions as it is for the opinion-writer who has the job of
expressing the courts majority opinion. In a closely divided court the commu-
nication challenge in opinion writing is this:Judges must craft their opinions
to not only legitimize the correctness of their own opinion, but also to delegiti-
mize the opinions of competing equally expert colleagues.
In this chapter Idescribe the discourse strategies used by judges in the state
72 court (Washington) that was the most deeply divided. Following an explication
Identity-Work in Judicial Opinions 73
of this courts strategies, I describe how Iowa Supreme Courts unanimous

opinion, written three years later, differed. When ones colleagues do not agree,
how does a judge craft his or her view as the reasonable and right one? How is
opinion-crafting done differently when a court has unanimity?
Court opinions are likely to be more influential if the vote is unanimous or,
at least, decided by a large majority (7 to 2)(Maltzman, Spriggs, and Wahlbeck
2000). For this reason, it is necessary for a majority opinion-writer to give
attention in his or her writing to framing issues in ways that will keep other
judges on board. Dissenting opinions are generally less influential. At the same
time, dissenting opinions do not have a need to please others. As US Supreme
Court Justice Scalia commented:
To be able to write an opinion solely for oneself, without the need to accom-
modate, to any degree whatever, the more-or-less differing views of ones
colleagues, to address precisely the points of law that one finds important
and no others; to express precisely the degree of quibble or foreboding, or
disbelief or indignation that one believes the majoritys disposition should
engenderthat is an unparallel pleasure. (Wrightsman 1999,123)
Although the ideal of judicial decision-making frames the process as a neu-

tral one, in which facts of the case and legal precedent determine the outcome,
students of federal and state supreme court decision-making recognize that
the judges political commitments play a role.1 How important judges political
commitments are to a decision vary with the kind of judicial decision and the
make-up of a panel of judges (Sunstein etal. 2006), but if we are to understand
how particular proposals come to be reigning policies in the United States, it is
important to recognize the role courts do play (Bosworth 2001). Supreme court
decisions involve making judgments about emotional, politically divisive issues,
yet a decision must be framed and justified as a matter of applying precedent.
Treating a decision as dictated by precedent, though, becomes suspect as courts
divide into equal-size factions and invoke legal precedent in contrary ways.
Such was the case in the Washington Supreme Courts decision about the con-
stitutionality of its marriagelaws.
Washington Supreme Court and Andersen v.KingCounty
In March 2005, the nine-justice Washington Supreme Court met in a packed

courtroom to hear oral argument about the constitutionality of its Defense
of Marriage Act (DOMA) statute, the kind of statute that a majority of
US states had passed following the Hawaii Supreme Courts 1993 decision
that extended the rights of marriage to same-sex couples. Heather Andersen,
one party of a same-sex couple, along with 18 other couples, was seek-
ing to change the states marriage law. Judges in two different Washington
courts, one with jurisdiction in King County, had ruled that the state stat-
ute restricting marriage to heterosexual couples was unconstitutional. Soon
after the lower court decisions were announced, the decisions were appealed.
Implementing change to the states marriage law was put on hold, and the
two cases were bundled into a single one for the Washington State Supreme
Courts consideration. In addition to the briefs submitted by the gay plain-
tiffs and the state agencies, there were 21 amicus briefs submitted by groups
either supporting or attacking the reasonableness of extending marriage to
same-sex couples.
At the time of oral argument, Massachusetts was the only state in the United
States that had legalized marriage between same-sex partners. At the time, too,
it was uncertain whether the Massachusetts court decree would remain in force.
Agoodly number of observers expected the state legislature and its citizens to
overrule the court and pass a constitutional amendment defining marriage as
between one man and one woman. Of note, states vary widely in how easy it
is to amend their constitutions. Massachusetts is a relatively difficult state, as
an amendment to the constitution requires the legislature to take action for
two consecutive years before submitting it to a popular vote. Washington, in
contrast, is a state that permits ballot initiatives from its citizens; it is a state in
which it is comparatively easy to change the constitution.
An important way that state supreme court judges vary is in how insulated
they are from their electorate. In states that elect their judges, rather than have
the governor, the legislature, or a merit committee appoint them, and when
judges serve relatively short terms (i.e., six rather than eight or ten years), judges
will have more concerns about not alienating their citizens (Langer 2002). In
Washington, justices must run for election and do so every six years. Thus,
Washington justices are more directly accountable to citizen opinion than is the
case in other state supreme courts.
Typically, supreme courts announce their opinions in the same session
as the one in which they hear oral argument, or if it is late in a court ses-
sion (i.e., May), at the start of the following one. The Washington Supreme
Court did not release its written opinion for 16 months. In July 2006, the
Court released six of them. The opinions included the Court position, a
plurality view signed by three judges, a concurring opinion signed by two
justices, therein providing the court majority of 5 to 4.The Court had voted
to uphold Washingtons DOMA statute, but, because one of the concurring
opinions agreed only with the vote and not the legal reasoning, the decision
was a plurality opinion rather than a majority one. There was also a one-
page opinion from the Chief Justice concurring with the majority view; in
this opinion the Chief Justice underscored what he saw as the main issue in
the case.2 In addition, the four other justices signed a dissenting opinion.
There were also two additional concurring-in-dissent opinions written and
signed by sets of three judges who were not the primary author of the dis-
senting opinion (Table4.1).
TABLE4.1
Overview ofWashington Court Opinions
Author and Opinion
Identification Other Signers Length
Opinions of Majority
Madsen (Plurality) [P] Alexander (Chief J) 62 pages, 19 notes
C.Johnson
J. Johnson (Concurring in Sanders 56 pages, 54 notes
Judgment only) [C-JO]
Alexander (Chief J) 1 page
(Concurrence) [C]
Opinions of Minority
Fairhurst (Dissent) [D] Chambers 41 pages, 30 notes
Owens
Bridge
Chambers (Concurring in Owens 11 pages, 6 notes
Dissent-1) [C-D1]
Bridge (Concurring in 33 pages, 15 notes
Dissent-2) [C-D2]
In assessing the constitutionality of Washingtons DOMA statute, the court

needed to address several issues. The first issue was whether DOMA violated
the amendment to the Washington constitution that prohibited sex discrimina-
tion. Asecond issue involved determining if gays and lesbians deserved to be
considered a group deserving strict scrutiny. Strict scrutiny, a legal concept
developed in the 1950s during the Warren Court (Gaskins 1992)ensures that
a state does not continue discriminatory practices against groups of citizens
that have long been disenfranchised. It must be implemented as the legal cri-
terion, rather than the easier-to-meet standard of rational basis, when there
has been a history of state-sponsored discrimination against a group. In the US
context, the central group to whom strict scrutiny has been extended is African
Americans. A related third question that the court needed to address was
whether the state could be seen as having a rational basis to make the distinc-
tion that only one man and one woman counted as eligible marriage partners.
Between 2006 and 2009, eight state supreme courts made decisions about
same-sex marriage. As state constitutions vary, the exact issue each court had to
decide also differed. In every court in which it was reviewed, marriage between
same-sex partners was a publicly contentious issue. Of the eight courts that
issued opinions during this time frame, Washington took the longest to release
its opinions, published the largest number of opinions, and was the only court
that did not have a majority opinion. In sum, in Andersen v. King County the
Washington Supreme Court was deeply divided. Not only were members of the
Court in strong disagreement with each other about how to vote, but the Court
also divided regarding the correct reasoning for their votes.
Before describing the discourse strategies judges used to support their
own reasonableness and their colleagues lack of it, consider first how judges
referred to disagreeing others.
Representing DisagreeingOthers
Opinion-writers referenced the courts other judges in one of two main ways.
They either named the opinion-writer explicitly or they referred to the appellate-
relevant membership category (plurality, concurrence, or dissent). The two
forms of reference were also combined, especially within the dissenting and
concurring opinions. In addition to explicit references, opinion-writers also
made implicit references. By virtue of the context of disagreement, an opinion-
writers assertion could be seen (and was taken) as referring to a specific party.
For instance, in the opening of the plurality opinion, Justice Madsen asserts:
Excerpt 4.1 (Madsen,4)
Personal views must not interfere with the judges responsibility to decide
cases as a judge and not as a legislator. This, after all, is one of the three legs
supporting the rule of law. Here, the solid body of constitutional law disfa-
vors the conclusion that there is a right to marry a person of the samesex.
The chief dissenting opinion-writer (Fairhurst, 36, footnote 29)treats this as a

criticism directed at herself and responds with a strong counter-criticism, albeit
locating it in a footnote:Suggestions by the plurality and the concurrence that
I reach this determination by judicial fiat or based on personal views are
unsuccessful attempts to deflect attention from the discriminatory impact of
unconstitutional statutes.
Of interest, the issue of how to present disagreeing colleagues views goes
unmentioned in the practical guides that offer judges advice about how to craft
a good appellate opinion (e.g., Re 1975). The problem of how to design ones
talk or writing to bolster selfs view of a scene, an issue, or an action in the face
of contesting others is a widespread communication challenge. It is a staple
problem of political actors; litigants in court confront the issue; scientists argu-
ing for the validity of different theories face it, and it is the stuff of daily life
among workplace colleagues, families, and friends. The appellate genre shapes
the form and substance of judicial strategies, but what is striking is the simi-
larity to discourse strategies that occur elsewhere. In describing the strategies
judges use, Idivide them into those that occur regularly in other contexts of
dispute and those which are relatively distinctive in appellate opinion writing.
Context-Spanning Strategies
Judges made use of self-bolstering, other-critical strategies in opinion-writing

that have been identified in other sites. The strategies included: (a) extreme
case formulations, (b)reported speech, (c)skepticism markers, including scare
quotes, and (d)the defining of keyterms.
Drawing on study of exchanges in ordinary conversation and small

claims courts, Pomerantz (1986, 219) identified extreme case formulations
as a device speakers used to defend against or to counter challenges to the
legitimacy of complaints, accusations, justifications, and defenses. Extreme
case formulations are words and phrases that express an intense degree of
what is being asserted. Opinion-writers texts were full of them. Excerpt 4.2
illustrates the commonly occurring ones; Excerpt 4.3 illustrates a particularly
creativeset.
Excerpt4.2
(a) While desirable, nowhere in any marriage statute of this state (Madsen,
31fn12)
(b) This court has never held (Chambers,7)
(c) There is nothing in these cases (Chambers,9)
(d) the DOMA wholly fails a rational basis review (Bridge,2)
(e) The Defense of Marriage Acts (DOMAs) denial of the right to marry
to same-sex couples is not rationally related to any asserted state inter-
est, it is also not narrowly tailored to any compelling state interest
(Fairhurst,3)
Excerpt 4.3 (Johnson,7)

The weighty record of history, overwhelming societal consensus, and the
strong force of legal authorities from Washington courts and its legislature,
as well as from the United States Supreme Court, do not allow such a cava-
lier and arbitrary redefinition of marriage by acourt.
A second discourse device that judges used was to quote the words of what
another judge had written in his or her opinion. Quoting anothers words
often referred to as the use of reported speech, even if the medium is writing
(Buttny 2004; Clift 2006)not only represents anothers words but allows com-
municators, by virtue of a quotes selected packaging, to convey an attitudinal
stance toward what is being reported. Reported speech makes use of several dif-
ferent formats. In analyzing newspaper reports Smirnova (2009)distinguished
between liberal, where the gist of a persons remark is summarized, and literal,
where quote marks are used. Judges used both formats in their opinions.
In Excerpt 4.4 we see plurality opinion-writer Madsen using a liberal
quote and expressing incredulity of dissent-writer Fairhursts view by virtue
of describing it as astonishing. In legal settings, decision making is ideal-
ized as a process in which statutes and case precedent are applied to facts.
Conclusions are expected to be valid, not astonishing. To describe anothers
assertion with this or related words (e.g., surprising) is to assess the expres-
sion as problematic.

Justice Fairhursts dissent proposes, nevertheless, that there is a fundamental
right to marry a person of the same sex. This is an astonishing conclusion,
given the lack of any authority supporting it; no appellate court applying a fed-
eral constitutional analysis has reached this result. (italics on no in original)
Reported speech, one could say, is the coin of appellate opinions. Judges not
only directly quoted other members of their own court but quoted judges from
many other courts. In Excerpt 4.5, concurrence-writer Johnson uses an extreme
case formulation, quotes two different judges, and makes clear his rejection of
fellow Justice Madsens words about history and tradition by linking her words
to an Orwellnovel.
However, there is no basis whatsoever to conclude that same-sex mar-
riage is historically fundamental in the sense that it does belong, of right,
to the citizens of all free governments; Corfield, 6 F. Cas. at 551 .Nor
is Justice Madsens claim that history and tradition are not static, [page
citation] at least outside the context of a George Orwell novel.
Excerpt 4.5 also illustrates a third strategy used by justices to represent

fellow judges opinions negativelythe putting of scare quotes around a word
to signal skepticism. Scare quotes have several meanings, but a frequent one in
writing, as well as in speech when performed with hand gestures, is to signal
skepticism. In putting scare quotes around marriage, Johnson signals his skep-
ticism that same-sex marriage deserves to be called marriage.
Other devices besides scare quotes can convey that a writer is skeptical
of an assertion. Another common one (Pomerantz 1989) is to preface what
another said with adverbs (supposedly, allegedly, purportedly). Reporting
anothers statement straightforwardly conveys an authors belief in what the
other has said; including this type of adverbial marker conveys distance and
skepticism. Excerpt 4.6 combines scare quotes with an adverbial marker of
skepticism to convey Fairhursts disbelief of Madsens claim that case law con-
trols the interpretation that Madsen is arguingfor.
Excerpt 4 6 (Fairhurst,12)
Yet, Justice Madsens plurality opinion reverses those trial courts based on
[t]he case law that purportedly controls our inquiry. Neither an objec-
tive analysis of relevant law nor any sense of justice allows me to agree with
the plurality.
Aphorisms about definition proclaim that a definition is an incipient prop-

osition, and to choose a definition is to plead a cause (Zarefsky 1998, 1). These
aphorisms point to the fourth strategy used in judicial opinion-writing:using a
focal term and presuming the definition that advances ones position.
During oral argument judges and attorneys in most of the courts regularly
did this for the term marriage. The side favoring extending marriage to same-sex
couples defined marriage as an intimate bond between two people who love each
other; those opposing marriage between same-sex partners treated one man
one woman unions as core to marriages meaning. Schiappi (2003) has shown
how battles about what are desirable political actions with regard to art, wet-
lands, and rape are argued by defining these terms in self-advantaging ways.
Definitions reflect shared understandings, but they are both the product of
past persuasion and a resource for future persuasion (167). In Excerpt 4.5, we
saw a majority voter problematizing a dissenting opinion-writers view of mar-
riage. In Excerpt 4.7, we see how such definitional presumption works. Justice
Chambers sets up the issue facing the court presuming the meaning of marriage
is a legally recognized commitment between two people who love eachother.
Excerpt 4.7 (Chambers,9)
The proper question is whether marriage is a fundamental right that
belongs to each of us by reason of our citizenship. Our founders would
have answered that question with a resounding yes! Having determined
that marriage is a privilege of citizenship, the next step is to determine
whether the privilege is available to all on equalterms.
In addition to discourse strategies that are used in many personal and institu-
tional contexts to present others actions or opinions as wrong (and self as right)
were four practices that derive their meaning from the appellate law context.
Appellate Law Grounded Practices
Some appellate-specific strategies were used by opinion-writers in all camps;

others were used only in dissents. The two strategies used by all Ihave labeled
The Law Demands (Prohibits) and Others Have Misguided Motives.
Two strategies used only by the justices in dissenting opinions were Shifting
the Burden of Proof and WRWPWhats Right Will Prevail.
Justices are the interpreters of the law, which itself could be described as
a vast set of texts that include state and federal constitutions, statutes, and the
many appellate case rulings that have occurred in federal and state courts. In
their opinions, judges frame themselves as spokespersons for The Law.3
The Law Demands (Prohibits) Drawing on Goffmans (1981) notion of
footing, judges written discourse downplays their authorship of the sentiments they
present and frames their expressions as dictated by the institution of The Law.
But as the law includes many pieces, there is considerable elasticity in what the law
demands or prohibits. In this dispute about same-sex marriage, opinion-writers
tended to highlight two different domains of the law. The justices who wrote opin-
ions supporting the majority vote to uphold the DOMA statute as constitutional
drew attention to the boundaries of judicial responsibility relative to the legis-

lature. Their job as judges, they espoused, was to interpret the law; they did not
have the right to create policy. Excerpts 4.8, 4.9, and 4.10 illustrate the particulars
of how each opinion in the majority discursively worked to frame the law as
requiring upholding the constitutionality of WashingtonsDOMA.
The state constitution and controlling case law compel us to answer yes,
and we therefore reverse the trial courts. In reaching this conclusion, we
have engaged in an exhaustive constitutional inquiry and have deferred to
the legislative branch as required by our tri-partite form of government.
Excerpt 4.9 (Alexander,1)
Have the petitioners met their burden of overcoming the presumption that
this statutory provision is constitutional? The answer to both questions is
clearly no, If we were to conclude otherwise, as do the dissenters, we
would be usurping the function of the legislature or the people as defined
in article II of the constitution of the state of Washington.
This is a difficult case only if a court disregards the text and history of the
state and federal constitutions and laws in order to write new laws for our
States citizens. Courts are not granted such powers under our constitu-
tional system. Our oath requires us to uphold the constitution and laws,
not rewritethem.
Dissenting opinion-writers, likewise, framed themselves as speaking for the

law and doing what the law required. For them, however, the part of the law
to which they drew attention was the appellate courts responsibility to protect
the civil rights of its citizens. Excerpts 4.11, 4.12, and 4.13 from the dissenting
opinions evidence this discoursemove.
Excerpt 4.11 (Chambers,2)
Our constitution demands a deliberative process. We should not abdicate
our responsibility to interpret Washingtons constitution to the judicial
branch of a different government, letalone defer to an interpretation of a
different clause of a different constitution.
Excerpt 4.12 (Bridge,14)
It is not only our prerogative, but our duty under the tripartite system
of government to provide prompt relief for violations of individual civil
rights.
Excerpt 4.13 (Fairhurst,3&7)
The plurality uses the excuse of deference to the legislature to perpetu-
ate the existence of an unconstitutional and unjust law. I dissent.
The plurality shirks its responsibility to the people of this state to enforce
the rule of law embodied in our constitution and to uphold the fundamen-
tal principles of justice.
For the most part, judges treated their own interpretation of The Law
as a straightforward, unproblematic reading that would be expected of any
competent legal reader. The one exception to this was the occasional comment
in dissenting opinions that cued the law might involve competing principles.
This competition of principles was rarely explored in detail; rather, it was
cued through subtle wording choices that pointed to the inappropriate choice-
making of the judges who decided differently.
The plurality too easily dismisses the proper role of the judiciary to protect
the constitutional rights of those who have been historically disenfran-
chised from the political process.
Excerpt 4.15 (Fairhurst,fn16)
The plurality focuses too greatly on the deference afforded by rational basis
review and in doing so, conducts no real analysis atall.
In sum, opinion-writers positioned themselves as spokespersons for the

law, as merely doing what it required. At the same time that they engaged in this
discourse move, they used another one:accounting for why equally competent,
expert others could arrive at an opposite position.
Others Have Misguided Motives. Gilbert and Mulkay (1984) studied
how biochemical scientists talked about their own research and that of scien-
tists who were making competing claims. In discussing their own work, scien-
tists used an empiricist repertoire. Scientists referred to their own laboratory
actions and reports as simply doing science; they were following protocols,
just letting science reveal itself. However, when scientists discussed the claims
of disputing others, they used a contingent repertoire:Other scientists differ-
ing claims were caused by those scientists being inappropriately involved:not
comfortable with being wrong, overly ambitious, simply sloppy, and so on. The
reason they arrived at the decisions they did was because of their own personal
motivesi.e., contingent factors, not the unfolding of real scientific knowledge.
The laws central issue differs from that of science, but in both domains
differing opinions among fellow experts is troubling. In appellate opinion-
writing about the constitutionality of existing marriage laws, opposing judges
motives were framed as misguided, interfering with a reasonable reading
of the law for one of two reasons. The first reason, used by judges in the
majority to problematize dissenters voices, was to attribute a political com-
mitment. Dissenting judges were framed as being activists, as using the law
to further their own political commitments rather than, as judges should,
applying the law in a neutral, objective fashion. Opinion-writers conveyed a
negative assessment of their colleagues by the language they used to describe

what courts should or should not do. Concurring Justice Johnson wrote the
following:
Conversely, where courts attempt to mandate novel changes in public pol-
icy through judicial decree, they erode the protections of our constitutions
and frustrate the constitutional balance, which expressly includes the will
of the people who must ratify constitutional amendments. Examination of
history and tradition is therefore necessary to identify fundamental rights
as the basis for judicial decision-making. This inquiry must not hinge upon
the judges subjective feelings but must be based upon objective consider-
ation of historical understanding.
Policy preferences of judges must not be advanced through the guise of
newly created rights grounded in fads of political correctness.
The plurality opinion by Justice Madsen, likewise, presented the dissenting

opinions as motivated by a political, social change agenda.
Justice Fairhursts dissent declines to apply settled principles for reviewing
the legislatures acts and instead decides for itself what the public policy of
this state should be. Justice Bridges dissent claims that gay marriage will
ultimately be on the books and that this court will be criticized for having
failed to overturn DOMA. But, while same-sex marriage may be the law at
a future time, it will be because the people declare it to be, not because five
members of this court have dictatedit.
The inappropriate motives that led Justices in the majority to their opinions
were the judges bigotry and prejudice. But in contrast to majority opinions
that stated or implied political motives of the dissenting judges relatively
straightforwardly, accusations of prejudice were more indirect. The negative
motives or actions were named, but less clearly and more distantly linked to the
judges themselves.
Excerpt 4.19 (Fairhurst,2)
The plurality and concurrence condone blatant discrimination against
Washingtons gay and lesbian citizens.
Historical ignorance and discrimination cannot be used, as the plurality
does, as an excuse for continued denial of the fundamental right to marry
and the liberty interest in choosing an intimate partner.

The passage of time and prudent judgment revealed the folly of Bowers a
mistake born of bigotry and flawed legal reasoning.Alas, the same will be
said of this courts decisiontoday.
Majority opinion-writers, as we saw, carried out similarly in a dissent opinion-

writers response to Excerpt 4.1, and had no trouble recovering the challenge
to their motives.
We vigorously reject any attempt to link the discriminatory anti-
miscegenation laws in Loving [US Supreme Court case overturning state
laws forbidding interracial marriage] with this StatesDOMA.
Favoring prejudiced laws or being a political activist were the main chal-
lenges made to judges motives, but they were not the only ones. Descriptions
of disagreeing judges positions routinely included modifiers such as disingen-
uous, imprudent, abhorrent, and disturbing that also cued questionable
motives. In addition, although not common, judges directly described others
actions in highly unflattering ways: Justice J. M. Johnson resorts to name-
calling in an effort to refute this point (Madsen, 27fn9).
One of the most subtle ways that judges motives were challenged was to
praise others who also disagreed. In her dissent, for instance, Justice Bridge
names the lower court judges who had written opinions overturning existing
marriage laws, commenting that they are to be commended for their uncom-
mon courage and common sense in facing this issue (Bridge, 67). In praising
the lower court judges, Bridge can be seen as implicitly criticizing the majority
for its lack of courage.
Shifting theburden ofproof. The last two strategies were ones employed in
dissenting opinions. That these strategies were restricted to dissenting opinions
follows from the different legal standing of the majority/plurality opinion versus
dissents, at least for this issue.4 The majority gets to define what the legal issues
of a case are; a dissent can only call into question the decisions framing. Burden
of proof, an idea drawn from Richard Whatley, is a crucial one in the legal arena.
In large measure, the party in a dispute who has the burden of proof, the one
responsible for providing evidence to support a claim, is more likely to lose a dis-
pute. For many matters in the law, the level of the burden of proof (e.g., beyond a
reasonable doubt vs. preponderance of evidence) and which party has the burden
are clearly spelled out. Because a greater number of principles apply in constitu-
tional law disputes, who has the burden and exactly what the burden entails are
more complicated to determine. As Gaskins (1992, 3)notes about both contem-
porary public and legal argument about contentious issues, shifting the burden
of proof to our opponents becomes an irresistible argument strategy.
By virtue of their five votes, the plurality and concurrence won the right to
define the key legal question. Thus, it was the dissenting opinions that first sought
to shift the view of who had to persuade whom. The dissent sought to make the
state responsible for showing it had a rational basis for excluding same-sex couples
from marriage rather than what the majority framed as the issue:the gay plaintiffs
showing adequately why the state was unfair to limit marriage to opposite-sex
couples. We first saw this in Excerpt 4.7; Excerpt 4.23 also illustrates this strategy.
But DOMA in no way affects the right of opposite-sex couples to marry
the only intent and effect of DOMA was to explicitly deny same-sex cou-
ples the right to marry. Therefore, the question we are called upon to ask
and answer here, which the plurality fails to do, is how excluding commit-
ted same-sex couples from the rights of civil marriage furthers any of the
interests that the State has putforth.
Justice Madsen, the plurality opinion-writer, in fact, calls Justice Fairhurst on

her attempt to shift argumentative responsibility, framing her move as distort-
ing the expected judicialtask.
Excerpt 4.24 (Madsen, 6fn2)
Justice Fairhursts dissent attempts to shift the focus from whether limit-
ing marriage to opposite-sex couples furthers these interests to whether
excluding same-sex couples furthers these interests. By doing so the dissent
fails to give the legislature the deference required under the constitution.
Should the plaintiffs have to show that the state was being unreasonable
in its laws about marriage or was it the states responsibility to make a case for
why it is reasonable to exclude same-sex couples from marriage? Judges dis-
agreed. Those with power had the right to label their colleagues different focal
question as inappropriately shifting the burden of proof.
WRWPWhats Right Will Prevail. A final strategy used only by dissenting
judges was to project that in the historical long run, their opinions would be proven
correct and that their view would come to prevail. WRWP is the legal counterpart
to what scientists use in the midst of disputes. Gilbert and Mulkay (1984) describe
the interactional strategy that scientists on the losing side use as Truth will out
device (TWOD). In contrast to truth, the main currency of science, it is justice
and what is socially and morally right that is at stake in legal disputes. Dissenting
judges can assert that future courts will come to see their views as whats right. In
the conclusion of her dissent Justice Bridge performs this action.
Future generations of justices on this court and future generations of
Washingtonians will undoubtedly look back on our holding today with
regret and even shame, in the same way that our nation now looks with
shame upon our past acts of discrimination. Iwill look forward to the time
when state-sanctioned discrimination toward our gay and lesbian citizens
is erased from our states law books, if not its history. Idissent.
The Washington Court opinions were strikingly different from the unani-
mous Iowa Court opinion. Consider what the main differenceswere.
Iowa Supreme Court and Varnum v.Brien
The seven-judge Iowa Supreme Court heard oral argument in December 2008
and released their 69-page, 33-footnote unanimous opinion in April 2009.5 Of
note, the Iowa court reached the opposite conclusion from Washington. Iowas
Supreme Court decision overturned marriage restrictions and made marriage
legal between same-sex couples. In the three years between the Washington
decision and the Iowa one, two other state supreme courts (California and
Connecticut) had made decisions supporting same- sex marriage, although
Californias was overturned several months later following passage of Prop 8,
the constitutional amendment restricting marriage to one man and one woman.
The Iowa courts decision was unpopular with state citizens. A footnote
in the opinion makes visible that its justices were aware that their decision was
likely to engender a negative response.6 Citing a recently conducted survey in
a major Iowa newspaper, the footnote acknowledges that only 28% of Iowans
support same-sex marriage (64, fn 29). The argumentative thrust of the opinion
is to document why the court was compelled because of its commitment to the
Iowa Constitution to make a decision that it knew would make many of its
citizens unhappy.
The court opinion, written by Justice Cady, opens with two sentences;
the first one describes the legal dispute and the second announces the court
decision:
Excerpt 4.26,6
In this case we must decide if our state statute limiting civil marriage to
a union between a man and a woman violates the Iowa Constitution, as
the district court ruled. On our review, we hold the Iowa marriage statute
violates the equal protection clause of the Iowa Constitution. Therefore,
we affirm the decision of the districtcourt.
In the Iowa opinion it was the Court that spoke. In the 64-page opinion,
no judge is ever mentioned by name, whereas in Washingtons 62-page plurality
opinions, dissenting judges are mentioned by name 18 times. The Iowa Court
announces what the court or we think; it unpacks our reasoning and the
decision that faces us. The token our, in fact, is used 74 times in the opinion
compared to Washingtons 24 (3.5 vs. 1.5 words per 1000 words). Excerpt 4.27
illustrates one especially dense segment of collective reference form use. After
providing multiple examples of how Iowa had led the United States in extend-
ing rights to discriminated-against group (e.g., allowing women to practice law
25years before the US Supreme Court mandated it), the opinionnotes:
Excerpt 4.27,18
In each of those instances, our state approached a fork in the road toward
fulfillment of our constitutions ideals and reaffirmed the absolute equal-
ity of all persons before the law as the very foundation principle of our
government. See Coger, 37 Iowa at 153. So, today, this court again faces an
important issue that hinges on our definition of equal protection. This issue
comes to us with the same importance as our landmark cases of thepast.
In Iowas opinion, the judges were of one mindor at least sufficiently

close to express themselves as single-voiced. By speaking unanimously about
what the law and justice demanded, the Iowa Court sidestepped the identity
challenges that could not be avoided in Washington.
John Marshall, perhaps the most influential Chief Justice of the US
Supreme Court, who served between 1801 and 1835, sought to build a col-
lective front for the court. During the 34 years he served as Chief Justice,
Marshall wrote only eight dissenting opinions and of these, only one was on
a constitutional issue. The Marshall Court spoke with unanimity for many
years across many cases. In the first seven years of his court there was only a
single dissent; in his last six years the rate of dissent remained low, although it
had risen to 9.4%. These single-digit rates are a sharp contrast with the dissent
rates for Chief Justices Earl Warren (19531969), Warren Burger (19691986),
and William Rehnquist (19862005), all which were around 60%.7 The high
amount of unanimity in the early US Supreme Court, Dickson comments
(2001, 13), helped the Justices to claim that they were an apolitical institution
that merely found the law and applied it in an objective manner. Unanimous
opinions help courts establish that they are apolitical institutions, but such an
outcome is unlikely when the issue a court is considering divides society.8
Concluding Thoughts
Texts of judicial opinions are full of the voices of others. Always present are the
voices of judges from other times and other courts. When a case involves a close
vote about a contentious issue accompanied by no agreed-upon reasoning,
considerable discursive work needs to be done to evidence that the views of dis-
agreeing colleagues are in error. Some of the strategies employed are particular
to the appellate context; others are inflected by the site and a disputing judges
position but can be found whenever parties engage in strong disagreement.
PARTTWO
Discourse inJudicial
Committee Hearings
5
The Legislative HearingGenre
To make a law is not just to exercise power, it is (so to speak) to make a

public morality for a particular community, something which purports to
have the status among people that moral principles have in their individual
consciences. [Legislatures] enable rival views to come together and
confront one another in debate so that all of those involved in lawmaking
hear all that is to be said against as well as all that is to be said in favor of
the legislative proposal that is before them (Waldron 2006, 21,26).
Whether marriageor the rights of marriage without the nameshould be

extended to gay and lesbian couples has been contentious in the first decade
and a half of 21st-century America. This contention was displayed in hearings
in which large numbers of ordinary citizens testified why gay couples should or
should not be able to marry in theirstate.
In this chapter, Ilook closely at six hearings held by judicial committees
of state legislatures to consider changing their states law regarding who should
have the right to marry. In these hearings, large numbers of citizens testified
for and against changing their state law about marriage.1 The chapter begins by
describing what we know about the genre of legislative hearings. Then Iprovide
specifics about the six marriage law hearings and show that what we usually
think of as context significantly shaped the content and style of this genres
talk. The participation strategies and possibilities of testifiers on different sides
of the issue were affected by the hearings design. The hearings context, in
itself, advanced a position toward same-sex marriage.2
Background onLegislative Hearings
During oral argument in the state supreme courts, a claim advanced by state
attorneys was that the legislative branch should be making the decision about
marriage lawsnot the courts. Soon after the first few court opinions were 89
90 Discourse in Judicial Committee Hearings
released, several state legislatures began to consider whether their marriage

laws should be revised.
Legislative bodies are home to many speech genres. One particularly impor-
tant one is the hearing held by a committee of the larger body to investigate a
topic and propose legislation. In commenting on the activities of the US House
of Representatives, Woodrow Wilson commented that the House legislates
in its committee-rooms.3 A study of 30 years (19702000) of congressional
hearings regarding constitutional issues found that of all types of commit-
tees, judiciary committees held the largest number of hearings. Specific top-
ics of constitutionally focused hearings included such issues as constitutional
amendments and decisions bearing on the separation of powers. An especially
frequent focus concerned rights and liberties:Should a particular category of
person be given or denied a right?4 Whether marriage should be extended to or
withheld from same-sex couples is an example of such a person-rightsissue.
Person-rights issues, and therefore the hearings about such issues, pos-
sess features that distinguish them from hearings about technical issues, such
as bankruptcy law or environmental disputes. Person-rights issueswhether
the issue be abortion, immigration, the death penalty, or same-sex marriage
concern issues about which everyone feels entitled to judge. To be sure, techni-
cal and person-rights issues are not mutually exclusive; each category of issue
includes aspects of the other. But what is at the center of a person-rights issue
is a matter about persons and the character of a society. This is an issue about
which most people feel competent to form an opinion and speakout.
Legislative hearings have multiple purposes. The official one is for the leg-
islators to gather information about a delimited topic to inform policymaking
and the construction of laws. However, a hearing is also a place for legislators
to display that they are representing their constituents in an accountable if not
exemplary fashion, and they are places for committee chairs to show their lead-
ership qualities and political savvy.5 For citizen testifiers, a hearings purpose is
to persuade legislators to take a testifiers preferred course of action. Testifiers
do this through logical argument and passionate expression, and by the weight
of their voice as a for or against on the issue being debated. In contrast to
hearings at the federal level where participation is highly restricted, state legis-
lative hearings often are open to any person who wants to speak. Such was the
case in most of the state marriage law hearings.
A hearing genre can be conceptualized at several levels of abstraction. At
the most general level is the hearing itself, which is comprised of (a)opening
remarks, which include a welcome and an explanation of the occasion and
its ground rules, (b) testimony interspersed with question-answer exchanges
between the committee and selected testifiers, and (c) committee discussion
and a vote, which may occur immediately or at a later meeting. Amore spe-
cific genre embedded in hearings is the activity of citizen testimony. Citizen
testimony in hearings is quite similar in format to the speeches citizens give
The Legislative HearingGenre 91
in other kinds of public meetings, such as school boards and local topic-
focused meetings. Minimally a speaker begins with self identification, makes
an argument for what should happen, and closes with thanks. Following the
presentation a speaker may be questioned but often is not. Simplifying citizen
testimony to this bare-bones structure, though, takes attention away from the
identity-work that testifying is performing and how it relates to particularities
of a hearings context.
The Role ofContext
The notion of context is important in understanding genres as the context

shapes what actually is said within any particular genre, as well as how what
is said is evaluated (Bhatia 2010). In argument studies versus discourse stud-
ies, the concept of context has different meanings. The different definitions,
Iwill show, can be made complementary, giving us a useful way to reconstruct
the interactive problems in public hearings faced by both legislative planners
and citizen participants.
In argument studies, context is the category of situation in which argu-
ment is occurring. Argument theorists have long recognized that there are dif-
ferent contexts for argument. Acontext does, and rightfully should, shape what
would be regarded as reasonable conduct. Van Eemeren and Garssen (2009)
refer to contexts as activity types; Walton (1989) calls them dialogue types;
and Toulmin (1958) labels contexts as argument fields. Scholars mean slightly
different things by their terms, but all of them adopt a container-like view of
context in which contexts have particular purposes and ground rules. As such,
argument studies assumes that the talk/writing is the argument, and that the
contexts role is to frame which assessment criteria should apply to evaluating
the quality of argumentation.
The purpose in identifying the context within argument studies is to rec-
ognize that criteria for good argument need to take account of a communica-
tion scenes focal commitments. Argument in scientific fields, as Toulmin (1958)
would note, should use different standards than those in the law. Similarly, a
critical discussion of immigration between two friends should be held to dif-
ferent standards than would apply if the issue were discussed in the European
Parliament (van Eemeren and Garssen 2009). From a broader perspective,
Kock (2009a and 2009b) highlights the importance of distinguishing contexts
that focus on determining what is true, such as occurs in science and philoso-
phy (i.e., theoretical argument contexts), from practical argument contexts that
occur in institutions where people are working to select wise courses of action.
Among argument scholars, Walton (1989) has identified the largest num-
ber of distinct argument contexts, or in his words, contexts of dialogue. He
distinguished more than 10 dialogue types, separating them from each other in
terms of their goals, initiating situations, and the benefits that arise from each
argument type. In his system, persuasive dialogues differ from dialogues of
debate, inquiry, expert consultation, or negotiation. In debate, for instance, the
situation is an adversarial one in which speakers work to persuade a third party
with an end goal of increasing and sharing information.
From an argument theory perspective, public hearings held by legislative
bodies would be conceived as a distinct argument context. They are a practi-
cal argument context (i.e., directed toward choosing a preferred action) rather
than a theoretical one; a hybrid dialogue of persuasion, debate, and inquiry;
and a unique activity type differing from the other political ones that have been
studied (e.g., debate in parliament: van Dijk 2004; van Eemeren 2010). In a
public hearing held by a legislative body, the focal speakers and the parties
they address are bound together in a loosely tethered but complex relation-
ship. Elected officials get to assess citizens arguments about a proposal, while
citizens get to assess (through subsequent voting) whether elected officials have
chosen wisely about the proposal.
Among discourse analytic (DA) scholars, however, context is used to do
different things. Within discourse analysis, context has been the focus of signifi-
cant reflection and debate. Multiple books (Auer and di Luzio 1992; Duranti
and Goodwin 1992; van Dijk 2008)and special issues (Tracy 1998)have been
devoted to analyzing exactly what context is and which view of it is most useful.
Differences among discourse researchers are many. When compared to argu-
ment scholars, however, DA traditions are (a)attentive to talk serving multiple
functions, rather than focusing solely on talks reason-giving and -assessing
functions, and (b)primarily concerned with describing how discourse practices
work, rather than aiming to advance a normative assessment.
Whatever flavor of discourse study one examines, an assumption shared
by all is that meaning-makingwhat a speaker intends and what a recipient
interpretsdepends on the talk (text) and the larger surrounding situation,
that is, its context. But the aspects of situation that are given attention in analy-
sis differ widely. Should context be restricted to immediately prior and subse-
quent utterances, talk-intrinsic context, as Schegloff (1992) would argue? Or
is context something best conceptualized as outside of talk? If it is conceived as
what is outside talk, should its focus be on the participant roles, speech activity
type, and the physical design of a situation, or should context include the larger
historical and societal picture? Finally, is context the name for situational fea-
tures of the world or is it better thought of as a facet of cognition, existing in
peoples minds, and hence individually built and varying across interpreters
(van Dijk2008)?
Within the DA tradition, frame is often used as a synonym for context
(Agne 2007; Sanders 1997), and the term references a social situations under-
stood meaning and purpose. What frame contributes to context is that it can
easily become a verb, framing, where the focus is on what the parties are doing
to define a situation as a particular kind. At its simplest, then, context is a matter

of foreground and background. The context is the bits of talk or social life that
an analyst brings to bear to understand the focal discourse. Naming of situation
types is less important than identifying which meaning-shaping factors are at
work in particular scenes. DA scholars are interested in specifying how the iden-
tified contextual features are affecting the interpretation and expression oftalk.
In sum, in argument studies, context is treated as a synonym for genre
where the genre determines what criteria should be applied to assess argu-
ments as strong or weak, good or bad. In DA, in contrast, the context is the
situational frame, the combination of interaction design and discursive choice
features that give the situation its unique character, thereby shaping the ways
communicators express selves.
The Six Marriage Law Hearings
The six marriage law hearings occurred over a five-year period. The first hear-
ing, occurring in December 2006, was held in New Jersey by the Assembly
Judiciary Committee. Several months earlier, the New Jersey Supreme Court
had ruled that the states existing marriage law was unconstitutional because
it denied its gay citizens equal rights under the law. The court ordered the leg-
islature to extend the rights of marriage to these citizens but left it up to the
legislature to decide what to call the unions. The bill that the judicial committee
heard testimony on proposed extending the rights of marriage to gay and les-
bian citizens, but called the relationships civil unions. Fifty-one citizens testi-
fied in the hearing, with 39 arguing in favor of granting full marriage rights.
The second hearing, occurring in February 2008, was the last of eight hear-
ings held in different towns across Vermont. The Vermont Commission on
Family Recognition and Protection was established by a joint action of Vermonts
Speaker of the House and Senate President. The 11-person Commissions aim
was to evaluate the fairness of the states existing law that allowed civil unions
between same-sex couples but restricted marriage to opposite-sex partners. In
essence, the Commission was asked to assess whether the distinction was a fair
one and if it was adequately protecting the rights of same-sex couples and their
families. Should the state revise its law and give same-sex couples the right to
marry? At this eighth hearing, 39 people testified in favor of gay and lesbian
citizens being permitted to marry and three people testified againstit.6
The third hearing, in February 2009, was held by Hawaiis Senate Judiciary
Committee and lasted 18 hours. The hearing issue concerned whether the state
should approve a law giving its same-sex couples the right to form civil unions.
These unions would include all of the legal rights of marriage but not the
name marriage. Of the testifiers, 100 spoke against the bill and 76 spoke in
favorifit.
The fourth hearing, held in Iowa on a snowy evening in January 2011,

took testimony before a joint meeting of the House and Senate regarding a
bill that was to be the first step in passing a constitutional amendment that
would define marriage as the union of a man and a woman. This resolution,
which would need to be passed for two consecutive years by the legislature
before it received a popular vote, occurred after the Iowa Supreme Court
declared that restricting marriage to heterosexuals violated the existing state
constitution. In setting this amendment process in motion, the legislature can
be seen as expressing displeasure with the decision of their supreme court.
The hearing included 20 people testifying for the constitutional amendment
and 20 againstit.
The fifth hearing, occurring in February 2011, was held by the Judiciary
Committee of the House of Representatives in Rhode Island. This hearing
involved consideration of two bills. The first bill proposed to extend full mar-
riage equality to Rhode Islands gay and lesbian citizens. The second bill pro-
posed allowing citizens to decide the issue through a popular vote. The hearing
lasted eight and a half hours with 67 people testifying in favor of same-sex
marriage and 41 againstit.
The sixth hearing, held in March of 2011, was convened by the Colorado
House Judiciary Committee to consider a bill to extend civil unions to its
gay citizens. At the same hearing, an amendment to send the issue to the
people for a popular vote was also being discussed. The Houses hearing fol-
lowed soon after a hearing held by the Colorado Senate Judiciary Committee
which had approved moving the bill out of committee to the full Senate for
a vote. The House Judiciary Committee heard testimony from 79 people (61
for, 18 against) for 7.5 hours and then voted against the amendment as well
as against advancing the bill to the full membership. Table 5.1 provides an
overview of the hearings.
TABLE5.1
Overview ofthe Hearings
State New Jersey Vermont Hawaii Iowa Rhode Island Colorado
Date 12/11/2006 2/11/2008 2/24/2009 1/31/2011 2/8/2011 3/31/2011

Bill ASS-3787 Report to HB444 HRJ-6 HB5012, SB11-172
Judiciary HB5260 L.018
Committees*
Length 3.6 hrs 2.6 hrs 18 hrs 2.4 hrs 8.5 hrs 7.5 hrs
Data Audio Video Video Audio Video Audio
Total 52 42 176 40 108 79
Speakers
Pro-SSM 39 39 76 20 67 61
Anti-SSM 13 3 100 20 41 18
Note:SSM, same-sex marriage.

Context Features Affecting Citizen Testimony
The speakers in these six hearings were speaking in the same argument con-
text. All were making arguments for or against same-sex unions in legislative-
sponsored public hearings. Yet when we attend to the design and management
of the hearings the actual situated context striking differences existed.
Certain design and management choices made it easier (or more difficult) for
speakers arguing one of the positions to express themselves cogently. Stated
simply, each hearing context not only hosted people developing arguments
about same-sex marriage but itself made an argument about the issue. Three
features of context were particularly important.
ISSUE FRAMING
The way the issue about same-sex marriage was formulated shaped the amount
of argumentative work that speakers needed to do. Some formulations favored
same-sex marriage, whereas others implied its unreasonableness. Of the six hear-
ings, Vermonts issue formulation was the most positive toward same-sex mar-
riage. Rather than using the advocacy-debate frame employed by the other states,
Vermont framed its hearings focal purpose as assessing whether the state had
adequately addressed its prior problem of delivering equality to same-sex couples.
That the Vermont 2008 hearing selected a problem-solving rather than a debate
frame is evident in the commissions name, Vermont Commission on Family
Recognition and Protection and its espoused mission:to consider whether the
states civil unions bill, which provided equal legal rights without the name of
marriage, was insuring equality. To further solidify the problem-solution frame,
the hearing began with a 45-minute presentation by the commission chair and
associated legal staff narrating Vermonts history from 1990 to the present regard-
ing how Vermont law had been changing to recognize rights of gays and lesbians
in a variety of areas (e.g., adoption, legal recognition of committed relationships).
With such a frame, we could say that the citizens most credentialed to tes-
tify were persons directly affected (or closely connected to others affected) by
the existing law which provided many of the rights but not the name of mar-
riage. The speakers in this hearing, in fact, were predominantly promarriage
equality (39 vs. 3)and tended to be gay men, lesbians, or family members of
gays and lesbians. That the hearing issue was formulated to disadvantage views
against same-sex marriage was commented upon by one of the few same-sex
marriage opponents. Hesaid:
Excerpt 5.1 (Vermont)
Thank you for the opportunity to speak. Ihave personally debated ((clears
throat)) whether or not to attend one of these hearings and express my
views ever since the biased make-up of this committee was publicized a
year or so ago. It would be interesting to see what the public reaction

would have been had the makeup of the committee been 100% against
homosexual marriage and 0% for it. My guess is that the ACLU, NEA,
national GLBT, and other extremist groups would have strongly protested
that the committee is totally biased.
This Vermont citizens description of the committee being biased was

not evident in the talk of the hearing. With the exception of the hearing chairs
opening comment, in which he gave background on civil union laws in the state,
none of the commissioners spoke other than to offer respectful acknowledg-
ment of speakers. Rather, the citizens comment seems tied to his assessment of
the committee members outside identities. Committee members were clearly
from the elite in the statea former governor, several House representatives
and senators (current or past), a minister, business owner, a college president.
Whether all these people were politically liberal, Ido not know. My own sense
is that the speakers charge that the commission members were biased can be
understood in terms of the hearings problem-solution framing, which made
arguing against gay and lesbian rights quite difficult.
In contrast, the other five legislatures formulated the issue as a bill to be
debated. Framing same-sex marriage legislation as a debatable issue legitimizes
opposing positions more than does a problem-solving frame (Craig and Tracy
2005), but exactly how the debatable issue is formulated also will contribute to
the (de)legitimation of particular positions. Among the other hearings, Iowas
formulation was most negative toward same-sex marriage, as it sought to take
away a right. In Iowa, the bills purpose was to create a constitutional amend-
ment that defined marriage as the union of one man and one woman, hence
making same-sex marriage illegal. In New Jersey, Hawaii, and Colorado, the
proposals were to recognize same-sex couples relationships through civil unions,
thus legitimizing gay couples entitlement to many of the rights of marriage. In
Rhode Island, it was to extend the full rights of marriage to gays and lesbians.
In addition to what is proposed by a bill, what is understood as a primary
alternative, established by a states legislative history, affects a hearings lean-
ing. As Hawaii and Colorado had statutes defining marriage as one manone
woman, the alternative to civil unions was the status quo. In New Jersey, because
the legislature had accepted the court mandate to extend the rights but chose to
withhold the name, the main alternative being debated was full marriage equality.
A final feature of issue formulation concerns whether a bill stands alone as
the focus of attention or is paired with a second bill offering a competing way
to solve the conflict. In Vermont, New Jersey, and Iowa, only a single bill was
being considered, but in Colorado and Rhode Island, the hearing included two
opposing motions. In Colorado, part of the discussion was related to a possible
amendment to be given to the voters rather than having the legislators decide.
In Rhode Island, there were two distinct bills and each of the proposing legisla-
tors spoke extensively at the hearings beginning. In both states, the discussion
concerned sending the issue of same-sex marriage (RI) or civil unions (CO)
to the public for a vote, rather than allowing elected representatives to make
the decision. The upshot of having the issue of a popular vote as part of the
hearing was that, at least for a dispute about this kind of person-rights issue, it
made it easier for speakers opposing same-sex unions to make their argument
in a way that did not highlight their opposition to gays and lesbians.
In 21st-century America, speakers who argued against legalizing same-sex
unions had to do considerable work in their public expression to show that
their argumentative stance was not a result of bigotry toward gays. Rather than
specifically disclaiming that one possessed these negative sentiments, it was
possible to sidestep the challenge entirely by arguing that one was for democ-
racyletting important issues be decided by the people. Consider how the
Rhode Island representative who proposed that the same-sex marriage issue be
decided by a constitutional referendum justified hisbill.
Excerpt 5.2 (RI, Introducer of Constitutional Referendum HB5260)

[Lets] put it to the people. Let them decide. And ultimately we can put this
question to rest. And we will know what the people of this great state want
as their ultimate definition of marriage. Thats all this is. Um its not intended
to be a defense of marriage act. Its not intendedthere is no nefarious pur-
pose here, other than to say give this right to the people. When Iwas cam-
paigning this summer people asked me where do Istand on this issue? And
Isaid, Am Ipersonally for same-sex marriage? No, Im not. Ive never hid
that, and everyone here, Jim Baron, um anyone-all of my colleagues, they all
know that. But thats not what this is. My constituents asked me where do you
stand? Isaid personally Im not for it, but ultimately Ithink you should have
the opportunity to decide what you want marriage to be. And they said youre
right. Iagree with you on that. And Im gonna vote for you because ofthat.
In Rhode Island, an argument regularly advanced by con-speakers was

that the real issue concerned who should be making the decision about the
definition of marriage. Pro-speakers, in contrast, argued that who should be
allowed to marry was a civil rights issue, and that it was the elected representa-
tives who should be deciding such an issue. In essence, an assumption operating
in both hearings at this historical moment was that if the people could decide
what they favored in private voting, then marriage rights would not be extended
to gay and lesbian citizens.
These aspects of issue formulation(a) problem-solution versus debate
frame, (b) the favorableness of the proposed bill toward a side, (c) the under-
stood contrast to a proposed bill, and (d) the possibility of an alternative deci-
sion mechanism that would allow the dispute to be decided directly rather than
through representatives votingworked to advantage speakers on one side.
Putting all these aspects of issue formulation together, Figure 5.1 displays the
stance each hearings context established toward same-sex marriage.
VT RI NJ HI CO IA
Pro Same-Sex Con Same-Sex

Marriage Marriage
FIGURE5.1 Controversy Formulation byState
HEARINGDESIGN
The second aspect of context that advances arguments toward an issue is the
participation structure of a hearing. As Aakhus (1998, 2001)has shown, the
design of a discussion site can advantage certain parties and points of view. In
these public hearings, four decisions about the enactment of the hearing built
an impression that both sides were being treated fairly or gave evidence that
one side was favored by the legislators. The four factors included (a)whether
the chairs opening remarks explicitly favored a particular side, (b)how speak-
ing turns and time limits were managed, (c)whether the chair acknowledged
speakers on each side in a relatively equal manner, and (d)the frequency and
intensity of questioning of eachside.
Figure 5.2 locates the six hearings with regard to design fairness. As can be
seen, New Jerseys hearing was the least fair in its design, with Rhode Island at
an intermediate point and the other hearings clustering toward the fair treat-
ment end.7 Consider how these features were marked in the hearings running
and related to eachother.
In a chairs opening remarks, the stage is set for a hearing. Through what
is mentioned or omitted in opening comments, a chair can imply whether she
or he sees each side as equally legitimate. In the chairs opening comments of
the Hawaii, Rhode Island, Colorado, and Iowa hearings, there was no sense
of which position chairs favored. In New Jersey, however, the chair began by
announcing her view. She made it clear from the outset that she saw same-sex
marriage as the more reasonable position. Shesaid:
Excerpt 5.3 (New JerseyChair)
Before we begin this hearing, Id like to make a very brief statement. Iknow
that the issue of legal recognition for same-sex relationships is one that
sparks emotional responses from both sides of the debate. Hopefully this
morning well all be able to harness that emotion to have an honest, civil,
and meaningful discussion. It would have been my personal wish to also
be able to hear a bill granting full rights of marriage to same sex couples
today. Um but as chair of this committee, Iwould rather us pass a civil
unions bill that will meet the Supreme Courts mandate in providing equal
rights than have this committee engage in a purely academic exercise that
dies at the, the door step of the full legislature.
A second feature of hearing design that shapes the perception of fair-
ness concerns how time limits are set and enforced. Hawaii and Iowa both
HI IA VT CO RI NJ
Fair to Tilted toward

Both Sides One Side
FIGURE5.2 Hearing Design byState
enacted turn fairness, albeit in different ways. In Iowa, the chair announced a
three-minute time limit at the start, rigorously enforcing it with all speakers.
In addition, speakers were ordered into pro-con pairs with equal numbers
speaking in the restricted time allocated to the hearing. In Hawaii, the chair
instructed speakers to be brief but did not define brief. He allowed everyone
who wanted to testify to do so. Other than reminding testifiers to be brief,
he did not cut speakers off. In addition, although there were more speakers
opposing the bill, the ordering of speakers appeared to be first come, first
served rather than strategic.
In New Jersey, in contrast, the speaking order seemed stacked to advance
the position the chair favored, and opponents were given less time to speak.
The hearing began with a representative of a major New Jersey gay rights orga-
nization, followed by a panel of ministers and rabbis speaking in favor of same-
sex marriage. Notably, of the first 34 speakers, only five spoke against the bill.
In addition, although the chair announced a three-minute limit, she did not
enforce it for most of the first 1015 speakers. The first speaker, for example,
spoke for seven minutes. After the 34th speaker, the chair reduced the speaking
time to one minute. As the majority of the con-speakers spoke later in the hear-
ing, the time restriction affected them more. Seven of the 12 speakers opposing
the bill spoke during the segment of the meeting when the speaking time was
one minute. One speaker testifying against the bill makes a sarcastic comment
about this inequity:
Excerpt 5.4 (New Jersey)

Madam Chairperson and the assembly people, and thanks fer-Ithank you
for staying here and hearing the other side we might say. Um I-Iappreciate
the minute Ive been given. Idid clock your first uh people they were here
for 14 minutes. And the next group of people, they were here for about 20
minutes. So Ijus yeah I-Iunderstand, Ijust-Ijust really appreciate you
hearing me out.
In Rhode Island, the hearing began with careful attention to ensuring

equal speaking rights for each side. The representative speaking for each of the
bills (for marriage equality and for a constitutional referendum) took identical
amounts of time (22.5 minutes) to present and respond to questions. Then the
hearing moved to two panels of experts, one favoring marriage equality and the
second opposing it. These two panels of experts were allowed to speak with no
enforcement of time limits.
However, as the 8.5-hour hearing moved on, the hearings organization

became ragged. Whereas there were no time limits for the first two panels and
the representatives, time limits were thereafter announced, initially for seven
minutes and in the last few hours for 90 seconds. The chair in the Rhode Island
hearing had lists of people who were there to testify, with the lists divided into
proponents and opponents. Although the two people who chaired the meet-
ing made attempts to move back and forth between the lists calling panels of
people on a side, judgments about who would speak next attended to principles
other than simply a speakers place on the list. Other RI House representatives
who showed up at the hearing, as well as select expert others, were allowed
to speak relatively promptly. Ordinary speakers who were children, pregnant
women, or parents needing to get home to their children were also allowed to
jump their allocated testifying place and testify earlier. Of note, more people
favoring marriage equality were treated as experts and allowed to testify earlier
(and hence longer).
In addition, as the day wore on, people who had signed up to testify and
had not yet done so had left the meeting. Because the chair was calling testi-
fiers in groups of three or four persons on a side and many people had left, the
task of determining who should go next became increasingly complex. Of the
108 speakers who testified in the Rhode Island hearing, 67 spoke in favor of
same-sex marriage and 41 spoke against. Those persons who spoke last, a much
higher percentage of them opposing same-sex marriage, had the most restricted
speaking rights. Table 5.2 provides an overview of the distribution of speakers
by their position, as well as the length of their turns for the first, middle, and
last third of the speakers.
During the last third of the Rhode Island hearing, certain segments of the
audience became louder, murmuring remarks that suggested they saw unfair
deference being given to the pro side. Several speakers who argued against
TABLE5.2
Distribution and Length ofRhode Island Speakers byPosition
duringMeetingThirds
Meeting Segments
1st 2nd 3rd
Pro-Speakers 23 27 17
Percentage of Pro-Speakers 34% 40% 25%
Con-Speakers 13 9 19
Percentage of Con-Speakers 32% 22% 46%
Average Speech Length (mins) 6.92 4.37 1.61
Range (mins) 122.5 110.5 .54.0
Note:Timing was assessed to the nearest half-minute, using the running clock
on the digital audio file. Percentages do not add to 100 because of rounding.
same-sex marriage pointed to the unfairness of their treatment. The 88th

speaker who was supposed to restrict his comments to 90 seconds called atten-
tion to others in his category (i.e., medical doctors) being treated as experts and
being allowed to speak much longer.
Excerpt 5.5 (Rhode Island)
I have been a pediatrician in Rhode Island since uh 1988. Ill speak for a
few minutes on behalf of both children and on behalf of fathers. Um, Id
like to make a few comments, um, some of them my medical colleagues
have testified earlier this evening, um and one thing they did not categori-
cally say is, uh, up to this present time there is-there is no gay gene. Uh
it is um, and I-I will say I-Im going to work at 8:30 in the morning. Im
answering the phone at 7 oclock, and I would ask a certain degree of
indulgence here tonight. Um as my other colleagues have plenty of-of time
to discuss medical issues. And thats what Im here to do.
Speaker 88 draws attention to the problem of enacting a decision strategy used

by most democratic governance groups: give greater weight to experts when
they speak about issues within their expertise (Schudson 2006). Although it
may be reasonable to give experts a louder voice than lay speakers on certain
policy issues, if the identification of who is treated as expert appears to use
different criteria depending on the experts position on the controversy, that
choice will be seen as unfair by those disadvantaged.
A third way that a hearing design can (dis)advantage one side is through
what occurs after each speaker finishes. Part of the turn-taking routine of hear-
ings is for a chair to minimally acknowledge a speaker as he or she finishes. The
most common way chairs did this was by thanking the speaker. In Iowa and
Hawaii this was basically the only way that speakers were acknowledged. The
chair in the Colorado hearing acknowledged speakers in a more elaborated
way but tended to do so consistently. In addition to thanking the speaker, the
chair would ask the committee if they had questions and often would wish the
speaker a safe triphome.
Excerpt 5.6 (Colorado)
(a) Thank you Ms. Nash. Uh are there questions for Ms. Nash from mem-
bers of the committee?
(b) Uh thank you Mr. Bano. Any questions for Mr. Bano? Seeing none, we
thank you very much sir. Have a good afternoon (Bano:thank you).
Have a safe journeyhome.
Although the New Jersey chair commonly used a thank you acknowledg-
ment, several times she recognized proponents of same-sex marriage in a fuller,
more personal manner. For instance, following both members of a lesbian
couple testifying she said, I just wanna say that I wish your, you and your
beautiful family the best of luck. In more strongly endorsing the comments
of speakers on one side, the chair conveyed that she saw one side in a more
favorablelight.
COMMITTEE QUESTIONING PRACTICES
A final aspect of hearings that varied concerned what the committee did with
its questioning. Although questioning could be seen as part of a hearings
design, Itreat it as a distinct factor because of its complexity. Of the six state
hearings, questioning occurred only in three of them. In these three states,
which included Hawaii, Rhode Island, and Colorado, only a small percentage
of testifiers were questioned. In Hawaii, questions were posed to 9 out of 176
testifiers (5%); in Rhode Island, it was 14 out of 108 (13%), and in Colorado it
was to 13 out of 79 (16%). Among the hearings in which questioning occurred,
Colorado distinguished itself. Not only did the Colorado chair inquire after
almost every speaker whether committee members had questions (see Excerpt
5.6), committee members also questioned a larger proportion of speakers, pur-
sued selected ones across many more turns, and used questions for a greater
diversity of purposes.
The count of questions in Colorado, in fact, is a conservative one, not
including questions that were directed to non- agenda matters. Committee
members occasionally used questions to build relational connections to a tes-
tifier, such as when a legislator asked a man serving in the National Guard
which base he came from, or a legislator asked a self-identified student what she
was studying, or a man was asked if he had also participated in the Colorado
Senate hearing as a way to draw attention to his being a regular present at
House committee hearings of all types. Of note, minutes for the hearing taken
by legislative staff indicated if a person was questioned. But in these brief two-
to three-sentence summaries of a speaker, a speaker was not identified as being
questioned when questions attended to these kinds of face concerns.
In addition to using questions to attend to citizens face wants, Colorado
legislators used the questioning slot to launch disagreements with a speaker
where their question had not even the slimmest guise of question-hood. For
instance, following a woman testifying that gays can change and there is no
evidence that sexual orientation is fixed, the chair engaged in his normal clos-
ing of asking for questions:
Excerpt 5.7 (Colorado)

Chair:Thank you maam. Are there any questions from members of the
committee? Uh RepresentativeKagin.
RK:Uh thank you Mr. Chair. Maam Iwant to respectfully disagree with
you about choosing to be gay or choosing to be heterosexual. And
one of my reasons is Iknow my own sexuality. Ihappen to be hetero-

sexual but Idont-Iknow that Idont have any choice over that.
Another way in which the Colorado questioning differed from other hear-
ings was that number of turns a testifier could be pursued. Mini-pursuits hap-
pened with quite a few of the speakers who were questioned, with the most
dramatic exchange being with the attorney representing the Alliance Defense
Fund and speaking against the bill. Taking over 30 minutes and involving five
different committee members, 17 questioning turns, and very long questions
and answers, this exchange seemed more typical of the information-seeking,
technical exchanges that Parrott (1996) observed in his study of bankruptcy
law hearings before the US Congress or in oral argument in appellate courts
than what occurred in the state marriage hearings.
Across the set of hearings people who were questioned (and disagreed
with) were typically associated with institutions or spoke as professionals with
an expertise (e.g., an accountant, minister, estate planning attorney). In the
Hawaii hearing, for instance, questioned speakers on the pro-side represented
the State Board of Education and the Hawaii Civil Rights Commission, and
spoke for the University of Hawaii Law Schools gay student group. On the
con-side, speakers represented the Hawaii Family Forum and Christian Voice
Hawaii. Only two of the nine people questioned were people without an institu-
tional connection. Colorado was the exception to this generalization. Although
the longest exchanges in Colorado occurred with institutionally linked speak-
ers, seven of 13 (54%) occurred with testifiers not claiming special expertise,
such as we saw in Excerpt5.7.
The percentage of citizens questioned in Colorados hearing was small,
but it was larger than in the other hearings. In addition, Colorados judicial
committee questioned speakers more extensively and did so with a greater
variety of people. Managing of questioning is a way a hearing constructs
its central interactional purpose. Presumably hearings are about inquiry and
debate about an issue to inform the policy, and they are places where citizens
can express themselves and be heard. Ahearing that questions more people
and asks pointed questions across longer stretches of turns is giving more
attention to the debate/inquiry purpose, whereas a hearing that allows people
to speak without requiring them to account for their views is attending to the
citizens-being-given-voice function. Figure 5.3 displays the hearings in terms
of the purpose that each hearing privileged.
CO RI HI IA NJ VT
Debate/ Expression &

Inquiry Voice
FIGURE5.3 The Genres Dominant Purpose byState
How Hearing Design Choices Reflected and Created Problems
What are the problems faced by legislators in designing hearings and citizens in
participating in them? This analysis of context in six legislative hearings consider-
ing changes to their states marriage laws suggests the following. First, there is no
formulation of a controversial issue that, itself, is not weighing in, at least subtly,
on a side of the issue. The social meaning of a proposal will depend on its exact
linguistic formulation, the understood alternative(s) to what it is advocating, and
the larger society that frames at a particular historical moment what is imagin-
able as an issue to be argued (Fitch 2003). The upshot of this communicative
fact is that speakers expressing views that favor one side of a controversy have
an enhanced chance of being assessed as reasonable, and those expressing views
on the other will have a diminished possibility. This inequity could be framed
as unfair, but I would suggest it is not. The kind of argument-advancing that
is accomplished through issue formulation is eminently reasonable. In fact, it is
the way that democratic decision-making not only happens but should happen.
Defining issues in ways that advance the policies that particular state representa-
tives or senators favor is exactly what these officials were elected to do: their job is
to seek to effect (or stop) particular social changes. Given that other politicians are
working equally hard to advance other stances toward the same issue, it is ethically
warrantable, as well as strategically wise, for legislators to formulate issues that
forward the values and policies they favor. Admittedly, a consequence of issue
formulation being tilted is that citizens advocating one side can expect to have an
easier time speaking cogently than those speaking on behalf of the other position.
Once an issue has been formulated, however, and a legislative body begins
to gather input from its citizens, the kind of argument-advancing that is accom-
plished by treating pro-and con-testifiers differently is not defensible. Unequal
treatment of ordinary citizens in public contexts is a visible, easy-to-spot
marker of unfairness that can undermine the sense that a legislative body is
committed to being democratic. Democracy is fundamentally an egalitarian
ideal (Billig etal. 1988), and in American public meetings at all levels, democ-
racy is the format that is expected to shape what participants do (Dahl 1961).
In citizens actual talk in meetings, implicit or explicit references to democracy
are regularly used to criticize officials and call them to account for their pro-
cedural choices in coming to a decision about an issue. As has been repeat-
edly shown in studies of trials in the justice system (Gastil etal. 2010), when
a person believes she or he was treated fairly, the person will accept a decision
that goes against self. Citizens comments in local governance meetings treat
procedural fairness as if it were an obvious, easy-to-implement goal (Tracy
2010). It rarely is. Achieving procedural fairnessthat is, an immediate groups
judgment that it occurredis a complex practical matter, involving ostensibly
small, interconnected choices that will trade one principle of good meeting
conduct for another.
To be sure, not all hearing design choices have complicated meanings.

A chair who gives compliments and other conventional positive tokens to
speakers on one side and withholds these speech acts from speakers on the
other side will not be seen as fair. Yet, although equality of acknowledgment
forms is a relatively easy-to-interpret marker of fairness, others are not. Asking
questions of speakers on one side more often than of the other does not link
to fairness in any easily interpretable fashion. As citizens giving information
and opinions is, at least officially, expected to shape how representatives vote, a
legitimate part of a hearing process is for committee members to ask questions.
But questioning is not simply a vehicle to get information, it does identity-
work. Given few people in these hearings were questioned, to be questioned is
to be altercasted as a speaker of standing, someone deserving serious engage-
ment. At the same time the content of questions may cue that a speaker is seen
as unreasonable or even immoral. Questions also reveal the political leanings
of the legislators and do so much more straightforwardly than occurs in the
courts. Judicial committee members are politicians with public commitments
on controversial issues. When these legislators spoke, it was often easy to guess
on which side of the issue they would be voting.
How procedural fairness relates to the issue of the number of speakers and
of time allocation is especially difficult to link to general principles. Is fairness
during a controversy allowing everyone who wants to speak to do so, or is it
restricting participation so that the same number of citizens for each side of
an issue can speak, or it is some intermediate other arrangement? Iowas less-
than-2.5-hour meeting with the same number of speakers contributing on each
side, in rotating order, and with every speaker stopped immediately upon reach-
ing the announced time limit, might seem an ideal model of fairness. In the
Iowa hearing, as evidenced by the democracy-celebrating comments offered by
the chair at the conclusion and the absence of audience dissenting moves, the
hearing seemed to be regarded by participants in this positive fashion. But it
is unclear whether such participation strictness, which prohibited many people
who wanted to speak from doing so, would have been acceptable had the weather
been better and the practical fear of driving on icy, snowdrift-laden roads not
been an immediate danger. As Potter and Hepburn (2007) argued in their analy-
sis of a chairs enforcement of participation rules during the public participation
phase of a school board meeting, following rules strictly can be regarded to be
inappropriately unresponsive and hence can also be seen as undemocratic.
Hawaiis hearing, which allowed everyone who wanted to speak to do so, is
another model of procedural fairness, but it is a model unlikely to be emulated.
To expect hearing leaders and testifiers to be able to give thoughtful atten-
tion to what is being said for 5, 10, or 18 consecutive hours is not sensible. In
addition to achieving a democratic process, the design of hearings also needs
to attend to peoples attention-giving capabilities, as well as their concomitant
need to eat, move around, and do things other than participate in that hearing.
Whether all testifiers should be treated equally or some given more time to
speak is another thorny issue, especially for controversies that revolve around
categories of person and what are reasonable rights. It is expertise about peo-
ples conduct (e.g., counselors, educators, social scientists), by which an expert
espouses how a category of person should be seen or evaluated, that is the most
political and contestable kind of expertise (Billig et al. 1988). Furthermore,
when the opinion of the elites in a society differs systematically from what
many ordinary people thinkas has been the case with marriage between cou-
ples of the same sexa public hearings choices about who is to be treated as
expert and what additional speaking rights they will be given needs to be made
carefully.
Designing a public hearing process that is procedurally fair for a contro-
versial issue will be challenging. To do so well requires careful decisions about a
variety of small matters. To the degree that the character of a hearing situation
can be accurately anticipated in advancenumber of people wanting to speak,
distribution by sides, presence of experts, the need for a defined meeting end-
ing time, the possibility of holding multiple meetings, etc.these procedurally
consequential choices can be thought through and made more ably. But a hear-
ings actual demands will not always be anticipatable. When this happens, hear-
ing organizers must do their best to recognize that every decision about how to
adapt the meeting process must be made in light of what has already occurred.
6
Religion, Citizenship, and Identity

inUS Law-Making
No question divides Americans more fundamentally than that of the rela-

tionship between religion and government, opined Feldman (2005, 5). From
the formative years of the United States, in which the founders built into the
Constitution both the Establishment Clause, prohibiting government from hav-
ing an official religion, and the Free Exercise Clause, ensuring all Americans the
right to practice their religion, there have been recurring battles regarding the
meaning of the American commitment to these two principles. The importance
of government not imposing a religion on Americans and the crucial importance
of religious belief in American life are well captured in Dwight Eisenhowers
assertion that Our government makes no sense unless it is founded in a deeply
religious faithand Idont care what it is (Feldman 2005,165).
During appellate court oral arguments, there were almost no references to
religion or use of religious terms. Across the eight cases, a search for religious
terms (relig*, God, Christ, Jesus, church, bibl*) found an average occurrence
of 3.25 times per court.1 These occurrences included several non-case refer-
ences (mention of a church down the street where the live argument was being
broadcasted and the opening announcement by the bailiff of the judges enter-
ing in which the word God was used).2 Excerpt 6.1 illustrates two typical uses
during the oral argument:
Excerpt6.1
(a) CA, Justice Chin to Plaintiff Attorney Stewart
But would you object if the state said marriage is really a religious
institution? We are sanctioning civil unions therefore were going to
call all of them civil unions. Would you object?
(b) Iowa, Justice Appel to Plaintiff Attorney Johnson
Well what about-and Ill close with the view of-of tradition, that-
that-look time immemorial, its almost a common law argument 107
if you will. From time immemorial this is what marriage has been.
Uh theres some religious notions out there. Perhaps um uh that the
defense of traditional institutions is reason enough. Um why does that
not satisfy rationalbasis?
Although references to religion were rare in the court, this was not the
case in the legislative hearings. Religion was front and center. After providing
a brief history of how religion has been understood to connect with govern-
ment and laws in the United States, Idescribe six distinct ways religious ideas
and terms entered citizen testimony. Then, particularly focusing on the Hawaii
hearing, Iargue that the facework strategies employed by religious, anticivil
union testifiers, evidence that American society was well into a frame flip by
2009. It had become questionable in public discourse to frame homosexuality
as a matter of conduct; gays had become a category of citizen entitled to the
rights of all other citizens.
A Brief History ofthe God-Government Relationship
In his examination of religions role in the making of the United States,

Meacham (2006) makes a distinction between the United States as a nation
founded by Christians, and as a Christian nation. The US Constitution
includes no references to God or the Christian religion, and in an early letter
from President John Adams to the Muslim nation of Tripoli creating a treaty,
Adams indicated that the US government was not a Christian nation. At the
same time, the United States was founded by men who were Christians
almost all Protestantand aspects of their Christian beliefs have been woven
into the laws and practices of the United States. Moreover, while the federal
government was explicitly built to be separate from religion, such was not the
case with the governments of individual states. The First Amendment to the
Constitution, which spelled out that the US government could not establish a
religion, was designed to ensure that decisions about religion stayed with the
states. Well into the 1800s, different states required their citizens to pay taxes or
have affiliation with specific Christian religions. It was not until after the Civil
War and, practically speaking, following a series of court cases in the 1940s
that contemporary notions about the separation of church and state began to
be applied to individual states (Levy1994).
Both Germany and the United States have clauses in their constitutions
prohibiting the establishment of religion. In a comparison of how these
clauses get played out legally, Haupt (2012) concludes that the United States
allows religion to flourish in state matters much more than Germany. The US
Constitutions First Amendment promises to its citizens both the free exercise
of religion and that there will be no particular religion endorsed by the state.
Religion, Citizenship, and Identity in US Law-Making 109
Yet what religious expression is and is not allowed in 21st-century America

is truly perplexing (Haiman 2003). For instance, prayers are not allowed in
the public schools, but they are allowed and regularly said at the openings of
Congress and state legislatures. At high school graduation ceremonies, students
may lead prayers but a religious leader may not, and in public schools, teachers
may wear crosses and stars of David but a Sikh cannot wear a turban, nor may
a nun wear her religious habit. With regard to money, states may pay for buses
to transport students to religious schools, but they may not pay for buses to
take religious school students on fieldtrips.
Furthermore, although many of the battles about religions role in
American society treat religion as if it were a clearly defined thing (i.e., an
institution focused on belief in God with sacred texts), legally that is far from
true. When conscription for the armed forces existed in the United States, it was
possible for a man to get a conscientious objector status for religious reasons.
When an atheist applied to be conscientious objector during the Vietnam War,
he was initially denied that status by the courts. Later, however, after appeal
to the US Supreme Court, he was granted such status. In the Court opinion
for this case, religion was defined as an abstract, ultimate code (Stronks 2002).
When religion is defined in this way it makes sense to consider atheists as reli-
gious. However, a consequence of this broad definition of religion is that it
makes it possible, as has been happening in the last decade or two in multiple
US states to treat intelligent design as simply a debate between two religious
views, fundamentalist Christianity and secular humanism.
Thomas Jefferson wanted to build a wall between the church and the
state. This never happened. Warren Burger, Chief Justice of the US Supreme
Court during the 1970s, said of the constitutional battles over politics and reli-
gion: the line of separation, far from being a wall, is a blurred, indistinct,
and variable barrier depending on the circumstances of a particular issue
(Meacham 2006, 240). This blurred boundary between religion and the state
extends from interpreting law in the courts to the making of law in legislative
hearings. When a US state considers changing its law with regard to a mat-
ter that ties to some peoples religious beliefs and other peoples rights, pub-
lic discussions about what policy the state should adopt are likely to become
battlefields.
According to a 2012 Pew survey, 73% of the United States identified as
some type of Christian (Catholics, Mormons, black or white Protestants),
20% identified as nones (agnostic, atheist, or nothing in particular), and
the remaining 6% identifying with other religions, with Judaism the most
prominent. There is no single religious point of view on same-sex marriage.
Different religions have different positions about gay unions, but as Campbell
and Robinson (2007) note, the bigger divide is within religions between tradi-
tional and progressive camps. Traditional Protestants, Catholics, and Jews are
more similar to each other in their stance toward homosexuality and same-sex
marriage than they are to their progressive brethren. A traditional religious

stance toward same-sex marriage is illustrated in the 2005 statement from the
Southern Baptist Convention:
We affirm Gods plan for marriage and sexual intimacyone man, one
woman, for life. Homosexuality is not a valid alternative lifestyle. The
Bible condemns it as sin. It is not, however, an unforgiveable sin. The same
redemption available to all sinners is also available to homosexuals. They
too may become new creatures in Christ. (Wald and Glover 2007,109)
Whereas traditionalists tend to interpret the Bible literally, progressives see the
need to take account of context in making interpretations and emphasize jus-
tice, equality, and inclusiveness (Campbell and Robinson 2007). While diversity
among religious views is significant, there is a strong tendency in the media and
among Christians themselves to treat the traditional position as the religious
view on same-sex marriage (Wald and Glover 2007).3
In the 1960s before the rise of the religious right, Robert Bellah (1967) pop-
ularized the idea that the United States had a civil religion, a valuing of God
in political life that permitted many different versions of belief. In his influential
essay Civil Religion in America, he proclaimed that the relationship between
politics and religion had been singularly smooth. Writing a decade later, Hart
(1977, 1)described civil religion as the ritualistic homage being paid by expe-
dient politicians to a religious-conscious electorate. By the 1980s, though, the
smooth relationship had disappeared (Hulsether 2007), and by the 21st century,
legal scholar Noah Feldman (2005) described the relationship between govern-
ment and religion as the issue that most divides Americans from eachother.
In representative democracies, the main way ordinary folks influence
what becomes policy is by voting for the representatives who will make the
decisions. But there is another avenue for influence. Citizens can speak at
public meetings in which a governance group is considering a particular
policy issue (Laidman 2010). As a populist democracy, the United States
gives to its citizens a bigger role for speaking out in meetings than is the
case in European countries that have an elite democracy philosophy. In elite
democracies, deliberation is largely restricted to elected and appointed gov-
ernment officials. In the federalist system of governance, American citizens
are extended an opportunity to testify at local and state levels that is rare
in European countries. In a large survey that Conover, Searing, and Crewe
(2002) carried out with American and British citizens, they found that more
than twice as many US citizens reported speaking in public meetings than
did British citizens (29% vs.13%).
The American belief that there should be a place for ordinary citizens to
speak in democratic institutions is accomplished through the design of local
and state meetings in which speaking slots for members of the public are rou-
tinely included.4
How Religion Entered Citizen Discourse
In this site of ordinary American democracy, religion entered citizen testi-

mony in these judicial committee hearings in six distinct ways.5 The first way it
entered citizen testimony was by a speaker referring to a religious text to argue
for or against a proposal. When scholars (Audi and Wolterstoff 1996)debate
about the reasonableness of religious argument being part of public discourse,
this is perhaps the key activity that is being contested.
NAMING/QUOTING OFRELIGIOUSTEXT
Citizens referred to various books in the Bible frequently. In Hawaii, Rhode

Island, and Colorado, the three longest hearings, the book of Leviticus alone
was mentioned 47 times. Citizens varied in how specifically they referred to the
Bible, sometimes quoting chapter and verse and using the language of the King
James Bible (e.g., sodomites, fornicators) and at other times merely pointing
toward the Scriptures. Excerpt 6.2 illustrates a detailed reference; Excerpt 6.3
a generalone.
Excerpt 6.2 (Colorado,Con)

Uh with all due respect, those people are not adhering to the teachings of the
Scripture. Leviticus 18:22 says if a man lies with another man, it is an abomi-
nation. Leviticus 22:18 says that if a man lies with a man as with a woman,
they shall both be put to death for an abom-abominable deed, for they have
forfeited their life. In the words of St. Paul the apostle, you do not know-
that the unjust will not inherit the kingdom of God. Do not be deceived,
neither fornicators, nor adulterers, nor boy prostitutes, nor sodomites, nor
thieves, nor the greedy, nor drunkards, nor slanderers, will inherit the king-
dom of God. First Corinthians 9:10. Ladies and gentlemen of the commit-
tee, were living in a world where the awareness of sins is ticking away. Let
me show you that Jesus Christ is real. And he will judge us all at the moment
of our death. If youre not a believer, at least consider the lessons of history.
Excerpt 6.3 (Hawaii,Con)

Um, lets start with God first ok? Im a Christian, as most of us are, ok? And
uh Im not-Im not gonna go through all the scriptures or whatever. But
just to tell you that when God says something is not good, you better abide
by what he says. Otherwise theres gonna be some serious consequences.
Religious texts were typically used by speakers as if they settled the dispute
about what to do. In fact, this was the only way that religious texts were used by
speakers arguing against the same-sex marriage bills. Citizens passed on Gods
instructions to elected officials about how tovote.
Using texts as a vehicle to straightforwardly instruct officials, however, was

not the only way these texts were used. Citizens favoring the bills highlighted
the many different messages one could find in the Bible, often quoting passages
that emphasized Gods loving character, or they cited a text to problematize its
implications, as was seen when a citizen cited Leviticus to shows its datedness
by noting how it condoned slavery and prohibited the eating of shrimp.
PRAYING FOROFFICIALS
A second way religious talk entered testimony was for a citizen to begin praying
in the midst of testifying. Praying changed the footing (Goffman 1981)of the
elected officials from the key addressed parties to that of overhearing third par-
ties:officials were put in the position of listening in on a conversation between
a testifier and God. Excerpt 6.4 illustrates an example, which occurred at the
end of a lengthy speech.

Thank you Heavenly Father Iapologize if Ihavent always acted out of
love. There are times when Iwould like to kick some peoples butts. But
Iknow it is out of love, Lord God that you called me and you loved me.
And thank you for loving all of us and respecting the fact that youve given
us the free choice to make our own choice. So it is with that love that Ipray
for our leaders and their families. Please guide them with your truth and
your wisdom Heavenly Father. Ipray also Lord God, for our nations and
for the people of the nations, for every tender tongue and people. We are
special. You made us. And you created us in your image and not to be
degraded. I pray for our churches and our wonderful pastors and their
wives and families and especially for those who have had the courage,
thank you Jesus, to stand up for what God says is his word and to fear God
rather than man. They took a risk and Ithank youJesus.
LABELING RELIGIOUS AFFILIATION
A third way religion entered citizen talk was as a credentialing device, an

implicit justification for why the judicial committee should listen closely. In
citizen speeches in public meetings, a key move in openings is for the citizen
to identify the features of self that warrant his or her views being taken seri-
ously. What exactly a citizen will mention in this opening slot will vary with the
issue and the context.6 Because a speaker can describe self in a large variety
of waysby age, political party, ethnicity, occupation, place of residence
the category terms speakers select give us insight into what identities citizens
regard as giving them credibility in that particular interactional site. Harvey
Sacks (1992) labels this practice the use of membership terms. To describe
persons using some membership terms rather than others is powerful because
the selected term sets in motion inferences about activities, attitudes, and other
people. In these hearings, citizens used many different identity labels to self-
describe, but what was striking was the frequency of religious identification.
Both religious leaders and ordinary believers used category affiliation in their
openings.7 Excerpt 6.5 exemplifies two religious leaders openings.
Excerpt6.5
(a) (Hawaii,con).
Hello, my name is Dennis Dutton, Im assistant pastor of the Calvary
Chapel West Oahu.Today Id like to provide three points of uh dis-
cussion concerning House Bill444
(b) (Rhode Island,Pro)

After being identified as Rabbi Mack by the chair, she said, Thank
you so much. Um Im here this evening, Ithink its important um that
you hear from me as-as the only formal representative of any Jewish
community here in Rhode Island. Um just because Iam the only rep-
resentative, um does not mean that uh the Jewish community is not
widely supportive of marriage equality. Im the Associate Rabbi at
Temple Bethel in Providence. Um we have 950 families.
In all the hearings, although particularly Hawaiis, ordinary believers also
identified their religious categories with explicit identity terms. One example
is seen in the opening of Excerpt 6.3, where the speaker identified himself as
a Christian. Others included testifiers saying, Im a born-again Christian
or Were Catholic, said by a husband/wife pair. These self-labeling moves
underscore that the policy decision is a religious matter and function as an
implicit reason that the legislative committee should give careful attention to
the speaker. Many speakers who began by self-labeling brought religion into
their message in others ways, but some did not. For those who did not, the self-
labeling functioned to cue and reinforce the existence of important other unsaid
argumentative grounds for being for or more often against the proposedbill.
REFERRING TOTHE FIRST AMENDMENT OFTHE US CONSTITUTION
Another way religion entered testimony was by invoking its connection to the
First Amendment. On the website of the US Department of State, posted in
multiple languages, are 21 one-page primers about the Principles of Democracy
(2005). One of the principles concerns the two Religion Clauses of the First
Amendment:freedom of religion and separation of church and state. In the
one-page primer, readers are assured that although many democracies may
choose to recognize an official separation of church and state, the values of
government and religion are not in fundamental conflict. Citizen testimony
in the hearings did not support this conclusion. Citizens oriented to one piece
of the two-part First Amendment Religion Clause, either its commitment to

separating church and state or its espousal of freedom of religion. Those favor-
ing passage of the bill invoked the commitment to separate state from church;
those against civil unions either enacted religious freedom by speaking of what
their religion demanded or, on occasion, explicitly argued how passage of the
bill would lead to the infringement of some citizens religious freedoms.
The question of how to ensure religious freedom for all while limiting the
influence of any one religion has presented a challenge since the framing of
the Constitution. The framers saw religion as the essential expression of con-
science and as the greatest threat to its flourishing (Thiemann 1996, 19). The
official separation of church and state as we know it today is a relatively recent
approach to the dilemma of how to ensure free exercise of religion without
establishing any particular religion. Everson v.Board of Education was the land-
mark case in which the Supreme Court ruled that the US government should
remain neutral with regard to matters of religion, and it was this 1947 decision
that popularized Thomas Jeffersons idea that there should be a wall separating
church and state (Sandel1990).
A count of religion-linked words by speaker position in the Hawaii hear-
ing revealed the following patterns. Con-speakers were more likely to reference
God, Christ, and the Bible, as well as tradition and morality terms,
which several authors suggest are cover terms for conservative Christian values
(e.g., Mucciaroni 2008). Pro-speakers made more references to religion and
church. Looking at these keywords in context revealed that those in favor of
civil unions tended to refer to religion as an institution, and those who opposed
the bill treated religion as a personal commitment that required them to express
their religious beliefs. In this way, con-speakers performed freedom of religion,
while pro-speakers pushed for the separation of church and state (Table6.1).
TABLE6.1
Frequency ofReligious Lexical Choices byPosition
inthe Hawaii Hearing (per 1000Words)
Word/Phrase Pro-CU Con-CU
Con Terms
God .7 1.8
Jesus or Christ* .6 .8
Bibl* .6 .7
Tradit* 1.2 1.5
Moral* .3 .6
Pro Terms
Relig* 2.1 .7
Church .9 .6
Separation of church/state .2
How con-speakers invoked the religious freedom commitment part of

democracy, with its taken-for-granted Christian grounding, is illustratedbelow.
I believe in a Biblical worldview of marriage between one man and one
woman, and agree that living a Godly moral lifestyle produces a healthy
family, and culture of life. History has revealed time after time that soci-
eties who embrace traditional marriage has produced offspring with a
healthy attitude. Acult lifestyle produces confusion and leads to a societal
collapse.
Con-speakers invoked religion freely in their testimony, and told stories involv-
ing God and Christ that were very personal. In Excerpt 6.7, a woman tells
the story of how her encounter with God transformed her identity, helping
her to walk free from homosexuality.
I had a-a radical en-encounter with God one night, that Iwasnt asking
for, Iwas in a relationship that- with another girl that Ithought Iwould be
in for the rest of my life. And Ihad a huge encounter with the Lord. And it
changed my life forever. And Ihave been in a process for the past six and a
half years of walking intimately with Jesus Christ.
While use of Christianity, God, and Bible terms usually enacted religious
freedom and were key parts of the argument against same-sex unions, speak-
ers could use the terms to challenge the anticivil union position. In Excerpt
6.8, a pro-speaker refutes the relevance of Leviticus and religious arguments in
general to the civil union debate.
Excerpt 6.8 (Hawaii,Pro)
Um, some have testified in opposition to HB444 stating passages from the
Bible, including Leviticus 18:22 which states you shall not lie with a man,
as a woman is it-it is an abomination. Any argument against civil unions
that appeals to Leviticus is extremely problematic for a number of rea-
sons. While its true that Lev-Leviticus defines same-sex relationships as
an abomination, Leviticus also defines handling pigskin as in a football, or
eating shrimp or lobster, as an abomination.However, the bigger prob-
lem with appealing to Leviticus is that the Bibles view on marriage is not
relevant to this debate. This is not a religious issue and need not involve
debates about religious texts such as theBible.
Pro-speakers references to religion revealed a different overarching dis-

cursive strategy from those employed by speakers against the civil unions
bill. While con-speakers showed a preference for talking about God and their
personal religious beliefs, pro-speakers showed a preference for talking about
religion and the church in broader terms, as institutions. These references to

religion supported arguments for the separation of church and state, as is
evidencedbelow.
I think using religion as a reason to deny peoples civil rights i-its not con-
stitutional. And that uh uh-What Im hearing today would be the equiva-
lent of me as a Jew asking this legislature to pass a bill banning the sale
ofpork.
Pro-speakers also used direct references to the separation of church and state,
as well as terms pointing to the language of the Establishment Clause of the
First Amendment to counter references to religion. In Excerpt 6.10, a speaker
calls into question the legitimacy of religious arguments, implying that such
discourse is a form of religious persecution that is antithetical to the basic
foundation of this country.
Remember the basic foundation of this country is the separation of church
and state. And the pilgrims came here to free themselves from religious
persecution.
This speaker points to the idea that endorsing religious stances in matters of
governance impedes the rights of individuals who dont take the same religious
perspective. For some (e.g., Sandel 1990), liberal democracy in the United States
is defined by the primacy of individual rights, an understanding of which is
central to the enactment of the separation of church and state. According to
this view, government neutrality with regard to religion is meant to ensure that
no religion is endorsed or impeded. Any use of religion to justify public policy
entails violating the Establishment Clause as the governments promotion of a
particular conception of the good impinges upon individuals rights to choose
their own conceptions. For others, America is founded on a certain religious
vision, and one departs from the common purpose in wanting to exclude God
from the public realm (Taylor 1990, 112). In sum, speakers both for and
against same-sex civil unions used democracys precepts about religion to argue
for their position. Citizens did so in a way that strongly implied that only those
favoring their position were being consistent with what democracy calledfor.
Religion entered testimony in two other ways, each of which requires a
certain amount of inferential work to identify religion as being invoked.
DENYING THAT A PROPOSAL IS A MATTER OFCIVILRIGHTS
In these hearings the central argument for extending the right of marriage or
civil unions to same-sex couples was the need for equality:Marriage, proponents
argued, is a basic civil right to which all citizens are entitled. This argument was
repeatedly made with subtle kinds of variation by citizens favoring same-sex
unions. As Michael Billig has shown (1987; Billig etal. 1988), everyday thought
is fundamentally argumentative. Asserting one claim conveys an implicit asser-
tion about the opposing claim. Often, too, the discourse reveals traces of the
understood opposing claim. Many speakers denied that extending civil unions
to gays and lesbians was an issue of civil rights. That an issue is not a civil rights
issue does not necessarily make it a religious one, but in this context, it did. In
Excerpt 6.11, an African American speaker uses his body and experience to
assert the issue before them in not a civil rights matter, cuing that its alterna-
tive is religious with his preface about not getting into the religious aspect.
In Excerpt 6.12, the fact that religious issue is the competing view to civil
rights matter is formulated explicitly through the speakers religious identity
credentialing, claiming to represent Jesus Christ, and by describing the issue as
a moral matter, a term that most would see as a cousin of religion.
Im not gonna get into the religion expect-aspect of it. But Ihave a super
problem with the civil rights thing about this. Now when the gay lesbian
groups compare this issue to the issue of Americans who are black, and to
civil rights, Ifind it very disingenuous. Let me just give you astory.
My name is uh Pastor Roger Angis and Irepresent uh myself. And Ialso
r-represent Jesus Christ. Ive been listening to the testimonies from both
sides of the fence. I hear economic policies. I hear so-called civil rights.
This is not a civil right.This bill has to be put up first. Is this a moral
bill? And this is not a moral bill in any way, shape orform.
We might say that the dominant counter-position in these hearings to
same-sex marriage being a civil rights issue was to regard it as a religious, moral
matter. Thus, a way speakers brought religion into the debate was to deny that
the issue before them concerned civil rights.
CLAIMING OR DISAVOWING MORALLY LINKED IDENTITIES
Political attitudes and beliefs go together in clusters. When a speaker expresses

a view on one issue, people will assume that the speaker has particular views
on other issues and will make assumptions about what kind of person the
speaker is (Conover, Searing, and Crewe 2002). To state it in a more discourse
analytic way, stances toward an issue implicate identities and identities impli-
cate stances (Tracy 2011d).8 Claims and disavowals, then, work in two ways.
Such verbal acts seek to redefine what should be seen as going togetheras
part of a bundleand they underscore what the taken-for-granted bundleis.
Citizen testifiers advanced claims about the goodness/badness of the pro-

posed bills, but as they did they were also doing discursive work to show that
they as persons possessed attributes not assumed to go with the stance they
were advocating (for or against same-sex marriage). That is, they did discursive
work to draw attention to the fact that either (a)they did not possess unde-
sirable attributes associated with the stance, or (b)they did possess desirable
socially valued attributes not typically associated with that stance. In this time
period, the American bundle of attitudes-identities, Iwould suggest, sees being
religious as aligned with patriotism, which in turn aligns with being hostile to
gays. On the flip side, being gay is seen as not being religious and questionably
patriotic. Evidence that this is the understood bundle is seen when gay speak-
ers assert their patriotism and love of country/state or elaborate their positive
connection to God as they argue for marriage rights. Excerpts 6.13 and 6.14
illustrate two gay speakers asserting their love of state and country. These
comments could seem off-topic if the bundle of positions, which Iarticulated
above, were not in operation.
Excerpt 6.13 (RI,Pro)
I really appreciate the opportunity to speak here uh this evening on behalf
of marriage equality, uh and Iwill be briefIm a proud Rhode Island
native. Igrew up here. Iwent to school here. Ive enjoyed a terrific profes-
sional career here spanning 25years.
Excerpt 6.14 (Colorado,Pro)
A lot has happened in the past 15years. The good news is that our country
has never been more just. Our countrys founders would look at our coun-
try now and see the change that has taken place and look at us in admira-
tion. Im proud to be an American. In fact Iwork for our citizens everyday
as a law enforcement officer.
Excerpt 6.15, from a law professor favoring same-sex marriage, illustrates

a lesbian seeking to show self, as well as the gay students for whom she speaks,
to be deeply religious. Although her utterance construction is not straight-
forward, the discursive proximity of her identification of the existence of inac-
curate stereotypes and her claim that she and many of her gay students are
religious function both to rebut and solidify the expected association.
Let me tell you a little about the students for whom Ispeak today. Most are
local, born and raised in the islands, Hawaiian, Japanese, Chinese, Filipino,
South Pacific Islander, European, Hapa. They give lie to the stereotype that
gay rights are a mainland Haole issue. Many, myself included, are deeply
religious people whose faith plays a central role in their and ourlives.
A different strategy to seek to overturn the assumption that being gay is at odds
with being religious is seen in Excerpt 6.16, in which a lesbian comments about
the character of the love she has for her partner.
Excerpt 6.16 (Colorado,Pro)

Living with Wendy in Loveland and being with Wendy for over 17years has
been the most stable, God-centered place Ive ever been in my wholelife.
Citizens testifying against the bill oriented to the opposite problem in the
assumed bundle. As they argued against same-sex marriage, they proclaimed
their love of gays or disclaimed that they were prejudiced. Excerpt 6.17 illus-
trates a typical proclamation of positive sentiment, and Excerpt 6.18 shows a
speaker tackling the assumed bundle directly:

I wanna state unequivocally that I love the gays, lesbians. Our church
has some of them, the gays. Our company has employed them. My kids
have gay friends. I will also say that I love drug addicts, alcoholics. Ive
been ministering the homeless. Ive been ministering to them for the last
fourteenyears.
Excerpt 6.18 (Rhode Island,Con)
To say that this traditional understanding of marriage as many people do
believe, and they honestly believe it, is in fact based on uh, uh bigotry and
discrimination, um Iwould say that we also have a new problem. And Ido
recognize that in society. Which is how do we demonstrate respect for our
gay friends and family members and neighbors? And it is uh-It is a good
question. Its a serious and important question.Um, Iwould say this in
conclusion, that uh whatever else our marriage tradition is, it is not based
on animus or hatred or bigotry or a desire to doharm.
In sum, because of the assumed bundling of religion, patriotism, and anti-gay

sentiment (and the converse), speakers could indirectly bring religion into the
exchange by referring to one or another of the threads that comprised the atti-
tudinal fabric.
Sullivan (2005, 8)argues that religious freedom is impossible in the United
States. US law takes religion to be a matter that is private voluntary, individual,
textual and believed. Such a view is consistent with a mainstream Protestant
worldview, but for those in other religious traditions, religion involves action
activities one must do or should refrain from doing. The upshot is that reli-
gion and law today speak in language opaque to each other.9
Depending on where one positions oneself with regard to religion, this
non-friendly relationship may be regarded as problematic or as a goodthing.
Flipping theFrame:From Homosexual Conduct toGay Citizens
The Hawaii hearing had the largest number of citizens testifying against civil
unions. The hearing had followed a religious rally the Sunday before, in which
thousands had turned out to protest the passage of the civil unions bill.10 Many
of these people, garbed in red to make their presence noticeable, attended the
hearing and testified. The Hawaii hearing also had a good number of people
testifying in favor of civil unions. In speaking their views, participants on both
sides worked to frame their position as reasonable. Speakers expressed strong
sentiment-laced arguments about what they believed. At the same time, speakers
were treated as hostile and rude by persons on the other side of the issue. Those
favoring civil unions reported how insulted they felt to be put in the category of
problematic, immoral lifestyles; those against civil unions expressed outrage to
be cast as bigoted, hateful, and prejudiced. Insult was regularly inferred even as
speakers did interactional work to evidence that their intention was not aimed to
insult. Speakers built into their talk a whole array of linguistic markers of polite-
ness and face-attention (Brown and Levinson 1987). Speakers thanked the com-
mittee for its willingness to listen, expressed their pride in Hawaii and in being
Hawaiian, and celebrated their collective ability to be democratic and speak
out. However, while face-attending moves were regularly used by speakers on
both sides, there was an asymmetry in the quantity and intensity of selected
moves. By and large, anticivil union speakers used more frequent and more
intense face-attention strategies. In particular, two strategies were striking and
recurred frequently in the speeches of persons speaking against thebill.
The first facework strategy used by speakers arguing the con position was
to assert their love of the category of person against whom they were arguing.
In essence, this I love but strategy is an instantiation of a disclaimer (Hewitt
and Stokes 1975; van Dijk 1987) in which a person seeks to avert another from
drawing a likely inference for what would usually be taken to be a speakers
attitude if espousing such a position.
Excerpt 6.19I love but Strategy
Speaker 21:Ihave family members whom I love who have chosen this life-
style, and Iwill stand shoulder to shoulder with them, in defending
their rights to not be discriminated because of their lifestyle choices.
Speaker 37:And Istand here as a mother. You know you have the moms
group. Well Ispeak on behalf as a mother of a child who chose the
lifestyle. I love her nevertheless, and she can always come to me.So
it takes a mother and a father to produce this child, who nevertheless
welove.
Speaker 39:But Im one person who will tell them the truth-Homosexuals,
your lifestyle is not healthy for you. And because I love you as a per-
son, Ill ask you to change your lifestyle so that youll be around in the
next fourteen months.
The second facework strategy used by citizens speaking against civil

unions was to apologize for their side coming across as offensive.11 Of the nine
Hawaii speakers who apologized for how the content or style of their com-
ments may have affected the other side, only one was by a speaker in favor of
civil unions. There was, in fact, an interesting exchange between the two sides
about apologizing. After seven con-speakers apologized (e.g., Excerpt 6.20),
two subsequent con-speakers criticized past pro-speakers for not also apologiz-
ing (Excerpt 6.21). In so doing, con-speakers can be seen as framing the offer-
ing of an apology as the polite thing to do. By calling pro-speakers on their own
failure to apologize, they can be seen as working to frame the issue of poten-
tially nasty words being spoken as equally applicable. In essence, con-speakers
sought to tap into a cultural logic that assumes that when there is a conflict,
both sides of a disagreement should accept blame and apologize to theother.
Excerpt 6.20 (Apologies for offense)
Speaker 31: Excuse me, I would like to apologize for some. To reiterate
what someone else had said earlier, apologize for those whove acted in
a hateful manner out of fear and ignorance. That is never acceptable,
ever. Iwould like to stress that this opposition has nothing to do with
hate or prejudice. But everything to do with protecting the value and
the sanctity of traditional marriage,
Speaker 131: I personally want to apologize for the sins of my genera-
tion, and Ivow to teach my children compassion, and understanding
toward all people. That being said, Iwant it to be known that Ifiercely
oppose thisbill.
Excerpt 6.21 (Pro speakers should also apologize)
Speaker 155:And oh, Iwould add one thing to that. Um a lotta-um-sev-
eral Christians have stood up here and uh been very accommodating
uh to the other side, apologizing and uh, try-giving ground. Um and
Ithink, uh I-I-Ihave not heard that from the other side asmuch.
Speaker 162:And it is with love that we come to you today. Not out of
hate, not out of fear, and not out of fear-mongering. Ihave not heard
one person of the other persuasion today apologize for their rudeness,
for their an-animosity.
A pro-speaker who followed the above two con-speakers, though, did not
accept that the need to apologize applied equally to both sides. Shesaid:
Excerpt 6.22 (Apologies are not equally warranted)
Speaker 167:Youre asking us to apologize to you guys. But you have the
rights in this room. You have the rights, we dont have the rights. So
Icant apologize to you for all of the insults that youve levered at us
today-that youve levelled at us today. For all of the incredible igno-
rance that Ihaveheard.
This pro-speaker (Speaker 167) makes visible a different reason why apolo-
gies were more forthcoming from those opposing civil unionsthey were
more called for. The single apology for communicative style by a pro-speaker
occurred shortly after this one. But the content of Speaker 170s apology offers
a striking contrast to that of the con-speakers.
Excerpt 6.23 (Pro-speakers apology for implying Christians are hateful)
Speaker 170:Iand-and I-Icant speak for everyone else. Ido apologize
to Christians and conservatives. Ido think that theres been uh unfair-
ness on our side. I-Idont think any of you have been, uh Idont think
youre bigots. Idont think youre hateful.
Whereas con-speakers apologized for potentially coming across as hateful or
prejudiced, the single pro-speaker apologized for speakers on his side thinking
or implying that con-speakers actually were hateful.
The danger of being judged unreasonable, Iwould suggest, was not equal
for each side. Citizens arguing against civil unions were much more likely to
display a concern that they might be seen as attacking than those arguing for
civil unions. Anticivil union arguers did considerably more discursive work to
create a sense that their hostility was defensible.
When people argue about person-rights issues, in contrast to, say, resource
allocation issues or symbolic issues whose practical implications are ambigu-
ous, speakers will be positioned differently because of their identification
with or distance from the category of person to whom a right is proposed to
be extended or withdrawn. This difference in positioning intersects a second
important feature of the situation: whether the rights are for a legitimate or
illegitimate category of person. There are rights to which all humans are gener-
ally seen as entitled. There are also arenas of life in which unequal treatment is
accepted as legitimate. Those who violate the law, for instance, are not entitled
to the same rights as those who follow it, and persons who are not citizens of a
nation will be (legitimately) granted fewer rights than those who are its citizens.
To be sure, what exact rights persons in these different categories should pos-
sess is an issue of ongoing debate, but that it is reasonable to not treat the two
categories identically is taken for granted.
If, however, a person-rights issue relates to a category of person expected to
be treated equally, either because of relatively immutable characteristics (race,
sex) or a longstanding societal commitment (protecting religion), then in 21st-
century American public discourse, arguments cannot be made equally persua-
sively on each side. As Goodwin (2005) has noted, in US public discourse, it is
widely understood that remarks that express intolerance on the basis of race,
ethnicity, or religion should not be made. Identity related to sexual orientation
has not been seen by all Americans as belonging to the to-be-protected cat-
egory of persons. Yet, even though the dispute continues, the battle is largely
over. Most US citizens recognize that in the larger American society, gays have
become a legitimate category of person whose rights are seen as deserving to
be protected.
In chapter2 Ishowed how in the 17years between the two US Supreme
Court cases assessing the legality of sodomy lawsBowers v.Hardwick (1986)
which upheld these laws and Lawrence v. Texas (2003) which overturned
themUS society changed markedly in how it constructed and referenced
homosexuality and homosexuals. In the speech of the courts, as well as the
larger society, gays and lesbians became a legitimate category of person:gays
and lesbians rather than homosexuals or persons committing homosex-
ual acts. These language changes along with the decriminalization of gays
sexual conduct, passage of legislation that protected gays against employment
and housing discrimination, and their inclusion in a growing number of laws
forbidding hate crimes transformed gays from individuals who broke the law
hence a category of person deserving less favorable societal treatmentinto a
discriminated-against group of citizens.
A 2011 article in The New York Times titled A Tipping Point for Gay
Marriage12 commented that a decision of a prominent law firm to not take the
US House of Representatives as a client to defend the legality of the federal
Defense of Marriage Act was the turning point in the debate about same-sex
marriage. The decision of this law firm to forego such a lucrative job the author
saw as indicating the moment at which opposition to same-sex marriage came
to look like bigotry, similar to racial discrimination and the subordination of
women. My point is thisat a particular historical moment, a type of per-
son will be seen by its larger society as either a legitimate category of person
deserving rights or as a category of person who engages in illegal activities,
hence warranting differential and unfavorable treatment. Once the identity of a
category has shifted from the latter to the former, it becomes difficult to make
public arguments that favor negative actions toward that category of person.
The greater discursive work that anticivil union speakers had to do in com-
municating their stance evincedthis.
Fitch (2003) developed the idea of cultural persuadables to refer to
claims about events, policies, and people that could be explicitly argued. Not
all matters, she asserted, will be regarded within a society as appropriate issues
for persuasion and argument. Between what everyone in a society already does
and believes (and hence nothing needs to be said), and what nobody would do
or believe (and hence nothing needs to be said), are matters that are appropri-
ate for persuasion and argument. In roughly 25years, we have seen marriage
between same-sex partners move from an issue no one could imagine raising
to become a matter that people were heatedly discussing, to one that seems
headed to become a non-arguable for the opposite position. This movement
occurred because the societal perception of gays shifted from a category of
person who engages in illegal acts to a category of citizen deserving the rights
and protections extended to all citizens. As this shift in personhood beliefs
about gays in US culture solidifiessomething we see happening rapidlythe
argument-making of opponents of gay marriage has and will continue chang-
ing its meaning. Arguments against same-sex marriage that even several years
ago would have been treated as serious, legitimate position-taking have become
unsavory comment-making.
7
Storytelling and SocialChange
The world, via storytelling, cannot be changed at a stroke. But resistance

in these spaces of interaction may allow the seeds of change to be sown.
(Cammiss 2013,245)
Raw experience is necessary to shake our preconceptions in a way that
abstract reasoning cannot. (Cammiss 2013,224)
Stories serve many functions. In everyday exchanges, stories present selves

positively or negatively, persuade and dissuade, argue a point and counter
others points, motivate people to complete a difficult task, and, of course,
entertain. In the courts, criminal trials are all about stories. Prosecuting and
defending attorneys compete to create the more compelling narrative out
of witness-elicited facts and bits of smaller stories.1 Although stories are
uncommon during oral argument, tiny narrative bits are found.2 In the same-
sex marriage hearings, stories were everywhere. Speaker after speaker told
them to make compelling the argument for legalizing civil unions or same-
sex marriage.
In this chapter Ianalyze the stories told in the New Jersey and Colorado
judiciary committee hearings, the first and last hearings in this books time
frame. Ifocus on narratives told by speakers favoring marriage rights, as it was
these speakers who told stories most often. After an overview of narratives
in these two hearings, I describe three arguments that pro-speakers stories
advanced regarding why social change was needed. In the chapters second
section, I analyze one story from a con-speaker and the countering narra-
tive question it elicited. I conclude by identifying a coda that was repeat-
edly articulated in the Colorado hearing that was absent from the earlier New
Jersey one. This coda, which explicitly appealed to legislators to be on the
right side of history, furthered social change and was an explicit sign that
a major change in societal opinion had happened in the four and a half years
between the two hearings.
125
The Colorado and New Jersey Hearings
In both hearings, the bills to be considered proposed extending the rights of mar-
riage without the name. In New Jersey, the legislature had been required by its
state supreme court to deliver to its gay citizens at least the rights of marriage.
The New Jersey Supreme Court had left it up to the legislature to decide what to
label the relationships. The importance of the label marriage, in fact, became
an argument advanced by pro-speakers as the bill being debated proposed call-
ing relationships civil unions. Four and a half years later, the Colorado legis-
lature was considering a civil unions bill. At the time of the debate, Colorado
had a constitutional amendment defining marriage as between one man and one
woman, so there was little discussion about unions being called marriage.
What features a segment of talk must possess to warrant labeling some-
thing a story has multiple answers. In discourse circles, one widely used frame
is Labov and Waletskys (1967/1997) model of personal experience narratives.
Aprototypical personal experience narrative has six parts:an abstract, the ori-
entation, a complicating event, evaluation, a resolution, and a coda. At the
same time, not all stories are prototypical; many stretches of talk that people
identify as narratives lack some and even many of these parts. In Labov and
Waletskys structure, abstract and coda are optional and evaluation may be
implicit in how scenes are described. In addition, when people tell stories com-
plaining about the actions of others, resolutions are often absent.3 As Riessman
(2008) notes, it is important to open up what can count as a story to legitimize
peoples varied styles of storytelling. Yet, while opening up the form is neces-
sary, there needs to be some form. To say that all talk is narrative makes the
notion of story meaningless. Stripped to its bare bones, Idefine a sequence of
two or more temporal events that convey an evaluation as a story. The events
could concern the past or they may be about an imagined future.
In the hearings, Ilooked for small story-comments, as well as full-blown
narratives.4 In examining what people said, Iidentified stories liberally, includ-
ing emotionally marked evaluations that might have only two events. For
instance, Excerpt 7.1 illustrates the one instance of testimony in the New Jersey
hearing by a con-speaker identified as astory.
Excerpt 7.1(NJ)
And my biggest burden is my horror for my grandchildren. Because Ihave
two granddaughters that Ireally do not want them to grow up in a society
where theyre confused.Are we gonna redefine what a woman is? Are
we going to redefine what a man is? Were redefining something thats
been from the beginning of time. And in my heart, my heart is that Idont
want my grandchildren to grow up with a confused society. Thankyou.
Admittedly, this small stretch of talk pushes the boundaries of what we usually
mean by narrative, but using the above definition, it is a small story. It includes
an imagining of the future (if this bill is passed) in which (1)her granddaughters
Storytelling and SocialChange 127
TABLE7.1
New Jersey and Colorado Storytelling Profiles
NJ CO
Hearing Date 12/11/2006 3/31/2011

Hearing Length 3.6 hrs 7.5 hrs
ProCivil Union Speakers 39 62
Number (%)who told stories 30 (73%) 45 (73%)
ConCivil Union Speakers 13 18
Number (%)who told stories 1 (8%) 5 (28%)
grow up and (2)gender roles are redefined. As a result (evaluation), the grand-
daughters are confused and she, the grandmother, is horrified. Table 7.1 presents
an overview of the two hearings with regard to speakers usage of stories.
How Pro-Speakers Stories Argued forSocialChange
Among pro-speakers there were three main arguments that stories advanced. The
most frequent story-argument, told largely by gay and lesbian speakers, was a
narration of the persons life that, through the details provided, made visible how
similar gay parties were to everyone else. Given the similarity of values, desires,
and life activities, the stories, albeit with different degrees of explicitness, argued
that a fair response was similar treatment with regard to marriage rights. Asecond
story type, told by parents of gay and lesbian children, attended to listeners as par-
ents and potential parents. This second story type appealed to the assumed desire
of all parents to ensure their children would be treated reasonably and fairly. The
last type of story, sometimes self-standing but often paired with the similarity
narrative, recounted a difficult and painful sequence of events that happened to
a speaker because American society devalued gays and lesbians. Approving the
bill was a way to ensure that such acts of disrespect became a stance of thepast.
STORY-ARGUMENT #1:IM JUST LIKE YOUBUT
A first example of an Im just like you but story is seen in the fourth
speaker at the Colorado hearing. Acouple comes to the microphone together,
and following her partners story, Lisa Green said the following:
Excerpt 7.2 (CO, Speaker4)
Good afternoon Mr. Chairman. Thank you for the opportunity to speak
today. Im not sure that theres one specific moment in time where Ior any-
body else for that matter got instructions on how to be a good American. For
me, I think it began when Imet my father every night at the flagpole to help him
lower and fold the stars and stripes correctly in a perfect triangle. Even though
Idont know exactly how or when Ilearned to be a good American, Im clear
that Ive understood the expectations from an early age. And those expectations
have been a powerful force in guiding my life decisions. Ive worked since
Iwas 16. Like you and many other Americans Ipay my taxes. Ireturn my
library books. Ioccasionally go to church. Ivolunteer my time in the commu-
nity. Ivote. And Ipick up my dogs poop when Im walking in the park. Ive
paid off both student loans. In my work as a psychotherapist, Ihelp people
with sometimes life-threatening pain to get to a place where they can become
productive and fulfilled citizens. And Iteach them, along with my 13year-old
son, which mind you is not an easy task, that sometimes doing what is right
and responsible is not based on whether you feel like it ornot.
[[talks about getting multiple sclerosis and how that has changed
her life, and how great her family and friends have been]] I know that
because Ilove a woman, another human being who happens to be of the same
sex, I-we are vulnerable because we do not have the strongest legal standing
to take responsibility for and care for one another.
Colorado Speaker 4 opens her testimony by recounting how she came to
grow up as a good American. The details her story includesfolding the flag
nightly with her fathercreate a portrait of a person who has been raised to
love her country. These particulars show her to be patriotic, an argumentative
move that gently counters the possible association created in mid-20th-century
America of gay people not being fully committed Americans. Although the
connection between these identities is not asserted explicitly in contemporary
America, the repeated references made by gay speakers to their patriotism
points to this associations lingering sensitivity. If there were no societal beliefs
that gay Americans might not be patriotic, there would be no need to repeat-
edly claim how patriotic the self was. Speakers arguing against marriage rights
rarely engaged in such patriotism invocations.
It is through concrete details that stories gain their power to move listeners.
Through the litany of her lifes activitiespicking up her pets poop, paying
student loans, teaching her teenage son to do what is rightit becomes easy
for hearers to see how similar the speaker is to themselves. The repetition and
listing, as Tannen (1989) notes, is a typical way storytellers build involvement.
The complicating event in her narrative is that her loved one is a woman, and
because of this difference, framed as a small one, the speaker is vulnerable and
denied the rights other Americans have. The resolution to the storys problem
lies in the hands of the legislators:passing the civil unions bill, the speakers
story shows, will remedy the unfairness affecting a good American.
A second example of an Im just like you but story is seen in New
Jerseys 27th speaker. This speaker testifies:
Excerpt 7.2 continued (NJ, Speaker27)
Hi Im Steve Macintyre. Ilive in North Plainfield, New Jersey. And Idont
represent any group. Im just a regular guy. Im just a regular New Jersey citi-
zen. Im a voter. Im a taxpayer and Im also gay. And um-an-my personal
storys that Ive had the incredible fortune to meet the man of my dreams
when Iwas in college. And um for 20years weve been together. Ah happy,
healthy, weve-you know moved around New Jersey. We have a house
together. And um among all of my brothers and sisters and cousins weve
been together the longest and have had clearly the most successful uh lov-
ing, long term relationship of all of them. And in my moms condo in Coco
Beach Florida, she has pictures of all the weddings that uh have taken place
in the family. And the only couple whos not recognized with a wedding photo
is me and Keith. The one couple that has been together the longest. And um,
if you enact-If you vote through civil unions thats not gonna change that.
Its still gonna be disrespectful to the relationship that Ihave with Keith.
And umm fer-fer somebody whos been together for 20years, what-whats
the one-whats the one word that would best describe his relationship to
me? Um, hes not my roommate. Hes not my partner. Hes my husband.
And Im urging you to make him legally my husband.
Macintyres testimony begins with category identificationscitizen, voter,

taxpayer, regular guythat show him to be just like those to whom he is speak-
ing. He also, similarly to the Colorado speaker, narrates life events that are eas-
ily recognizable ordinary activities:moving around, getting a house together,
and visiting family. Macintyre is unlike others in that he is gay and has been
in his committed relationship a long time, much longer than many marriages
last. His story underscores that his conduct enacts not just ordinary behavior,
but also a societal ideal. Twenty years after starting a relationship, he remains
with the same man. Not having a picture of himself and his partner in his
mothers photo display of family weddings symbolizes the unfairness he has
experienced. It is a telling particular that drives home how being gay makes
a difference in how one is treated and what is possible. The lack of a wedding
picture is because New Jersey will not allow him to marry, and this becomes
his argument why the legislators should not pass the civil union bill but instead
craft a bill that extends full marriage equality.
Stories overcome otherness. Delgado (1988, 2412) notes that storytell-
ing is for outgroups, groups whose marginality define the boundaries of the
mainstream, whose voice and perspectivewhose consciousnesshas been
suppressed, devalued and abnormalized. The many stories told by gay and
lesbian citizens that brought to life similarities with mainstream others made
emotionally vivid why social change was needed.
STORY-ARGUMENT #2:LETS MAKE AMERICA A GOOD PLACE

FOROUR CHILDREN
A second kind of story told by relatives, but especially parents, narrated the
hopes or fears speakers had regarding their children (or grandchildren) and
a parents longing to have his or her children treated fairly so they too could
pursue happiness. Afirst example of this type of story is seen in the testimony
of Speaker 27 in Colorado.
Im Jodi Applegate. I came here to speak about this because it truly
affects my family so thats who Iam representing. Thank you Mr. Chair
for letting me speak, and I thank the Committee members as well for
their attention and time. My husband of 46years and Ihave the-have
the privilege of raising our two daughters in Colorado. We love this
state. Um needless to say without taking undo credit we are very proud
of the responsible accomplished women our daughters have become.
And we love them and we love the new son and the new daughter that
they have brought into our lives as well. During our journey as parents,
there are many times when we had to regroup, reassess, learn new skills,
change our expectations. But one thing we never dreamed we would have
to change or compromise was our assumption that our children were equal
before Colorado law. When our youngest daughter decided to marry
she and her husband received a vast array of legal benefits to help
them fulfill their commitment to each other. When her sister chose
her life partner and was ready to make a serious lifetime commitment
to another person, they went to a lawyer, and they spent over $2,000.
And that together with a few bills that addressed a few problems
Im afraid of many things that could happen to them. For instance, per-
haps because a piece of paper was lost or forgotten at home, Im afraid
that in a medical emergency or uh illness, or even old age, Shannon my
daughter and her dear Susanne wont be able to take care of each other
and fulfill their commitment to each other the way that their father and
Ido for ourselves and her sister and her brother-in-law willdo.
Applegates story captures the love of a parent for her now-grown daugh-
ters, the unfair burdens faced by her daughter who is lesbian, and her fear that
because her daughter cannot have her commitment to her partner recognized
as a marriage, when she is ill she will be denied care that everyone wants to have.
Following her opening, she drives home a taken-for-granted assumption that
any Coloradoan could expect the law to treat all children fairly and equally.
Her storys particularities make visible that this is not how the law is currently
working. Applegates testimony makes clear that changing the law is a way to
remedy this injustice.
A second example of the care for our children story, which includes a
few additional twists, is seen in the testimony of Karen McFadden, one of the
plaintiffs in the New Jersey court case. McFaddens story included Im just like
you features seen in stories of many gay and lesbian citizens, and her story also
included fears she had for her children in the present and in an imagined future.
Excerpt 7.4 (NJ, Speaker2)

We are the Nicholson-McFadden family. My name is Karen. My part-
ner Marcy. My son Casey and my daughter Maya. Marcy and I have
been together for 17 years. Um we have a home. We run a small busi-
ness. Were very active in our kids schools and in our community. And
so most people that-that know us, friends, family, neighbors ummm
in-in all ways we are a married couples except for one, which is that
were not married.[tells about the process of trying to get a marriage
license] And it [not having a marriage license] scares us when we think
about the message that gets passed on to Casey and Maya. Um you know
the only honest answers the one thats really devastating. When Casey says
to us, Mommy, Momma, why wont the la-government let you get mar-
ried? Theres only one answer. The government thinks its okay to treat
us differently because were gay. Theres no other reason. Its the only
reason we can answer. Because were gay were not allowed to get mar-
ried. Its a horrible lesson to teach children. Barring their parents from
marriage.[164 words] We are a family. We are a family unit. But
barring us from marriage teaches them that discrimination is okay. Its
a terrible message. Because discrimination is destructive. It hurts us
not being able to participate. We are always the outsiders looking in
the pane of glass watching other couples joyfully participate in a mar-
riage. But were never allowed to.And I think about my children and
all the other children out there in New Jersey. How do we talk to them
about their future? How do we talk to them about their future and what
life should look like in marriage cause marriage is a good thing. And
I-an I was thinking about this and saying, wed love to give them the
easy, sensible answer, which is Honey one day youre gonna meet a won-
derful person, youre gonna fall in love, and youre gonna get married. But,
if you choose -((laughter)) It will happen. If you choose civil unions, it
gets really murky. Because now I have to say to my son and daughter, who
I would do anything for, Well actually, youll only be able to get married if
you fall in love with someone of the opposite sex. Because if you happen
to fall in love the way Mommy and Momma did, youll never be able to
get married. Theres something different for you. The government thinks
its okay to treat you differently because youre not quite as good. Your
relationship isnt quite as valuable. Your family isnt quite as important.
McFaddens testimony illustrates two additional ways that stories argued for
social change. The first way is to narrate how children of gay parents are being
hurt by being denied the respect that children of heterosexual unions receive.
This argument was advanced as a principle in her testimony, as well as well as
reinforced through her storys particulars.
A second story device McFadden used was to construct an imagined dia-

logue that she would have with her children as they got older and thought
about their futures. This dialogue was one that she implied any parent would
have with all the other children out there in New Jersey, that is, it is part
of the American family ritual for how parents should be able to talk to their
children. Of note, she uses reported speechHoney one day youre gonna
meet a wonderful person, youre gonna fall in love, and youre gonna get mar-
riedto convey what is the desired, expected future for ones child. This pro-
jected future falls apart, however, if the child happens to love a person of the
same sex. Straight speakers told similar stories. A father of two young children
told about his happy marriage and how it was not threatened by gay couples
being able to form committed relationships. He then talked about how much he
loved his children. He wanted his childrens best and if one of them were gay,
he would want this child to have the recognition for his or her partner that he
had experienced.
Richard Weaver (1953) argued that every society has god and devil terms.
God terms are powerful words and phrases with which everyone agrees; devil
terms are words that reference what must be opposed.5 In American public
life, and presumably in most societies, children is a god term. Anything that
harms children should not be allowed to happen. Conversely, if an action is
good for children, it is a good policy. Aspeaker need do no more than assert
a policys effect on children to argue for a change that should happen or be
avoided. In the hearings, the good of the children was invoked on both sides
of the debate, but it was more often speakers arguing for marriage equality who
invoked the god term through astory.
STORY-ARGUMENT #3:TERRIBLE THINGS HAVE HAPPENED

BECAUSE SOCIETY STIGMATIZESGAYS
Testimony of gay speakers often included strings of stories. One common point
that stories made was of the disadvantage, loss, and suffering experienced by
the gay person because of the lack of marriage rights. Because gay citizens
could not marry, speakers were forced to deal with difficult situations. Testifiers
told stories about not being able to put their partner on their health insurance
and the resultant expense and stress this caused; they told stories of not being
able to take an action for their child because they were regarded as not the
official parent; they narrated being denied visitation rights for their loved ones;
they detailed the aftermath of the death of a loved one where they had been
denied valued rights a spouse wouldhave.
Many of the negative actions that pro-speakers narrated related to the
denial of the right of marriage itself. Far less common, but particularly pow-
erful, were stories of how societys devaluing of gays and lesbians had led to
terrible things happening to a person. Speakers told stories of being bullied,

ostracized, or mocked. One particularly moving story occurred in the New
Jersey hearing where speaking with a quivering, emotion-filled voice a man
narrated the following:
Excerpt 7.5 (NJ, Speaker50)
Hello my name is Russell McTeague. And Ireside in Lawrenceville New
Jersey. Im trembling. My heart is pounding because this is a life-long
personal issue and Im here to speak very personally. And Ifeel a great
deal of fear in this room from certain people. Equality as someone as
said is-does not come on a sliding scale. Equal but different has not
worked in the past and it will not work this time. Im a person who was
born to express my sexuality in a homosexual way. Ihave a first cousin
who was born to express his sexuality in a heterosexual way and was mar-
ried and divorced five times in the state of New Jersey with full blessings
of everything. Because my society, my state, my family, my church told
me that I was wrong-When I was 29 years old I went through electric
shock therapy for three years that was supposed to change my sexuality.
It was a disaster to myself, to my partner, and to other people who were
involved in that.In March of 2007 my partner and Iwill be together
for 39years. He is 70. Iam 69. How long do we have to wait? We have
been second class citizens for our entire lives. Please you have the power
and the privilege. Im here imploring you. Do not ask us to wait longer.
Please grant us and all the other couples full equality in this state of
marriage.
McTeagues story of being treated with electric shock for three years in an
attempt to rid him of his homosexuality is likely to evoke horror and outrage
from listeners today. It can only be understood against a societal backdrop
which assumed that being homosexual was so awful that even radical treat-
ments would be warranted. McTeague highlights how this stance has been part
of being stigmatized his entire life and that making marriage possible for him
and other gays is a way for society to right thiswrong.
Dueling Narratives
As Table 7.1 shows, most narratives were told by speaker arguing for mar-
riage rights, but there were stories told by speakers opposing marriage rights.
One especially memorable exchange of stories occurred between a testifier, an
African American man who was a radio show host and also an ex-Colorado
senator, and a Democratic judiciary committee member. Consider the stories
these two men told and the complexity of argument and identity functions they
served. Ex-senator Jones testified following a pastor who had argued for the
importance of maintaining the traditional male and female roles in the family.
Jonesbegan:
Excerpt 7.6 (CO, Speaker 34& House Representative)
Se-Jo:Oh okay Art [committee chair] alright thank you so much, thank you
so much. First of all, thank you uh Chairman Gardner. And to this-
this uh distinguished committee for being here. First of all, let me-let
me just-And-and the pastor probably stole some of my thunder. Um
Im not gonna get into the religion expect-aspect of it but I have a
super problem with the civil rights thing about this. Now when the
gay lesbian groups compare this issue to the issue of Americans who
are black and to civil rights, I find it very disingenuous. Let me just
give you a story. Just a-if I can do this in about another two minutes
and 45 seconds. I was born in one of the most bastorous, hate-hateful
states in the union in the 40s and the 50s. Where that-being black was
almost like being a sin, were talking about second-being a second-
class citizen. We were-We were below that. When-when we-when the
white race never recognized that we were humans. When the white race
never gave my mama and my daddy the respect of being a Mister and
a Misses no matter how much education that they had. And both of
my parents were very well educated. They were still Alice Jones and
Abraham Jones, kay? So you never had a chance to become what you
really wanted to be living in that society. Id seen and heard so many
tales as a young kid growing up of so much hatred. And that if you
look at history in the state of Mississippi there were people being-
Blacks being hung almost once a week. And it was like a picnic for
racists. They would bring their families there to watch it. I remember
the case of Emmet Till so much. And a lot of you read the history
of Emmet Till, who came down to b-be with his grandmother in the
northern part of Mississippi. And just because being from Chicago-
And he was a young kid, 14, 15 years old, and just because he wink at a
white female he was drug out of his grandmothers house. And one of
the most horrible deaths ever witnessed in the state of Mississippi. And
when his mother came down for his funeral she asked the undertaker
to leave the casket open. I want you to see what they did to my baby.
So this isnt a civil rights man. We have s-I-you can sit there and look
at me and you can assume what I am. I would never be able to assume
what you are, whether you gay or straight unless you told me. So com-
paring this to civil rights, to me, is wrong. I am against this bill for a
lotta other reasons and I wont even get into those.(231 words)
Uh may I close with this-one thing. When I was talking about my
mother after my father died. When I was five years old and-And my
mother never remarried again and she used to take me downtown

and just-in Hattiesburg Mississippi thats where she-she taught
school for 50 years. And she took me downtown on Saturday morn-
ings when she had to go pay her bills. When there were still drinking
fountains at the Crest store in Hattiesburg that said colored and
white. And my mother took me down there because on Saturday
mornins the KKK would have a march down Main Street. And the
KKK wore the-they-they wore the robes but they didnt wear the
hoods. And they-they would tell you that was their way to intimi-
date you. To let you know who they were. So that when I went to
drink that water out of that colored fountain that was so warm I
always wanted to know how would it be able to drink that water
out of the white fountain? My mother said, no no no dont you
ever think about doing that. I dont want them to come to my house
to take my baby. So this is not a civil rights (issue) folks. I want
you-And I am black. And I am a Republican. And I am very con-
servative. And I want you to stick to your principles. And yes, when
somebody gets up here and says they are voters. Well I am a voter,
and I got 20,000 people who listen to me on a Saturday morning
that are voters too. So do the right thing.
Chair:
Thank you Senator. Questions for Senator Jones? Uh, oh
RepresentativeKagin.
RK:Thank you Mr. Chairman. Senator uh when you talk of the lynch-
ings of people just because theyre black it-it chills my spine. And
when you talk about this issue not being an issue of civil rights, my
grandfather was tortured to death in June of 1941 in front of a bay-
ing crowd. One of those crowd had a camera and took a photograph.
And it became a world-renowned event as a result. And the reason
my grandfather was tortured to death in front of that crowd in June
of 1941 was no better than the reason that the young man you talked
about who was hung. And it was borne of the same senseless hatred
and bigotry and viciousness, and lack of acceptance as a full human
being. In the case of the young man, it was because he was black. In
the case of my grandfather, it was because he was a Jew. And in the
case of many beatings and killings of people even to this day, it is
because they are gay. And they no more choose-chose to be gay than
yu-the young man on the tree chose to be black. Or my grandfather
chose to be Jewish. And they are all, all those groups, and others,
sadly, have been subjected to unreasoning hatred, disgust, contempt,
disapproval, and denial of their humanity of their worth as a human
being. And yes sir of their civil rights. And in that aspect, Iwould no
more like to have contempt and see the contempt in the eyes of the
world and be subject to being beaten up and being subject to being

disparaged and uh ignored and-and diminished because Iwas black,
because Iwas Jewish or because Iwas gay. It would be equally unjust.
And it would be equally in my view, a violation of my civil rights and
my right before God and man as a human being. And thats why
Ifind it hard to understand why you who have such understanding
of the injustice, of cruelty and hatred towards somebody on the basis
of their status, can only see that to the extent that it is not their status
of their sexual preference.
Jones story evokes iconic events in the American story of race: from lynchings to
separate water fountains, from the Ku Klux Klan to the absence of the minimal
respect that address forms give. Jones story also makes visceral the sense of fear
that black Americans in earlier years routinely experienced toward whites. When
he narrates his mothers reaction to his childhood wish to drink from the cold,
whites only water fountainMy mother said no no no dont you ever think
about doing that. I dont want them to come to my house to take my babywe
feel the mothers fear for her son. Multiple pro-marriage rights speakers used the
image of separate water fountains to argue for marriage equality. Jones uses his
story to support the claim that gay rights are not a civil rights issue.
Representative Kagan challenges Jones through telling a story that advances
an argumentative point. Similar to Jones story, Kagans is equally powerful,
referencing the personal side of another hate-motivated time. His narration
about his grandfathers murder because he was a Jew captures the inhumanity
people have visited upon categories of others. Jews, blacks, and gays, Kagan
contends, have all been disparaged and denied human rights including the right
to life, because of who they are. How, Kagan questions, given Jones has expe-
rienced injustice firsthand, can he justify continued discrimination? Kagans
counter-story problematizes Jones use of his experienced past discrimination
to legitimate cruelty and hatred toward somebody on the basis of their sexual
preference. There is an outburst of applause, followed by a reprimand from the
chair for the outburst.
Excerpt 7.7 (CO, Chairs Response to Outburst of Applause)
I understand there is passion on both sides. I appreciate everyone being
here but we are-We are having a public hearing before the House Judiciary
Committee and General Assembly. This is not a theater or debating
societyfolks.
The chairs reproach is interesting because it legitimizes passionate expres-

sion in hearing talk, but forbids it in audience responses. Following the chairs
remark, Jones is given an opportunity to respond. Jones states that being gay is
not a visible identity the way being black is and concludes by making a religious
argument, highlighting what the Bible says and that God doesnt make mis-
takes. Following this exchange the hearing moves to the next speaker.
Stories enable people in stigmatized groups to make a case for fair treat-
ment, either for themselves or for other categories of people. Stories also may
be used, as in seen in Jones testimony, to justify a ranking among categories
of marginalized people. The sheer number of stories in the hearings told by
speakers in favor of marriage rights speaks to the particular usefulness of sto-
ries for challenging what is taken for granted by society. But it is important to
remember that stories are not a one-purpose tool. Storytelling, as Brooks
(1996, 16)remarks, is a moral chameleon, capable of promoting the worse as
well as the better cause.
An additional function of stories that seek social change is that they may
motivate others to speak up. Acompelling story about the delights and difficul-
ties of being gay can move a person who views his or her sexual orientation as
a private matter to step into the limelight. Personal stories give others with a
similar story the courage to speakout.6
BEING ONTHE RIGHT SIDE OFHISTORY
Between the New Jersey hearing in December of 2006 and the Colorado hear-
ing in March of 2011, four and a half years passed. In this period, attitudes of
Americans shifted from opposed (55% to 35%) to equal percentages for and
against (46%)7 same-sex marriage. This attitude change in the larger American
public was reflected in the also-changing perception by those opposed to mar-
riage rights that legalization of same-sex marriage was inevitable.8
In the testimony of citizens advocating for civil unions in the 2011
Colorado hearing, an argument recurred repeatedly that was entirely absent
from the New Jersey hearing. Seven times across the seven and a half hours of
testimony, pro-speakers concluded with an appeal to committee members to
make a decision that would be on the right side of history. Often this exact
phrase wasused.
Excerpt 7.8(CO)
(a)Speaker16
Thank you all for the o-the opportunity to speak to you today. And
Iwish you all that you will take the moral stance and do what is right.
And stand on the right side of history.
(b)Speaker39
I come before you today to ask you to do the right thing. To be on the
right side of history on this issue. To stand up for what is right. To resist
the divisive partisanship. And do the rightthing.
It was also the case that several speakers invoked the right side of history by
imagining a scene in the future and reflecting back on the meaning of peoples
actions, wondering aloud why earlier generations did not do what that future
society had come to regard as the right and moral response.

Inevitably some state is going to be the last one to move forward on this. The
last one to ensure that justice prevails. Some state, 20, or 50, or 100years
from now, is going to look back and wonder what on earth its leaders were
thinking, and why they waited so long to do the right thing, the just thing,
the moral thing. It is inevitable. As Reverend Dr.Martin Luther King said,
the arc of moral history is long but it bends toward justice.
In concluding stories with an appeal to be on the right side of history, speakers

are arguing both the inevitability and the rightness of what they are proposing.
That the appeal was not isolated to a single speaker but was used repeatedly across
speakers evidences its expected persuasiveness. Moreover, the notion of being on
the right side of history was not restricted to the hearings but began to appear in
many different kinds of public discourse. In January 2012, The News Tribune pub-
lished an editorial arguing in favor of same-sex marriage and concluding by say-
ing, Legalizing same-sex marriage would help achieve those goals, and it would
put the State of Washington on the right side of history.9 This reference also
surfaced in ads. In April 2013, before the US Supreme Court released its opinions
in the same-sex marriage cases, Ireceived an email ad from the Human Rights
Campaign (HRC) asking me to get a Visa credit card sponsored by HRC and
offering four reasons to do so. Its third reasons stated, With your stylish HRC-
branded card, youll show family, friends, and merchants that youre standing on
the right side of history. Apply now.10 That so many people were comfortably
asserting what history demanded showed that society was changing.11
It would be inaccurate to say that the stories advocates told in these judi-
ciary committees were the cause of this societal change. At the same time, it
is difficult to imagine that they were not an important influence. People who
spoke out at the hearings probably told others about their testifying and in
the process could be expected to share their personal story with these cowork-
ers, family members, and friends. As political scientist Diana Mutz (2006) has
shown, people participate in public meetings and take social action because
they have a personal connection to someone who is affected. That is, it is rela-
tionships with others, not abstract principles, that shape peoplemost.
In addition, particularly vivid stories told in these hearings were picked up
and circulated in the news and on the Internet. Astory at the Iowa hearing told
by an articulate male college student who grew up with two moms was posted
on YouTube. This video of his testimony went viral and received a half-million
hits in the first two days after it was posted.12 Through all these avenues, the
stories from the hearings circulated, affected those who heard them, and with
the passage of but a few years made it possible for others to assert that being
for same-sex marriage was being on the right side of history.
PARTTHREE
Comparisons and Conclusions

8
Morality Arguments inthe DOMA Debates
What are legitimate government purposes?

(1) Answer offered in the last decade of the 20th century
Upholding traditional morality, encouraging procreation in the context
of families, encouraging heterosexuality. (House of Representatives
Report on DOMA,1996)1
(2) Answers offered in the 2nd decade of the 21st century
(a)I must admit I find it unbelievable that in the year 2011 there is
still a need to hold hearings and debate whether or not a human
being should be able to marry the one they love The Defense
of Marriage Act is a stain on our democracy. We must do away
with this unjust discriminatory law once and for all. (Representative
John Lewis, 2011, Senate hearing to consider repeal ofDOMA)
(b)Its time for the Court to recognize that this discrimination,
excluding lawfully married gay and lesbian couples from Federal
benefits cannot be reconciled with our fundamental commitment to
equal treatment under law. This is discrimination in its most very
basic aspect. (Solicitor General Verrilli responding to a question from
Chief Justice Roberts during oral argument about DOMA,2013)
From 1996 when DOMA was passed by Congress and signed into law to consider-
ation of its repeal by the US Senate and Supreme Court more than 15years later,
something changed in American society. In questioning the attorney representing
Edith Windsor in the 2013 DOMA case, Chief Justice Roberts asserted that there
had been a sea change since 1996, and he asked the attorney to account for the
change. His presumed purpose in describing the societal change this way was to
challenge the attorneys proposal that gays and lesbians should be given strict
scrutiny, a standard used for particular groups that had experienced a long history
of (unfair) discrimination. What is of interest, though, is the taken-for-granted,
completely uncontested status of the sea change description. Neither the attor-
141
ney nor any other justices or attorneys challenged that a sea change had occurred.
142 Comparisons and Conclusions
In institutional encounters focused on disputes about issues, speakers dis-

play a stance toward the issue, an act which positions them as a certain kind
of person at the same time it implicates agreeing/disagreeing others.2 In these
disputes about passing or overturning DOMA, the legality of the legislation,
the morality of gays and lesbians, and the morality and reasonableness of the
speaker and those who took the opposing position were central foci. In earlier
years in the United States, as Inoted previously, what was legal and what was
moral were tightly bound. The binding has loosened considerably, but the two
remained tethered in 21st-century America.3
Legality has to do with what is and should be the law; it is the purview
of legislators and judges. The debate about DOMA was fundamentally about
what should be the law. Morality has to do with what is right and wrong, good
and bad. Explicit pronouncements about what is moral are philosophys and
religions jobs, but implicit assessments of what is moral are the purview of
all talk. In everyday talk, judgments of morality are infused by the larger cul-
ture and displayed through what people in a society at any particular time
value or shun. But no speaker starts from scratch. Bahktin (1984, 202)noted
that words are never free from the aspirations and evaluations of others. In
essence, words pick up the flavoring of the company they keep and the flavor-
ing is detectable as words enter a less frequented context. Just as a non-expert
cook may not have full command of the combinatorial effects of ingredients, a
speaker, likewise, may create meanings different from intended.
In this chapter I make visible the discursive character of the sea change.
Ishow how a mere 15years changed what was and was notand implicitly what
could and could not beasserted in a legislative hearing and in the court. In the
1996 hearing, the 2011 hearing, and the 2013 Supreme Court exchange, claims
about motives, morality, and legality permeated talk.4 What was asserted or implied
to be (im)moral or legal (unconstitutional), though, was markedly different.
Speakers stance-taking about the issue and opposing others changed. Following
a description of the three debates about DOMA, Ilook closely at the talk in each
site. Juxtaposition of the three exchanges makes visible how time and genre affect
whats sayable. Comparing the 1996 and 2011 congressional hearings holds con-
stant the topical focus and the genre, and allows us to consider the significance of
historical time regarding the sayable. Comparing the 2011 Senate hearing and the
2013 Supreme Court oral argument holds the topic and historical time (relatively)
constant and enables a consideration of how genre affects what may besaid.
First, a brief comment:The congressional hearings differed from the state
ones in several noticeable ways. In contrast to their state counterparts, the
US congressional hearings were relatively short. The House hearing took 4.4
hours, which included a recess to vote on another matter, and the Senate, 2.6
hours. This brevity of the hearings can be tied to the fact that the number of
testifiers was limited and speaking rights for all were circumscribed. Time limits
were monitored carefully by the chairs and enforced politely (e.g., you may have
one additional minute). In addition, there was much more reading and far less
Morality Arguments in the DOMA Debates 143
extemporaneous presentation of testimony and, at the same time, much more

questioning. In the first hearing, every testifier was questioned and in the sec-
ond, three-quarters of the testifiers were questioned.5 This contrasts dramati-
cally with the state-level hearings, where in three of the six hearings nobody
was questioned and in the other three, the percentage ranged from 5% to16%.
The Three Debates aboutDOMA
In May 1996, a subcommittee of the Judiciary Committee of the US House of

Representatives held a hearing to consider H.R. 3396, the Defense of Marriage
Act. DOMA included three short clauses.6 The first one gave a title to the bill;
it was to be called the Defense of Marriage Act. The second clause specified
that the power to define marriage was reserved to the states and no state could
be forced to accept another states definition, and the third specified that for
federal benefits, marriage was to be defined as a union between one man and
onewoman.
The judicial subcommittee included 13 members and was chaired by
Representative Canady from Florida. After committee members made state-
ments, the committee took oral and written testimony and questioned the wit-
nesses. Table 8.1 identifies the witnesses by their order of testifying and in terms
of their position on thebill.
On May 30, 1996, a couple of weeks after the hearing, the House Judicial
Committee considered a set of amendments to the bill proposed by opponents
TABLE8.1
Witnesses atthe 1996 House DOMA Hearing
Position
Name Affiliation on DOMA
Terrence Tom Hawaii State House Representative Pro

Edward Fallon Iowa State House Representative Con
Marilyn Musgrave Colorado State House Representative Pro
Ernest Chambers Nebraska State Senator Con
Deborah Whyman Michigan State House Representative Pro
Hadley Arkes Professor of Jurisprudence & American Institutions, Amherst College Pro
Andrew Sullivan New Republic, Editor Con
Dennis Prager LA Radio show host and author Pro
Nancy McDonald Parents, Families, and Friends of Lesbians and Gays, National Vice President Con
Maurice Holland* Oregon School of Law, Dean Pro
Lynn Wardle Brigham Young Law School, Professor Pro
Elizabeth Birch Human Rights Campaign, Executive Director Con
David Saperstein Religious Action Center of Reform Judaism, Director and Counsel Con
Jay Sekulow American Center for Law and Justice, Chief Counsel Pro
*Mr. Holland did not testify because of illness. His comments were put into the record.
and voted all of them down; then the committee voted to endorse H.R. 3396
and sent it to the whole House for consideration.7 Along with the 2-page bill,
there was a 45-page report describing the need for the legislation, what hap-
pened in the hearing, the committees votes, reports detailing the kind of finan-
cial impact that could be expected by passing the bill, two opinions from the
Attorney Generals office that the bill was constitutionally sustainable, and
a statement from those dissenting.8 Subsequently DOMA was passed by large
majorities in both the House (342-67) and the Senate (85-14) and signed into
law by President Clinton.9
In the DOMA Report, four government interests were identified as being
advanced by Bill H.R. 3396: (1) defending and nurturing the institution of
traditional heterosexual marriage, (2) defending traditional notions of
morality, (3) protecting state sovereignty and democratic self-governance,
and (4)preserving scarce government resources.10
The second hearing about DOMA was the US Senate Judiciary Committees
hearing in July 2011.11 The hearing, entitled S.598, The Respect for Marriage
Act:Assessing the Impact of DOMA on American Families, proposed strik-
ing down DOMA. Following statements from several committee members, tes-
timony was taken from 11 witnesses (Table 8.2). Witnesses were divided into
three panels, with presenters questioned after each panel concluded.
The second hearing differed from the first in two important ways. The first
hearing restricted testifiers to state-level legislators, organizational spokesper-
sons, and legal experts; in the 2011 hearing, though, three ordinary gay citizens
were allowed to speak about the impact of DOMA on their lives. Second, the
opinion tilt of witnesses changed from more favoring DOMA to more being
against DOMA. In each hearing, the percentage of testifiers favoring the pro-
posed bill was larger than those against it. In the 1996 hearing, 57% of testifiers
TABLE8.2
Witnesses atthe 2011 Senate Hearing about OverturningDOMA
Position on
Name Affiliation Overturning DOMA
John Lewis Georgia, Representative to US House Pro

Steve King Iowa, Representative to US House Con
Jerrold Nadler NewYork, Representative to US House Pro
Ron Wallen Indio, CA Pro
Thomas Minnery Focus on The Family, Senior VP for Public Policy Con
Susan Murray Ferrisburgh, VT Pro
Andrew Sorbo Cheshire, CT Pro
Joe Solmonese Human Rights Campaign, President Pro
David Austin Nimocks Alliance Defense Fund, Senior Legal Counsel Con
Edward Whelan Ethics and Public Policy Campaign, President Con
Evan Wolfson Freedom to Marry, Founder & President Pro
favored passage of DOMA and 43% were against it; in the 2011 hearing on
the Respect for Marriage Act (i.e., to overturn DOMA), 36% favored retaining
DOMA, whereas 64% favored its overturn.
At the conclusion of the hearing, the Judiciary Committee voted to
advance the bill to the Senate. In the end, however, because of a concern that
those favoring the Respect for Marriage Act did not have sufficient support to
stop debate and call the vote, the bill did not move forward to the full Senate.12
By December 2012, the US Supreme Court had agreed to hear the case regard-
ing DOMAs constitutionality. When the bill went to the Supreme Court for
consideration, 212 members of Congress filed an amicus brief supporting the
position that Section 3 of DOMA was unconstitutional.13
Consideration of DOMA, officially US v. Windsor, went to the US
Supreme Court as one of two same-sex marriage cases that were scheduled
for oral argument on consecutive days in March 2013. Both cases involved the
Court in consideration of complex jurisdictional issues, as well as the consti-
tutionality of particular laws. The first case, Hollingsworth v. Perry, popularly
referred to as the Prop 8 Case, concerned two issues: (1) whether the petition-
ersprivate California citizens rather than the statehad standing to bring
suit; and (2) whether the Equal Protection Clause of the 14th Amendment pro-
hibited California from defining marriage, as Prop 8 had, as one man and one
woman.14 Three attorneys participated in oral argument, one arguing for the
petitioners who sought to have Prop 8 upheld, a second arguing for the respon-
dents who sought to overturn Prop 8, and the third, the Solicitor General in
the US Department of Justice, speaking as an amicus curiae supporting the
respondents.15
In the DOMA case, the Court identified three questions to be addressed
during oral argument. The first two questions concerned technical jurisdiction
issues.16 The third question, upon which I focus, concerned whether DOMAs
definition of marriage deprived legally married same-sex couples of their
constitutional rights. Five attorneys spoke during oral argument with time
divided among the three issues and particular attorneys arguing either jurisdic-
tional or constitutional issues. The defense of DOMA had been advanced by
the Bipartisan Legal Advisory Group (BLAG) of the House of Representatives
and Attorney Paul Clement represented them. Arguing for the respondent and
against DOMA was Attorney Roberta Kaplan. Finally, speaking as an amicus
curiae in favor of the respondent was the Solicitor General, Donald Verrilli,
who had also argued in the Hollingsworth case.
On June 26, 2013, the Supreme Court announced its two decisions. In the
Prop 8 case, the court made its decision on the issue of petitioner standing. The
Court declared that private California citizens did not have the right to appeal
a case in the US Supreme Court. This kind of action could be taken only
by the state. The practical upshot of the decision, one which did not engage
with whether prohibiting same-sex marriage was unconstitutional, resulted in
upholding the ruling of the lower court that had declared Prop 8 to be illegal.
Gays and lesbians in California began to marry again.17
The DOMA case, decided by a 5-4 vote of the Court, held that each US
state has the power to define marriage and found that DOMA goes against
legislative and historical precedent by undermining that authority by denying
legally married same-sex couples the federal rights of marriage. The Court
further held that the purpose and effect of DOMA is to impose a disadvan-
tage, a separate status, and so a stigma on same-sex couples in violation of the
Fifth Amendments guarantee of equal protection.18
Consider now how the arguments, their linguistic clothing, and the moral
identities that were implicated were similar and different in the two Judicial
Committee hearings and the Supreme Courts oral argument.
1996 vs. 2011:The Two Legislative Hearings
Discourses are coherent sets of beliefs about the world that reveal themselves
through a package of expressions (Foucault 1973).19 In American society, two
discourses about sexual orientation have circulated in the last half-century.
The first discourse sees sexual orientation as a matter of conduct that one
may rightfully assess as good or bad; the second regards sexual orientation as
a legitimate variation of kinds of persons, thus making equal protection an
issue. In both hearings, one finds each discourse, but the two hearings differ in
which discourse was dominant. In argument terms, the two hearings could be
described as having different presumptions and burdens of proof. The House
hearing presumed the reasonableness of the DOMA legislation; those oppos-
ing it had the burden to show why it was not needed. In the Senate hearing,
the presumption was with bill sponsors seeking to overturn DOMA, and the
burden of proof was with opponents who thought it should be retained.20
The debates about DOMA, both whether it should be passed and whether
it should be repealed, were matters of practical argument.21 Speakers arguing
for the proposed actionspassage in 1996 and repeal in 2011, highlighted the
bills advantages and pointed out why disadvantages would be small, whereas
speakers arguing against the proposal disputed the accuracy and reasonable-
ness of the proposition. In 1996 when the first DOMA debate occurred, argu-
ments were entirely in the realm of the hypotheticalwhat would or would
not result if same-sex couples were permitted to marry. By the second debate,
marriage between same-sex partners was a reality in multiple countries and US
states. The passage of 15 years changed what could be argued explicitly as well
as well as what could be implied through a speakers words and phrases. As the
selection of a term is rarely innocent, and it is rarely devoid of argumentative
purpose (Amossy 2009a, 2009b: 315), examination of terms can tell us how
notions of morality shifted.
The first hearing in 1996 occurred before Lawrence v. Texas (2003), the
Supreme Court case that overturned sodomy laws. In the House Report, where
the committee speaks in a collective voice, it states:
Excerpt 8.1 (DOMA Report 1996, 1516)22

Civil laws that permit only heterosexual marriage reflect and honor a col-
lective moral judgment about human sexuality. This judgment entails both
moral disapproval of homosexuality and moral conviction that heterosexu-
ality better comports with traditional (especially Judeo-Christian) morality.
This assertion in the 1996 report, in fact, became a key argument for the repeal
of DOMA in the later hearing. Jerrold Nadler, one of the House Representatives
who testified in favor of repealsaid:
Excerpt8.2
Some of Congress reasons for DOMA have now been disavowed, most
notably the claim that Congress can or should use the force of law to
express moral disapproval of gay and lesbian Americans.23
Moral disapproval of homosexuality and homosexuals was expressed straight-

forwardly in the first hearing. Consider just one example. South Carolina
Representative Bob Inglis questioned Colorado Representative Pat Schroeder
following her statement arguing against DOMA during committee members
opening comments. Schroeder had claimed that the bill was attacking the very
foundation this Republic sits upon.24 She went on tosay:
Excerpt8.3
You know, every day in the House we say The Pledge of Allegiance, and
we talk about liberty and justice for all. And today Im asking what part
of all dont you guys understand? Isee absolutely no reason for this bill
except to create a divisive issue in America, one more thing to stir people
up, to get hate radio going, to get everybody moving around.25
After being recognized by the chair, Inglissaid:
Excerpt8.4
Id simply respond to the gentlelady from Colorado by noting that this
Republic was founded on some basic statements of truth, and its really
interesting that in the Declaration of Independence it made some rather
bold assertions: These are truths that are self-evident. In other words,
there was no debate about those things and there was no sort of uneasi-
ness about asserting that there are some things that are true and right and
some things that are wrong. And that, Iwould submit, Mrs. Schroeder, is
whats been one of the strengths of this Nationis the ability to distin-
guish between right and wrong and thats what its abouthere.
Although Inglis comments do not name what is right and wrong, by virtue
of being one of the bill sponsors, it is easy to recover his stance of disap-
proval toward homosexuality. Because arguments regularly appear on sides
of disputes, listeners can easily infer a speakers argument without its full
articulation.26 Inglis comment also speaks to the tacit but important argu-
ment regarding how the content of US laws should be linked to religious
conceptions of the moral. In essence, his comments take the stance favoring
keeping the tie between traditional Judeo-Christian notions of morality and
legalitytight.
In both Schroeders and Ingliss comments we see strong attacks on the
morality of those opposing the speakers position. Schroeder frames bill sup-
porters as against liberty and justice, into divisiveness, and in favor of foment-
ing hate. In drawing upon an emotionally powerful American ritualthe
PledgeSchroder increases the force of her criticism. Inglis, too, quotes a
sacred American textthe Declarationto frame Schroeder and other bill
opponents as immoral persons. Not only is she unwilling to stand up for what
is right, she is positioned as lacking the ability to distinguish what is right
fromwrong.
The argument for DOMA in the first hearing was augmented through
morally loaded discourse moves to describe what was at stake. Table 8.3 identi-
fies several recurring practices and suggests how each does moralwork.
TABLE8.3
Discourse Practices inthe 1996 Hearing That Accomplished MoralWork
Practice Example(s) How Morality Is Implicated
Name of Defense of Marriage Act The name implied that an important

the bill institution was under attack and needed
to be defended; implicated that those
favoring it cared about marriage and those
against it, did not
Metaphorsof (a) The Hawaii court was engaged Metaphors convey what is valued or to be
(a)war in frontal attack on the avoided. Persons and their positions get
(b) disaster institution of marriage41 connected to good and bad values.
(b) Homosexual groups are seeking
to open the floodgates of same-
sex marriage42
Person/group Extremist homosexual groups, In labeling opponents extremists and
reference terms homosexual activists, and activists, it implies that there is only
for opponents judicial activists to refer to the a small number on the fringes who have
Hawaii court that initiated the this agenda; ordinary citizens do not have
issue43 the agenda to redefine marriage. To label
judges activists is to imply they are not
doing their job.
Few vs. Many Do the opponents of this bill Invokes democracy and the
contrast really believe that three judges on reasonableness of adhering to the will
Hawaiis Supreme Court should be of the majority; criticizes opponents for
permitted to redefine marriage for seeking to impose their preference on the
the entire country?44 many
Opponents of the bill did argue against it on equality and fairness grounds, as
evidenced in Schroeders comments, but in the 1996 hearing this was not a fre-
quent argument. By far the most common claim was that the bill was politically
motivated, serving no legitimate purpose.
Excerpt8.5
Rep. Barney Frank: The legislation is because the Republican national
campaign is not doing very well and there is a significant effort to change
the subject.This is largely political in motivation.27
Rep Melvin Watt: This, in a number of ways, is a very sad day from several
different perspectives I dont know why this bill has been introduced at this
time or why we are considering this bill. I suspect that it is a nice sound bite.
Rep Pat Schroder: Look, lets be honest as to what this is about. This is
about nothing but 30-second ads. And any Member of Congress who votes
against this bill, you are all ready to do the 30-second ads to try and
shock people.28
Nebraska State Senator, Ernest Chambers: I dont think it takes courage
to bring a bill such as this. This is the kind that is- and Im not referring,
please understand, to the gentlemen and ladies who bring this legislation;
I assume that, and presume, it was done in good faith, but Im looking at
the nature of the legislation. I think its cynical, political, and hypocritical.
In describing DOMA proponents reasons as a desire for a sound bite, get-

ting a 30-second ad, and political, speakers are framing the motives of
proposers as a self-interested, shallow way to appeal to voters. Left unspeci-
fied is the content that is so appealing. Nobody said youre appealing to
ordinary voters bigotry and prejudice. Legislators worked to avoid implying
that Americans who favored DOMA were immoral. Chambers comment is
especially interesting since it seeks to separate the legislation from the legisla-
tors. But as it is virtually impossible to make sense of good faith legislators
advancing a cynical, political, and hypocritical piece of legislation, negative
character attributions are set in motion. Either the legislators advocating for
this legislation are dupes or stupid, or they as people possess these negative
qualities. In this later case, Chambers protestation becomes hearable as a small
politeness move to soften the attack.
In addition to the morality claims, the other main argument offered in
support of the 1996 bill was the need to defend states rights and make sure
the federal government did not impose one states policy decision on all the
other states. Opponents of DOMA argued that this would not happen, as states
already had the power to not adhere to the Full Faith and Credit Clause of the
US Constitution when it involved a public policy issue. In essence then, rather
than arguing against states rights, opponents of DOMA argued it was not a
relevant issue to the discussion.
In the 2011 Senate hearing, however, the proponents of the Respect for
Marriage Actthose favoring DOMAs overturnbecame the proponents of
states rights. States which had extended marriage rights to same-sex couples,
bill proponents argued, should not have the federal government seeking to
impose restrictions on what those marriages rights were to be. Besides flipping
who was claiming the mantle of guardian of states rights, the central argu-
ment against DOMA changed. Where ensuring civil rights for gay and lesbian
citizens had only occasionally been mentioned in 1996, this issue assumed cen-
ter stage in the Senate hearing. That the civil rights of gays and lesbians were
the main issue was accomplished through two moves. First, speakers testifying
against DOMA and particularly judicial committee members argued explicitly
that civil rights and equality were the main issues.
Excerpt8.6
Chairman Patrick Leahy (opening remarks): As Chairman of this
Committee, I have made civil rights a focal point of our agenda. But out-
side of the hearing room, I have often spoken with those who think the
issue of civil rights is merely one for the history books. This is not so. There
is still work to be done. The march toward equality must continue until
all individuals and all families are both protected and respected equally
under our laws .I am concerned that DOMA has served to create a tier
of second-class families.29
Representative John Lewis: Human rights, civil rights, these are issues of
dignity. Every human being walking this Earth, man or woman, gay or
straight, is entitled to the same rights .That is why Congress must not
only repeal the Defense of Marriage Act, but work to ensure full marriage
equality for all citizens, together with the privileges and benefits marriage
provides.30
Judicial Committee Member, Christopher Coons:Isupport marriage equal-
ity. Ibelieve one of the defining qualities of America has always been our
inexorable drive to equality.31
Second, testifiers made real the inequalities DOMA caused through the
telling of personal stories that showed how speakers themselves, as well as oth-
ers they knew, had been harmed when they were unable to claim the rights
that heterosexual couples received. These stories were similar to the ones ana-
lyzed in Chapter7. They portrayed gay couples as living ordinary lives, ones
filled with concerns about children, involvement in churches and communities,
and commitment to professions. The stories also narrated instances of illness,
inability to help a loved one, and losses of homes related to a speakers mar-
riage being to a same-sex partner.
The argument that proponents of DOMA were against civil rights func-
tioned as an implicit claim that DOMAs advocates were bigoted and intolerant.
Akey way defenders of DOMA sought to address this argument was by listing
the many people with liberal credentials who had initially voted in favor of
DOMA. Whelen, the testifier with the Ethics and Public Policy Center, men-
tioned eight senators or representatives who had voted for DOMA in 1996,
including Chairman Leahy, Vice President Biden, and Senator Mikulski. He
thensaid:
Excerpt8.7
Now, Iam not claiming that Senators cannot change their mind, but this
list of supporters of DOMA suffices to refute the empty revisionist claim
that DOMA somehow embodies an irrational bigotry against same-sex
couples.32
Those favoring the retention of DOMA in the 2011 hearing also sought
to rebut that moral disapproval was the only or the main reason for passing
DOMA. For instance, in his opening comment after a first panel of witnesses,
Senator Grassley, the lead judicial committee member arguing for the retention
of DOMA,said:
Excerpt8.8
One of the witnesses before us today says that DOMA was passed for only
one reason: to express disapproval of gay and lesbian people. I know
this to be false. Senators at the time, such as Biden, Harkin, Kohl, or even
you, Mr. Chairman, and Representatives at the time like Representatives
Schumer and Durbin, as they were members of the House at that time, did
not support DOMA to express disapproval of gay and lesbian people, and
neither didI.33
Proponents of overturning DOMA in the 2011 hearing also used mul-

tiple language strategies to heighten the reasonableness of their argument.
Similar to the 1996 hearing, bill proponents named the act proposed in a way
that implied the goodness of passing it. Respecting and defending marriage
are values few would oppose, but what is concealed by each name is that the
defending and respecting attached to different marriages. Defending mar-
riage was to be applied to heterosexual marriage whereas respecting mar-
riage applied to marriage between same-sex couples. Related to the positive
name for the 2011 bill was the informal naming of the disputed issue. In the
Senate hearing, the debate about DOMA was regularly referred to as the issue
of marriage equality, a name never used in the 1996 hearing.34 In the Senate
hearing, the more positive person reference forms (gay and lesbian) were used
by debaters on both sides of the aisle. Only once was the term homosexual
used and this was to refer to conduct by a speaker opposing the repeal of
DOMA.35 In contrast, the House hearing had used the terms homosexual-
ity and homosexual repeatedly.36 Similar to the later state hearings, testifiers
speaking in favor of retaining DOMA did significant conversational work to

rebut that they were intolerant.
Once an issue is understood as a matter of civil rights, to be against extend-
ing such rights will be taken as a sign of prejudice. Narrating the story of a
father who had questioned the teaching of explicit same-sex issues to their
young son and been arrested for hate speech, Focus on the Family spokes-
person Minnery commented how this Christian dad was merely following his
faith. He then quoted the manswife:
Excerpt8.9
We are not intolerant, said his wife. We love all people. That is part
of our faith. But, see, the judge who ruled on their case has this to
say:The sooner children are exposed to those topics of same-sex relation-
ships, the better it is. It is difficult to change attitudes and stereotypes after
they have developed. Excuse me? Attitudes and stereotypes? These are the
sincerely held religious views of their parents, and the judge takes it upon
himself to believe that these views, sincerely held, should be erased from
the minds of the children.37
If we pose the question, What was the sea change that occurred in these
15years? Iwould posit the following. No longer was it legitimate in public talk
in the United States to invoke the discourse of sexual orientation as a matter
of conduct; the discourse of personhood had become the taken-for-granted
frame. By 2011, to frame sexual orientation as other than a legitimate category
of persons had become unacceptable in American public discourse. With this
change in the dominant discourse, opponents of DOMA showed themselves to
be persons committed to fairness and equality and DOMA proponents had to
counter an identity challenge that they were bigots.
2011 vs. 2013:DOMA inthe Senate vs. intheCourt
In the hearings, a good amount of the talk that occurred was pre-written
and read aloud; this was not the case during oral argument. Oral argument
involves lively question-and-answer exchanges between judges and the speak-
ing attorney, with only small stretches where an attorney followed a prepared
speaking agenda. As in the state supreme courts, turns changed rapidly and
judge-initiated interruptions were frequent. The first half of oral argument in
the DOMA case was focused on jurisdictional questions; the second half, on
the constitutionality of DOMA. One issue explored during the constitution-
ality questioning phase was whether DOMAs purpose was to express moral
disapproval of gays and lesbians. Consider a short exchange between Clement,
the BLAG attorney defending DOMA, and two of the justices.
Excerpt 8.10 (PC = Paul Clement, J-K=Justice Kagan;

J-KE = Justice Kennedy)
1-PC:[244 words] in a sense, you have to understand that, in 1996,
somethings happening that is, in a sense, forcing Congress to
choose between its historic practice of deferring to the States
and its historic practice of preferring uniformity. Up until 1996 it
essentially has it both ways:Every State has the traditional defi-
nition. Congress knows thats the definition thats embedded in
every Federal law. So thats fine. We can defer. Okay.1996-
2-J-K:Well, is what happened in 1996-and Im going to quote from the
House Report here-is that Congress decided to reflect and honor
a collective moral judgment and to express moral disapproval of
homosexuality. Is that what happened in1996?
3-PC:Does the House Report say that? Of course, the House Report says
that. And if thats enough to invalidate the statute then you should
invalidate the statute. But that has never been your approach,
especially under rational basis or even rational basis-plus, if thats
what you are suggesting. This Court, even when its to find more
heightened scrutiny, the OBrien case we cite, it suggests, Look,
we are not going to strike down a statute just because a couple of
legislators may have had an improper motive. Were going to look
and under rational basis we look-Is there any rational basis for
the statute? And so, sure, the House Report says some things that
we are not-weve never invoked in trying to defend the statute.
But the House Report says other things, like Congress was trying
to promote democratic self-governance. And in a situation where
an unelected State judiciary in Hawaii is on the verge of deciding
this highly contentious, highly divisive issue for everybody, for the
States-for the other States and for the Federal Government by
borrowing principles, it makes sense for Congress-
4-J-KE:Well, but your statute applies also to States where the voters have
decidedit.
In her question in turn 2, we see Justice Kagan employing a strategy used fre-
quently in parliamentary debaterecruiting a persons words to use against
them (Antaki and Leudar 2001). She recruits the words of the House Report
to challenge the House-sponsored attorney regarding his clients reasons for
supportingDOMA.
Kagans question is a difficult one for Clement to answer, because after the
Lawrence v. Texas case overturning the remaining sodomy laws in the United
States, it was no longer acceptable for laws to be based primarily on moral
disapproval of gays. In responding, Clement downplays moral disapproval as a
key reason for approving DOMA: Yes, congressional members did disapprove,
but that was not their main reason. In beginning with Of course the House
Report says that, Clement conveys the obviousness and naturalness of some
expression of disapproval of homosexuality in 1996,38 while casting that sen-
timent as but a small part of the motive for passing the law. In agreeing that
the court should invalidate the law if they judge moral disapproval to be the
main motive, Clement can been seen as seeking to defang the House Reports
explicit words. He frames the degree of disapproval as no more than a couple
of legislators [who] may have had an improper motive and argues that the
more important reason was a commitment to democratic self-governance.
Espousing democracy and respecting the will of the people, as we saw in the
state judicial committee hearings, was a way to clothe negative sentiments
toward gays and lesbians in positive values. In addition, Clement ignores the
other commitment of democracyto respect the rights of disenfranchised
minoritiesand frames the positive impulse for the bill as not allowing an
unelected judiciary in one state to dictate to everyone else.
One might assume that conceiving of moral disapproval as the central
reason for passing of DOMA would be a difficult issue only for the attorney
defending DOMA, but this was not the case. Kaplan, the attorney represent-
ing Windsor and seeking to overturn DOMA, did considerable conversational
work to deny that moral disapproval was the motivating reason for DOMAs
passage while nonetheless pressing for seeing DOMA as discriminatory and
unconstitutional. Consider an exchange she had with two Justices.
Excerpt 8.11 (RAK = Kaplan; CJ-R=Chief Justice Roberts,
J-Sc=Justice Scalia)
1-RAK:[70 words] There is uh little doubt that the answer to the
question of why Congress singled out gay peoples marriages
for disrespect through DOMA. The answer cant be uniformity
as weve discussed. It cant be cost savings, because you still
have to explain then why the cost savings is being wrought at
the expense of married couples who are gay. And it cant be
any of the State interests that werent discussed, but questions
of family law in parenting and marriage are done by the States,
not by the Federal Government. The onlythe only conclusion
that can be drawn is what was in the House Report, which is uh
moral disapproval of gay people, which the Congress thought
was permissible in 1996 because it relied on the Courts Bowers
decision, which this Court has said was wrong, not only at the
time it was dis-overruled in Lawrence, but was wrong when it
was decided.
2-CJ-R:So 84 Senators -its the same question Iasked before; 84 Senators

based their vote on moral disapproval of gay people?

3-RAK:No, Ithink-Ithink what is true Mr. Chief Justice is that times

can blind, and that back in 1996 people did not have the under-
standing that they have today. That there is no distinction, there
is no constitutionally permissible distinction
4-CJ-R:Well, does that mean-times can blind. Does that mean they did
not base their votes on moral disapproval?
5- RAK:No; some clearly did. I think it was based on an understanding
that gay-uh an incorrect understanding that gay couples were fun-
damentally different than straight couples, an understanding that
Idont think exists today and thats the sense Im using that times
can blind. Ithink there was uh we all can understand that people
have moved on this and now understand that there is no such dis-
tinction. So Im not saying it was animus or bigotry. Ithink it was
based on a misunderstanding of gay people andtheir-
6-J-SC:Why-why are you so confident in that-in that judgment? How
many-how many States permit gay-gay couples tomarry?
In turn 1, Attorney Kaplan straightforwardly asserts that moral disapproval

was the central reason DOMA had been passed. To her assertion, Chief Justice
Roberts asks how moral disapproval can be understood as the main reason
given the large number of senators who had voted DOMAs approval. Of
note, Roberts question is similar to several that were posed to sponsors of the
Respect for Marriage bill in the Senate hearing.
Why is Kaplan having such a difficult time responding to Roberts given she
had just stated that moral disapproval was the main reason? Iwould suggest
she is seeking to navigate a narrow identity channel without crashing into the
sides. Kaplan wants to establish that DOMA was passed because of moral dis-
approval of gay people. At the same time she wants to disavow that the major-
ity of people who voted to approve DOMA were morally disapproving of gays,
or to state it more colloquially, bigoted people. In Excerpt 5 Kaplan denies
that most approving voters were bigoted or had animus toward gays; it was
rather, she argues, a misunderstanding. Misunderstanding is a non-blaming
way to describe a problematic action. To label a decision a misunderstanding
functions to deny bad motives (i.e., a desire to hurt), even as it seeks to retain
the judgment that the decision was wrong. Her distinction that an action was
morally wrong yet the people who performed it were not immoral is a distinc-
tion that many people would find questionable; in the final turn, in fact, we see
Justice Scalia probing her distinction.
Kaplans difficulty can be understood as a result of the multiple audiences
she needs to address as she speaks. As an attorney with a public presence, we
know that she is committed to extending gay rights on multiple fronts.39 To
use a military metaphor, she does not want to win a battle at the cost of losing
the war. To imply that the many people (lots of ordinary Americans, past and
present legislators, multiple US presidents, and several Supreme Court Justices)

who favored DOMA were immoral bigots is not a good way to build support
for gay rights. At the same time, in this appellate court setting, it is laws based
on moral disapproval that warrant being overturned.
In the Supreme Court and the Senate hearing, debate about whether DOMA
was motivated by moral disapproval was central. What distinguished the court
from the hearing was that the hearing used the ordinary evaluative terms big-
otry, prejudice, and moral disapproval, whereas the court used these emo-
tionally evocative terms less often and used the less emotion-generating legal term
animus more often.40 In addition, in oral argument, there was explicit discussion
about which criterion should guide judges in their decision making and a sense
that this decision could affect their final decision regarding the constitutional-
ity of DOMA. In the Senate hearing, in contrast, there was no sense that any
committee members mind would be changed by what was said in the hearing.
Senators questioning adhered to the practices displayed in parliamentary ques-
tioning where questions attacked testifiers opposing the question-askers position
and posed praise-implicative ones to those sharing their position (Ilie2015).
The oral argument in 2013 and the judicial committee hearing in 2011
about marriage equality revealed striking similarities, as well as marked differ-
ences. In both bodies, judgments about morality and legality were intertwined,
and a key activity of question-posers was to explore how they were or should be
intertwined. In both sites, communicators also evidenced through their talk that
they were attending to the identity implications for self, the spoken-to parties,
the spoken-about gay parties, and other non-present but important overhearing
audiences. At the same time, the genres shaped talk into distinctively different
activities. In the hearing, disagreement was visible through juxtaposed, relatively
passionate position-taking, but it was only gently explored in the questioning.
In the court, questioning brought the disagreements to life and questioning was
used to scrutinize and pursue complexities of the disagreement. In addition,
each site included activities that the other did not. Story-telling was present in
the hearing, whereas strict scrutiny, rational basis, and references to prior
cases pervaded the court discussion. In essence, the communication style dif-
ferences created and reflected each institutions understood focal purpose. For
the legislative hearing, the communication constructed the hearing as a place
for overt persuasion as elected officials made a decision responding to their
constituents. In the court, the communication constructed oral argument as an
objective, legally based analysis and the judges as people with those qualities.
As Ihave argued in earlier chapters, it is not plausible to see the court and its
justices as objective, nonpolitical parties, but it is important to recognize the
multiple ways the genre is designed to display its commitment to these values.
9
Discourse, Law, and SocialChange
Between 2003 and 2013 American society changed. In courts and legislative
hearings, as well as in the larger society, the identities in public discourse that
could be claimed or attributed to gays and lesbians altered fundamentally. If
we conceptualize change as a matter of changing hearts and minds, then the
social change would be framed as reflected in the talk. If we think of change as
altering taken-for-granted ways of speaking (and writing), this analysis has been
about a social change itself. Regardless of whether talk is construed as reflect-
ing or enacting change, gay identities in the United States were transformed in
this decade.
In the early years of this 10-year period, and certainly in years before, it was
reasonable in courts, legislative hearings, and the larger society to treat homo-
sexuality as a matter of conduct, a lifestyle choice that could be criticized
for its immorality. Conceiving and talking about sexual orientation as a matter
of conduct was not absent in law-making and law-interpreting discourse as of
2013, but this discourse had lost significant ground. By 2013 treating sexual
orientation as a matter of conduct had become morally problematic. Speakers
drawing on this discourse in legislative hearings and courts had to do discursive
work to counter perceptions that they were bigoted. In this decade, a Discourse
of personhood replaced the sexual orientation as conduct Discourse.1 Public
talk about gay marriage increasingly became talk about a category of person, a
type of American citizen entitled to rights granted other citizens.
I begin this final chapter by summarizing what we have learned about
identity-work in law-making and -interpreting in the marriage equality debates.
As Ihave noted, identities at stake in these exchanges did not concern just gay
parties. Equally important were identities of the speaking judges, attorneys, cit-
izens, and legislators. In reviewing the projects findings, Itake claims Idevel-
oped in earlier chapters and show how they fit together to support a major
argument about how (and why) court and legislative talk contributed to the
transformation of gay identities. Then Istep back from the case to make seven
substantive and methodological proposals for future discourse and language 157
studies. Finally I provide a reflective epilogue narrating what happened in

American society between the end of data collection (June 2013) and when
Ifinished writing this book (July2015).
Identity-Work inSupreme Courts and Legislative Hearings
In oral argument in state supreme courts, judges and attorneys representing

the disputing parties come together for a short amount of time to explore a set
of issues which are specified prior to the exchange. Oral arguments purpose
is to enable judges to arrive at legally sound, just decisions, ones that interpret
the law while considering its social consequences. This goal is made possible
through the process of rigorously questioning attorneys for each side. But, as
with any complex institutional practice, the purposes served by oral argument
are multiple and layered, and some purposes are at odds with each. The dis-
course that instantiates this genre reflects this complexity.
On the one hand, judges were finding the law, i.e., applying precedent
and constitutional principles to the dispute at hand. To accomplish this goal,
judges regularly cited cases and constitutional principles, framed differences of
opinion as originating with the other side, and spoke in ways that created a
formal, impersonal setting that attorneys reciprocated. Titles and last names
were regularly used, disagreements were carried out without mitigation, and
interruptions of attorneys by judges went unmarked. On the other hand, oral
argument is also an arena in which judges are jockeying to advance their own
political beliefs. By engaging in tougher questioning of the side with which they
disagreedby asking more questions and more complicated ones, by starting
questions more frequently with disagreement tokens or interruptions, and by
pursuing an attorney across a greater number of turnsjudges enacted a pro
or con stance toward marriage equality. Judges also revealed, albeit rarely, their
political stance through vivid, partisan-implicative moves:they used extreme
case formulations, told morally marked stories, or made fun of one partys
remarks.
In terms of how judges conceived of what they do communicatively dur-
ing oral argument, judges embraced a contradictory logic. From the interviews
we know that all judges regarded themselves as a-cultural beings, outside of
and unaffected by interests related to their gender, race, and sexual orienta-
tion. They saw their central job as applying the law equally and fairly to all
people, regardless of their own or a litigants particular identity categories. At
the same time judges, at least those who were blacks, Latinos, women, and pre-
sumably also gay or lesbian, knew they had different life experiences from their
white male straight counterparts. Their different life experiences, these judges
argued, enabled the law as an institution to operate more fairly. The contradic-
tion, then, is that if a judges cultural background makes no difference in how
Discourse, Law, and SocialChange 159
he or she judges then there is to need to pursue a demographically representa-

tive judiciary. But if judicial views, at least for certain kinds of cases, differ in
systematic ways related to judges demographic categories, leading judges to
question differently, and in the end decide differently, then the law is not a-
cultural. This contrary set of beliefs that judges hold about themselves and the
law, Iwill argue later, is essential to preserve.
Some identity-cuing practices exist only at a particular moment in time.
In the three earliest court cases, person-referencing practices were revealing.
Plaintiff and state attorneys, and the courts as a whole, revealed their stance
toward the rights of gay parties through the ways they referred to these parties.
By using person terms more frequently as well as fewer references to precedent
and principles, plaintiff attorneys and the court that favored extending mar-
riage rights enacted positive stances toward same-sex marriage. In addition,
attorneys and courts that used gay and lesbian more frequentlythe terms
preferred by gays themselvesrather than homosexual enacted a prosame-
sex marriage stance. By the second decade of the 21st century, the power in
these legal contexts of particular choices of person-reference terms (gay/les-
bian vs. homosexual) to cue stances had diminished. When the US Senate con-
ducted its hearing about DOMA and the US Supreme Court its oral argument,
gay and lesbian had become common labeling practice among speakers on
both sides. Using gay or lesbian in the court and the legislative hearings
no longer reliably marked that a speaker was likely to be positive about mar-
riage rights. In fact, the use of gay and lesbian, at least some of the time by
speakers against marriage rights, seemed needed to show that those opposing
same-sex marriage had reasons other than prejudice.
In contrast to the conversational work judges did during oral argument
to enact themselves as impartial, the identities judges pursued in judicial opin-
ions were straightforwardly opinionated. In a case with a deeply divided vote,
such as occurred in Washington States Supreme Court, judicial opinion-writ-
ers prose showed the writers and agreeing others as right and opposing oth-
ers as wrong. Skepticism markers including scare quotes, opinions peppered
with reported speech conveying disdain, and frequent use of extreme case for-
mulations made judicial opinion-writers stances clear. Judges on both sides
also defined the key term of this disputemarriagein a way that advan-
taged the argument they were making, claimed that the position they favored
was demanded by the law, and framed opposing others positions as shaped
by improper motives. Judges engaged in these actions as they simultaneously
jockeyed to assign the burden of proof to the judges with whom they were
disagreeing.
In these marriage equality debates, the judicial committee hearings dif-
fered from each other more than did the genre of courtroom oral argument.
The judicial committee hearings in the state legislatures looked and sounded
different than their federal brethren, and state hearings differed considerably
from each other. Unlike the courts in which oral argument had a fixed design,
a chair of a judicial committee has a large set of choices to make in setting
up a hearing.2 Judicial committee chairs need to decide how to formulate the
issue on which testimony was to be taken and how to structure participation
in the hearing. Much more than the courts, the issue for which testimony is to
be taken advantages one of the parties in the dispute. This favoring of one side
in the marriage law debates was accomplished by formulating the proposed
bill such that the burden of proof was given to the side that the bill proposer
opposed or, less commonly, framing the hearing as an information-gathering
event designed to address a problem.
As Iargued in chapter5, judicial committee hearings that concern constitu-
tional, person-rights issues have different demands than hearing about business
or scientific policy matters. Most importantly for person-rights issues, gather-
ing technical information is often a minor need.3 The heart of a person-rights
issue concerns matters about which ordinary people know what they think and
feel entitled to express their views. When legislators questioned testifiers, they
came across as political, and in the state hearings, questioning of citizens by
legislators was an infrequent activity. Whether legislators enacted themselves as
politically committed partisans was particularly striking when the state hear-
ings are compared to the federal ones. In the US House and Senate judicial
committees, legislators did significant work through their initial commenting
and then questioning of testifiers to show which side of the issue they favored.
At the federal level, legislators clearly favored displaying themselves as politi-
cal whereas this identity was usually avoided at the statelevel.
How participation was structured determined how legislators prioritized
two salient but contradictory values expected to shape their conduct in these
judicial committee hearings. Were legislators committed to making visible their
political stripes and their commitment to one side of the same-sex marriage
debate, or were they committed to being fair government officials who gave
testifiers holding different views equal voice and equal respect? How legisla-
tors prioritized these values was made visible through the design of the hear-
ings participation. Through the ordering of speakers by their position toward
same-sex marriage, by the amount of speaking time given to a person, through
designation of some people and not others as experts, and by a chairs routine
discourse moves to acknowledge speakers on each side, the hearings came to
life as places of equality for all citizens or as occasions in which some speakers
were treated better. The hearing also came to life as a setting in which it was
immediately clear what a legislators commitments were or as talk occasions
in which listeners had little or no sense of what position a committee member
favored.
When we looked at the identity-work of citizen testifiers, three sets of dis-
course practices were especially prominent in these hearings. First, in contrast
to the courts where religion was largely absent, it was a central theme in citizen
talk. References to God, the Bible, church, and religion were recur-
ring features in the testimony. Citizens introduced themselves using religious
group labels, quoted scripture, prayed to God, and asserted their belief in one
of the two Religion Clauses of the First Amendment. Testifiers also did work
to claim (or disavow) identities that might be seen as an (un)likely partner with
other identities that their talk could be interpreted as implying they possessed.
Gay and lesbian speakers announced their patriotism and love of God whereas
speakers arguing against same-sex marriage proclaimed their love of gays and
disclaimed that they were intolerant. Finally all citizens, but especially the pro
marriage-equality speakers, told stories. Gay speakers told stories that showed
how similar they were in desires and life activities to non-gay others. To drive
home why marriage laws needed to be changed, prosame-sex-marriage speak-
ers told moving stories about children and described hard-to-imagine hurts
that had been inflicted on gay parties.
In the legislative debates about marriage, the issue of whether the speaker,
the spoken-to, or the spoken-about parties were reasonable and moral was
never far from the conversations focus. In any encounter, we can expect people
to care deeply about how they as individuals as well as their categories are
regarded. In the hearings, citizens attended to what prior speakers talk implied
about their categories, often naming and drawing out unsavory implications of
what an earlier speaker had said. Testifiers and legislators regularly asserted
or implied that they possessed socially desirable characteristics such as being
patriotic, religious, unprejudiced, or committed to civil rights. They also explic-
itly accused others or, more often implicitly described the dispute about same-
sex marriage, in ways that portrayed others as ungodly or intolerant, as not
caring about equality or as possessing undesirable character traits.
During oral argument, disputes about the morality of parties were more
cloaked than in the hearings, but implications about what was moral lurked
just below the surface of the talk. In the early court cases, arguments that
states should have the right to base their laws on tradition served as cloaked
assertions about the reasonableness of having Christian values as the basis of
law. Arguments about tradition also implied that opposing parties were being
unreasonable. As we saw in the 2013 US Supreme Court discussion of ani-
mus, whether parties who had previously supported DOMA were bigoted
became a central focus of argument.
Identity Transformation throughCourt and Legislative Discourses
Beginning in 2003 in the United States the preferred societal discourse about
sexual orientation became unstable. Sexual orientation as a matter of conduct
and lifestyle increasingly came to be replaced by the discourse of sexual ori-
entation as a legitimate category of person. The two discourses about sexual
orientation have long circulated in American society. But with the Supreme
Courts overturning in 2003 of the last few sodomy laws, gays and lesbians
were finally able to unhitch the identity of gay from that of criminal. Based
on a corpus analysis of three debates in the British House of Lords regarding
the minimum age for consenting sex among gay males, Baker (2004, 96)shows
that the term homosexual was typically paired in the debates with the terms
acts and behavior. As he comments, Referencing homosexuality as an
act rather than an identity is essential for those who are anti-reform in that
it disassociates criminality for a particular identity group and instead focuses
it around behaviour. With the abolishment of sodomy laws brought about
through Lawrence v.Texas, what were acceptable ways in American society to
talk publicly about gay people began to change.
From polls conducted at different points in the 20032013 period, we know
that public opinion was changing. The majority of Americans went from see-
ing same-sex marriage as wrong to regarding it as reasonable.4 Answering the
why question about this social change, as Iargued in the opening, requires
considering multiple influences. The early decisions made by the state courts,
with the publicity the decisions received, got conversation started and helped
change peoples views. Yet it was also the case that ordinary citizen views were
changing as a result of increasingly frequent and favorable media representa-
tions of gay persons. Paralleling the positive media representations was the
growth in gays coming out of the closet, which, in turn, resulted in more and
more people knowing that they had a friend, acquaintance, coworker, or fam-
ily member who was gay.5 Legislative testimony further changed opinion as it
displayed not a strange category of other asserting a right but speakers that
ordinary Americans already knew or could imagine to be coworkers or friends.
The changing number of people who were open to same-sex marriage, in turn,
shaped what courts and judicial committees were willing to consider.
Law-making, law- interpreting, and larger public discourses are deeply
entangled, with influences running every possible way. In this marriage equal-
ity debate, there was clearly reciprocity of influences. The discourse in courts
and legislative hearings about marriage rights was contributing to and at the
same time reflecting the societal transformation in the meaning of beinggay.
Looked at chronologically, the exchanges in these supreme courts and in
judicial committee hearings inform us what socially changing attitudes look
like discursively. The courts and hearings that considered marriage law appeals
just a handful of years later than the first ones studied had speakers on both
sides expressing themselves differently than had occurred in the earlier occa-
sions. Negative opinions that were straightforwardly expressed in 1996 were
expressed more cautiously, with greater attention to wording in 20052006, and
with considerable hedges and disclaimers by 2011. Concretely, formulations
such as homosexual activities and gay lifestyle became far less common.
The use of these and similar phrases by the second decade of the 21st century
came to be taken as signs of bigotry. On the other side, speaking forcefully

and in detail about the importance of equal rights for alli.e., as if one were
addressing disagreeing othersbegan to soften. Speakers increasingly spoke as
if they assumed at least some listeners shared their belief. Where claims about
equality for gays needed to be strongly made in the late 1990s through the first
56years of the 21st century, such claims in later years could be formulated
more straightforwardly. By 2010, in fact, it had become reasonable for speakers
to pair an argument for same-sex marriage with an appeal to be on the right
side of history. The socially acceptable frame for public talk had changed.
Homosexuality had become a matter of identityincreasingly referred to as
gay or lesbiannot the name for a set of activities in which a person engaged.
Categories of persons and activities are deeply linked, and by using a name
for a category of person or by describing a set of activities, a speaker implicitly
calls up the non-uttered other piece. This relationship is the central insight of
Sackss idea of membership categorization. What is largely absent from mem-
bership categorization analysis (Housley and Fitzgerald 2015), which this study
makes visible, is the consequentiality for the speakers own identity of the choice
he or she makes. Institutional contexts and the historical moment shape the
interactional meaning of person-reference terms and descriptions, but which
side of the string one pulls matters. Social controversies invariably involve dis-
putes about how category names and descriptions ought to be linked, as well
as the lexical choices to instantiate either of them. What has not been fully rec-
ognized in membership categorization analysis is that the choice of the name
or of the description carries with it a meaning regarding the speakers identity.
At this historical moment, for instance, a speaker will be regarded as more
liberal and enlightened if she talks about a person with a disability rather
than a disabled person. On the other hand, among a subset of the disability
community, person with autism has become increasingly prevalent as less
preferred than the label autistic. Autistic is a legitimate category of person,
one differing from neurotypical people but a category equally deserving of the
rights and respect extended to neurotypical folks. Autism in contrast calls
up disease and deficiencies (Hughes 2015). In addition, formulations such as
a person with X or a person who did X which may have initially been used
to highlight that a person is always more than some negative state (a person
with a disability vs. a disabled person) or some disvalued behavior (a person
who did a criminal act vs. a criminal) over time can come to mark that a speaker
is referring to something sensitive and negatively assessed. Thus, not only do
person-referencing terms call up descriptions and vice versa, but the formula-
tion a speaker uses at a particular historical moment will cue what stance that
speaker has toward the controversy and his or her political identity as conserva-
tive or liberal.6
Another person-rights example, which may shed light on the marriage
equality/gay identity debates, is visible in discussions about immigrants and
their deserved rights. Such debates have been lively in the last few decades in
many Western societies. The language of these debates has been a particular
focus of analysis in the United Kingdom. Similar to the marriage debate in
which person-referencing terms for gays and lesbians (homosexuals, same-sex
couples) initially cued attitudinal stance, terms to reference immigrants like-
wise cue a communicators likely positivity or negativity. In a study of 10years
of the British press starting in 1996, KhosraviNik (2005) found that the term
immigrant co- occurred most often with descriptions of social problem
whereas emigrant tended to be used in positive contexts such as obituaries
and migrant inhabited an intermediate, somewhat neutralspace.
Since the 1990s in Ireland almost all references to immigrants in media
discourse have become paired with the adjective illegal. As Burroughs (2015)
shows, this formulation is particularly interesting because the vast majority of
immigrants enter the country legally. These immigrants to Ireland become ille-
gal because they overstay student and work visas, not because they entered
illegally. The phrase illegal immigrant, however implicitly justifies negative
treatment of the category of person. In this case the category, immigrant is
so regularly paired with this adjective that it becomes difficult to hear the word
without the negative loading. The contextually bound character of the negative
association, though, is demonstrated when one looks at the Irish presss term to
refer to illegal Irish immigrants in the United States. As Burroughs shows, the
press is largely positive to the trials faced by not illegal but undocumented
Irish in the United States.
Another piece of the immigration debate can be seen in Britains discus-
sion about which immigrants should be permitted to become citizens. In an
interview with British citizenship officers, Andreouli and Dashtipour (2014)
found that these officers experienced a dilemma in making decisions about who
should be allowed to become citizens. On the one hand they regarded Britain
as a humanitarian and tolerant country; therefore, they as officers should be
open to admitting people requesting citizenship. On the other hand, officers
regard themselves as monitors of scarce government resources, which it was
their responsibility to ensure were not strained. In these interviews, officers
described immigrants motives in ways that easily sorted them into decision
categories. Persons in need were granted citizenship, but opportunists were
not. But it is hard to imagine that most applicants did not have legitimate needs
while also seeking better life opportunities. Using and treating the categories as
straightforward, though, helped keep the tension below the surface.
A final study about how immigrants are discursively positioned deserves
mention. Lamb (2014) considers how immigrant organizations in the United
Kingdom challenged the dominant negative discourse about immigrants.
Examining documents at several times from the 1960s until 2009, she identifies
story features that were used by immigrant advocacy organizations to resist
the marginalization of migrants. She shows that the ways migrants and their
needs were made more sympathetic were through (a)the thoughts and feelings
of individual migrants being articulated rather than ignored; (b)reporting the
voices of migrants themselves rather than an organizational spokesperson pro-
nouncing what the needs are; (d)stories portraying migrants as active rather
than acted upon; and (d) historically situating what is occurring rather than
discussing it as a decontextualized matter of a principle.
History has not yet taken a side with regard to migrant rights, but pre-
sumably it will at some future date. What connects the migrant debate to the
gay rights/marriage equality debate is the way linguistic formulations and
discourse-framing practices are being used to show one position as reasonable
and an opposing other one as not. Based on this books analysis of the mar-
riage equality debate, Iwould suggest that if immigrants are to gain additional
rights, the political discussion will need to be reframed and current person-
referencing terms must be rehabilitated.
Unlike marriage, which is predominately a matter of state law, immigration
is largely a matter for federal policy. Nonetheless, immigration-relevant state
legislation may be passed that eventually alters the conversation at the national
level. For instance, Colorado is considering allowing undocumented immi-
grants to be eligible for in-state college tuition and it already allows them to get
drivers licenses.7 Similar to the campaign for gay rights, rights for immigrants
may end up as constitutional questions in state supreme courts. With their
partial insulation from political passions and their commitment to principle-
sensitive argument, state courts could enable the start of a new debate about
rights, this time for immigrants.
Proposals Regarding Discourse Research
In reflecting about the identity-work accomplished through talk and text in

these legal genres, Ioffer seven proposals. The proposals highlight key insights
gleaned through analysis of the marriage equality debates and suggest direc-
tions for future study. The proposals begin with insights about studying identi-
ties in discourse, move to methodological issues, and conclude with reflections
about the working of hearings and courts.
1.HOW A PERSON TALKS ABOUT OTHERS IS ANIMPORTANT PART

OFTHAT PERSONS OWN IDENTITY.
The idea that how people talk about others says something about who they are
is not a new idea. What this study of the marriage equality debate in courts and
legislative judicial committee hearings makes apparent are three non-obvious
implications of the relationship. First, this assertion applies outside the realm
of ordinary conversational exchanges (e.g., Schiffrin 2006); it applies in public
settings where laws are being interpreted and made. In the hearings we heard
proand conmarriage-equality speakers explicitly labeling the character of
specific prior speakers based on how they had spoken about gays and lesbians
or religious speakers. In the courts the identity-work process was more hid-
den but nonetheless operating. Judges use of membership terms not only said
something about the talked-about gay parties but conveyed the judges likely
attitude toward marriage equality.
When stance indicators are analyzed, there has been a tendency to focus
on what evaluation or assessment of the viewed object-person-issue the indica-
tors are cuing. But stance indicators work in two directions. When a stance is
toward a category of person, its indicators loop back to implicate the character
of the speaker. What character inferences will be drawn about a speaker, rather
obviously, depend on an interpreters stance toward the issue. The grandmother
who bemoaned the world her granddaughters would face if gays were allowed
to marry is likely to be regarded by persons opposing same-sex marriage as a
solid citizen, an appropriately religious American who was willing to speak up
in an unfriendly forum. By those persons supporting same-sex marriage she is
likely to be seen as a bigoted religious conservative.
Finally, linguistic discourse scholars (e.g., De Fina, Schiffrin, and Bamberg
2006; DuBois 2007)have repeatedly noted how just about any feature of lan-
guage is capable of being a stance cue. In this analysis Ishowed how patterns of
language within a stretch of talk, not simply discrete tokens, could function as
stance cues. Judges in their questioning profiles and citizens in their choice of
religious terms conveyed something about their stance toward gays and as well
as cuing something about the kind of person theywere.
2.THE MORAL ASPECTS OFTHE IDENTITY-WORK PROCESS DESERVE

GREATER ATTENTION INDISCOURSE STUDIES.
The rightness or wrongness of persons and action is central in peoples talk

in their workplace, family, and public lives. It is what people care about. As
Robles (2015, 1032)puts it, From deflecting blame to arguing about politics,
much of social life revolves around whether human conduct and character is
right, good, and reasonable. In this book Ihave focused on a variety of devices
through which talk implicates moral facets of speakers, the spoken-to, and the
spoken-about parties.
The moral dimension has not been ignored in discourse studies, but it has
tended to be conceived of either as an abstract concern affecting conduct or as
a relatively technical discourse practice. In the discursive psychology work on
positioning (Harr and Slocum 2003), peoples desire to come across as moral
in the situations they inhabit is treated as an important force animating talk;
discourse specifics that accomplish this work, though, are relatively unelab-
orated. On the flip side is the work of conversation analysts about morality
and linguistic studies of stance. For instance, the work on proto-morality by

Bergmann (1998), micro-interactional moral calibrators (Stivers, Mondada,
and Steensig 2011), and evaluative stance (Englebretson 2007)provide compel-
ling descriptions of how features of talk accomplish normative, moral evalu-
ations, but the consequentiality of talks moral working gets backgrounded in
the linguistic and interactional detail.
Taking the moral aspects of identity-work seriously requires a just-right
approach. Too little discourse specificity makes an analysis ungrounded in
interactional life, unrecognizable as a discourse study. Yet a highly technical,
discourse-specific analysis can sideline the social, moral concerns that make
study of interaction so compelling. Locating ones analysis in this just-right
spot between technical specifics and theoretical pronouncements is not easy,
but doing so is crucial if we are to understand moral inference-making and
implication-drawing in action. How well a particular study succeeds will be
contestable, but an analysts struggle to find the ideal trade-off is likely to yield
richer, more insightful studies.
3.GENRE ANALYSIS NEEDS TODEVELOP A DESIGN STANCE THAT

RECOGNIZES HOW PEOPLES CHOICE-MAKING ABOUT VALUE
PREFERENCES SHAPES WHAT A GENRE COMESTOBE.
In an analysis of written legislation in common law and civil law countries,

Bhatia (1993) found that each legal tradition evidences a concern for making
understandable the content of a laws particular provisions. Each legal tradi-
tion, however, privileges different parties (i.e., ordinary citizens or attorneys)
understandings of the law. The European civil law tradition primarily attends
to legislation being inclusive of all relevant situations and understandable to
ordinary lay readers. As a result, legislation is likely to state provisions gen-
erally, leaving the specifics of application imprecise. In contrast, in common
law countries the legislative texts are written so that the main interpreters, i.e.,
attorneys, have a clear sense of what is entailed or prohibited by a piece of
legislation. This concern to avoid misunderstanding often leads to spelling out
of qualifications that end up narrowing the law considerably, as well as making
the legislative text impenetrable to lay parties. In essence, then, the genre of
written legislation includes a fair amount of variation in its form. This varia-
tion can be understood as a communitys privileging one purpose of a genre
over other espoused purposes.
Genre theorizing (e.g., Askehave and Swales 2001)has ably displayed the
complexity and importance of the notion of communicative purpose in
describing genres, subgenres, and hybrid genres. What a design stance can add
to this research tradition is to foreground a connected issue:Some particular
individual, or a group, or an institution has the task of designing communica-
tive scenes. It is the designers prioritization of purposes and values that will
determine the main features and style of a genres discourse. Whether recog-
nized or not by the judicial committee chairs, the hearings they ran reflected
different definitions of the situation and prioritization of values. Highlighting
design as part of genre analysis reminds analysts that a genres purposes are
constructed, even if the purposes are experienced by participants as nonne-
gotiable. Keeping in mind the potential for genres to be reconfigured seems as
important as recognizing the power of genres to constrain action.
To complicate things further, the espoused purposes of a genre may dif-
fer from the purposes the genre actually serves. In the early stage of creating a
discourse genre, organizers may build in features that inadvertently undermine
what they espouse the genre to be about.8 Inferring purposes from the discourse
can make this apparent.
Too often scholarly and popular critiques about genres of discoursejury
instructions, legislative proposals, public hearingscriticize a genre through
the lens of a single desirable purpose. Rarely, though, do socially important
genres possess only a single purpose. In the judicial committee hearings Iinter-
preted the variation seen in the discourse as tied to prioritizing of competing
legitimate purposes. To be sure, discourse genres may attend to illegitimate pur-
poses, or a genre may give a legitimate purpose too little or too much weight.
But taking account of the multiple, often competing purposes that socially val-
ued institutional genres possess will make genre research more interesting and
more useful.
4.STUDIES OFINSTITUTIONAL DISCOURSE COULD ARRIVE

ATVALUABLE INSIGHTS IFTHEY MORE FREQUENTLY LOOKED
ATCONTESTED ISSUES ACROSSTIME.
In this study of the marriage equality debate I analyzed supreme court oral
arguments and legislative hearings across 10years. An understanding of social
change, to state the obvious, requires an analyst to look across time. Corpus
studies of newspapers and other kinds of documents quite often do this, but
analyses of talk, which require taping and transcribing, more often focus on
relatively small amounts of data taken from one occasion. It is not that a small
amount of discourse from one moment in time cannot yield interesting, per-
suasive claimsto the contrary, discourse studies regularly generate valuable
news under these conditions. But attention to multiple instances across time,
particularly when focusing on a social controversy, can generate novel insights
and can minimize the drawing of incorrect conclusions.
Consider for instance the conclusions that Schiappi (2012) draws when he
compares the arguments about same-sex marriage in Californias Prop 8 debate
taken from public texts, such as ads and letters to the editor, to the California
Supreme Court arguments. Drawing on Goodnights (1999) influential distinc-
tion about spheres of argumenti.e., personal, technical, and publicSchiappi
argues that his analysis of public and technical sphere discourse shows that
Goodnights conclusion that public discourse is harmed by the invasion of the
technical is incorrect. Rather, Schiappi claims, the technical (i.e., the legal) dis-
course site made religious arguments not possible, which for this issue of same-
sex marriage generated better deliberation than was occurring in the public
discourse. The problem with Schiappis conclusion, as Delgadillo (2015) shows
by analyzing amicus briefs in the marriage law debates across several decades, is
that what was argued in the California court was not at all typical of what was
argued in earlier amicus briefs. When one drops back in time just a handful of
years, it becomes apparent that religion is not necessarily absent from the tech-
nical sphere. Simply put, Schiappis conclusions about the technical and public
spheres were faulty because he focused on a single place andtime.
In addition, examining the discourse of a controversy across time may
enable an analyst to spot how the structure of communication scenes is weigh-
ing in one side or the other of a controversy. How the context of the judicial
committee hearings was weighing in on the debate about same-sex marriage
only became obvious as Ianalyzed the multiple cases in this rapidly evolving
controversy. When a single communication event is examined, it is difficult to
see features of the scene; they tend to become the invisible context within which
analysis takes place. Identifying interesting features of interaction is facilitated
by a discourse analyst having variation. Looking across time makes this more
likely. Furthermore, when the claim an analyst wants to develop involves the
problematic quality of discursive actions in controversies, then looking across
time seems a wise contextualizing move. Normative assessment of what is right
evolves over time; it is important to take account of times role in ushering in
change.
5.GPT OFFERS A FRAMEWORK THAT COULD BE USEFUL

TORESEARCHERS INTERESTED INISSUES OFLANGUAGE
AND LAW INA VARIETY OFSOCIAL SCIENCE FIELDS.
In this analysis of the communication practices of oral argument, written judi-

cial opinions, and legislative committee hearings, the research focus and tra-
jectory were informed by grounded practical theory (GPT) (Craig and Tracy
1995). Although Idid not refer to GPT as Ianalyzed, the findings about the
three practices, the reflections about person-rights disputes offer an extended
example of GPT research. That is, the books focus has been on the problems
and dilemmas that different participants faced in these practices, as well as
the discourse moves that revealed the problems and the interactional strate-
gies used to manage them. Moreover, not only were each practices problems
and discourse strategies described, but Iweighed in with ideas about how par-
ticipants ought to reflect about each practices problems and choose how to
act. These conduct suggestions were developed based on study of the practices
discourse alongside of an array of relevant other materials (interviews, institu-

tional documents, public texts). These are the key moves of grounded practical
theorizing.
Grounded practical theorizing makes use of concepts from many theo-
retical homes in its quest to understand the challenges of talk-focused social
practices. But it is the practice in its messy unfolding that is the start point
for description, reflection, and selection of theoretical concepts. Because GPT
starts with close study of particular communicative practices, it often critiques
the theoretical concepts it has used to understand the practice, offering ideas
about how a concept could be refashioned to become a more useful theoretical
tool. Examples of this were seen in, for instance, the claim that stance indica-
tors work in two directions, cuing a speakers stance as well as looping back to
cue features of the speakers identity and in the argument that genre needs to
take more seriously the issue of design.
GPT is a soft normative theory. It does not tell people what to do (or
avoid), but rather argues which goals and aspects of the situation participants
ought to give attention, and when and why weights should be given to one
feature/purpose rather than another. GPT, as Craig comments (2006, 43) is a
way of understanding a practice that provides a particular way of interpret-
ing practical knowledge, a way of focusing attention on important details of a
situation and weaving them into a web of concepts that can give the experience
a new layer of meaning, reveal previously unnoticed connections and suggest
new lines of action.
Because the law is so much a matter of discourse, a constellation of talking
and writing activities, and because its business is to make judgments about what
is or was reasonable, grounded practical theorizing offers a research approach
that could be useful in studying other issues of law and society.
6.LEGISLATURES AND SUPREME COURTS EXIST INEACH OTHERS

SHADOW AND SHAPE WHAT HAPPENS INTHE OTHER BRANCH.
One common story about the law in the United States sees courts and legis-
latures as separate, ignoring the way they work together and influence each
other. This study demonstrates the problem with that common story.9 Courts
and legislatures are interactive rather than exclusive, notes Guttman (2006,
ix). Each branch shapes the talk and actions of the other. Much of the debate
in the state supreme courts concerned whether the court or the state legisla-
ture should be deciding what the states policy about marriage was to be. As
we saw in Washington State, its supreme court ruled that the decision about
same-sex marriage was an issue of policy that the legislature should be decid-
ing. But in the DOMA debate in the US Senate, leaders favoring the repeal
of DOMA chose to stop talking and, one might say, happily left it to the US
Supreme Court to make the decision. In Iowa, their supreme courts positive
decision supporting marriage rights for gay Iowans led to a legislative hearing
that began the process of seeking to overturn the court ruling.
Typically the legislature is assumed to be the arena for law-making, a
forum for policy where passion and self-interest are expected. In contrast,
courts are expected to be arenas for law interpreting. But, as Ihope Ihave
shown, there is no clear line between interpreting and making law. Courts
make policy, even though as Waldron (2006, 22) comments they perform
their lawmaking functions under partial cover of a pretense that the law is
not changing.
Supreme courts at the state level are political in another way that is not
always recognized. Judges need to run for reappointment, and therefore judges
must please their constituents or run the risk of being voted out of office.
Although this consequence is infrequent, at least compared to legislators, it
happens. Following the unanimous Iowa Supreme Court decision in favor of
marriage equality, the three justices up for retention were voted out of office.
Iowa voters let their supreme court know that they were mightily displeased
with the courts decision. In so doing, a message to judges in supreme courts
around the country went out:Judges had better be careful not to get too far out
in front of public opinion or they will lose theirjobs.
7.FOR THELAW TOFUNCTION WELL, JUDGES NEED TOCHOOSE

WISELY HOW TOMANAGE THELAWS CONTRADICTORY
TRUTHSLAW IS APOLITICAL AND IT IS POLITICAL.
Through the language and argument choice judges made as they participated
in oral argument in these marriage cases, we saw them tacking between partly
contradictory commitments. In exercising review of constitutional issues,
judges will of necessity confront difficult moral issues.10
In his insightful book about judicial review in constitutional law areas,
Jefferson Powell (2008, ix) argues that constitutional law deals with matters
that are clearly political, but the language in which these matters are discussed
sounds like a form of apolitical law. Powell goes on to describe four possible
ways judges can manage the tension between the political and apolitical charac-
ter of the law. (1) Judges may give their vote to the highest bidder; (2) they may
uphold their political commitments adorning them with the appropriate legal
precedent; (3) they may adhere to an apolitical application of the law and sup-
port decisions that are at odds with valued moral preferences; or (4) they may
seek the best human outcome seeking to honor the interpretive frame spelled
out in the preamble to the Constitution while remaining attentive to the rules
of the law. Powell clearly favors the last option. In this study I have shown how
the lawas a collection of judges across time and placesstruggled with
these contrary truths and, at least in this case, inched toward the best human
outcome.
The constitutional places where judges turnreadily displayed in the mar-

riage law casesare the due process and equal protection clauses of constitu-
tions, both state and federal. Political scientists Segal and Spaeth (2002), in
fact, report that these two clauses of the US Constitution are more litigated
than any other clauses. In his study of how courts managed financing related
to accomplishing social goals in the public schools, Bosworth (2001, 5)showed
that federal courts used the two clauses to find previously undiscovered con-
stitutional violations in state institutions.
The official court view of their role is that they are apolitical, but no
thoughtful legal person, or anyone else for that matter, can believe that this is
the case. Not infrequently in the courts, as well as in the legislature, political
is used as an epithet. In a symposium about Keith Bybees (2010) book, All
Judges Are Political Except When They Are Not: Acceptable Hypocrisies and
the Rule of Law, Silverstein (2013, 190)introduces the focal argument of the
book saying:Judges are, at once, disinterested and partisan, principled and
predisposed, outside of politics and entrenched in its muck. What I would
highlight about her language is that the second part of each pair treats the
political as only a negative force. It is important to remember, though, that it
is the political within the law that has made possible women, persons of color,
religious minorities, and now gays having many of the rights of other citizens.
Judicial activism may not be a good thing but, certainly, humane-spirited
interpretation of constitutional clauses is. It is important for supreme courts
to take seriously these contrary truths bearing on interpreting thelaw.
Epilogue:TheFinale
In June, 2013, the US Supreme Court struck down one of DOMAs two sec-
tions. No longer could the federal government deny same-sex married couples
the benefits that it gave to opposite-sex married couples. Speaking for the
Court majority, Justice Kennedy announced the 5-4 vote saying, By seeking
to displace this protection and treating those persons as living in marriages
less respected than others, the federal statute violates the Constitution.11 With
this endorsement from the highest court, state and federal courts around the
United States began to make decisions that supported the rights of gay couples
to marry. In addition, a handful of state legislatures also revised their laws to
allow same-sex couples to marry. By May 2014 marriage for gay couples was
legal in 19 states.
In October 2014, the US Supreme Court declined to take an appeal to
consider the legality of banning same-sex marriage. In so doing, the rulings of
lower courts in Virginia, Oklahoma, Utah, Wisconsin, and Indiana that had
struck down bans on gay marriage were upheld. Others states marriage laws
were implicated and by November 2014, same-sex marriage was legal in 35
states.12 Then in that same month, the 6th Circuit U.S. Court of Appeals in a
2-1 vote arrived at a contrary decision, stating in its 42-page opinion, Better
in this instance, we think, to allow change through the customary political pro-
cesses, in which the people, gay and straight alike resolve a new social issue
in a fair-minded way (Baldas2014).
By January 2015 the US Supreme Court had agreed to hear Obergefell
v. Hodges, a lawsuit named after an Ohio case. This Ohio case was bundled
with cases from Michigan, Tennessee, and Kentucky to create a single con-
solidated case in which two questions were identified:(1)Does the Fourteenth
Amendment require a state to license a marriage between two people of the
same sex? (2) Does the Fourteenth Amendment require a state to recognize
a marriage between two people of the same sex when their marriage was law-
fully licensed and performed out-of-state?13 Polls conducted in April 2015, the
month the US Supreme Court heard the Obergefell case, revealed roughly 60%
of Americans, depending on the particular poll, favored legalizing marriage for
same-sex couples.14
On April 28, 2015 the Court heard oral argument. Immediately afterwards,
commentators, with different amounts of caution, began to predict that same-
sex marriage was soon to be legal. Boston Public Radios news website pro-
claimed Obergefell v.Hodges May Go Down in History as Landmark Civil
Rights Case, and compared the case to Brown v.Board of Education and Roe
v. Wade, which had extended rights to African Americans and women.15 Of
note, during the two and one-half hours of oral argument the label homo-
sexual was never used.16 In a next-day commentary about the oral argument,
Linda Greenhouse, the NewYork Times Supreme Court commentator, opined,
On Same- Sex Marriage, Its Too Late to Wait- and-See at the Supreme
Court.17
Its too late for wait-and-see because the country has already traveled so
far down the road to marriage equality, with hundreds of thousands of
children being raised by same-sex parents, with hundreds of major corpo-
rate employers signing on to the cause in a brief filed with the court, with
approval of same-sex marriage surging in the polls. I dont know what the
latest opinion polls show, Chief Justice Roberts mused during the argu-
ment. O.K., lets tell him:61percent approval and climbing.18
Finally toward the end of June in 2015 the Court made public its deci-
sion:marriage for same-sex partners was made legal. The social change that
had seemed improbable 10years earlier was now the law of the land. Writing
for the majority in a closely divided Court, Justice Kennedy began the Opinion
of the Court by proclaiming the Constitutions commitment to liberty for all,
a liberty that includes certain specific rights that allow persons, within a law-
ful realm, to define and express their identity.19 After celebrating the tran-
scendent importance of marriage,20 and its centrality to the human condition,
Kennedy traced the rationale for the Obergefell decision back to Lawrence
v.Texas:
As this Court held in Lawrence, same-sex couples have the same right as
opposite-sex couples to enjoy intimate association. Lawrence invalidated
laws that made same-sex intimacy a criminal act.Outlaw to outcast may
be a step forward but it does not achieve the full promise of liberty.21
To deny same-sex couples the right to marry, the opinion further proclaimed,
was to disparage their choices and diminish their personhood.22 These cou-
ples ask for equal dignity in the eyes of the law and, the Court concluded,
the Constitution grants them that right.23
With this decision, the public meaning of gay identity was officially trans-
formed; gays and lesbians were no longer outlaws or outcasts but had become
a fully legitimate category of US citizen. Writing in his opinion column in The
NewYork Times the Sunday after the decision was announced, Frank Bruni
commented,
The Supreme Courts decision wasnt simply about weddings. It was about
worth. From the highest of this nations perches, in the most authoritative
of this nations voices, a majority of justices told a minority of Americans
that theyre normal and that they belongfully, joyously and with cake.24
NOTES
Introduction
1. In Grad and Rojos (2008) words, it is identitys ability to manage the tensions
between structure and agency that makes the term so powerful.
2. See Spencer-Oatey (2007) for a discussion of how face and identity are closely con-
nected. Benwell and Stokoe (2006) distinguish identities by context/form and in their typol-
ogy include everyday, institutional, narrative, commodified, spatial, and virtual identities.
3. My typology, developed in Tracy and Robles (2013), is similar to that of conversation
analyst, Don Zimmermans (1998) three-category system. His typology distinguished (1)dis-
course identities, the moment-to-moment conversational actions in which parties engage (e.g.,
questioner and answerer) from (2)situational identities, professional role identities such as
appellate court judge and petitioning attorney, from (3)transportable identities, personhood
features such as sex, age, and race that are visible and are carried by a person from context to
context. The main difference between my system and his is that Itreat his notion of discourse
identities as discourse strategies used to enact the other kinds of identities, and Igive atten-
tion to the personal facet of self that he downplays. Iforeground the notion of personal iden-
tities because Iregard the attitudinal and moral dimensions of self as especially important.
4. See Tracy and Naughton (2000).
5. The term altercasting was initially used by Weinstein and Deutschberger (1963)
and McCall and Simmons (1966). Ihave used it (Tracy 2002; Tracy and Robles, 2013)in
two editions of a text about everyday talk and identities to refer to how one persons talk is
implicating who the spoken-to party mustbe.
6. Positioning as an idea is less language-attentive than the notion of stance-taking
(Englebretson 2007; Jaffe 2009), but it gives more attention to the unique aspects of identity
that sociolinguistic studies downplay or ignore. Psychologist Rom Harr calls this process
positioning, and emphasizes the quality-of-person aspects of identity that discourse can
cue. See Harr and Moghaddam (2003) and Harr and Slocum (2003).
7. The Senate hearing was entitled 598, The Respect for Marriage Act:Assessing the
Impact of DOMA on American Families, and it sought to repealDOMA.
8. Most states call their highest court of appeals the [state name] Supreme Court. In a
few states, and NewYork is one of them, the court has another name. NewYorks highest
court is called the NewYork Court of Appeals.
9. To be sure, the law is all about legal cases, especially those authored by the US
Supreme Court. When students go to law school, they are learning the content of such
cases and how to apply them to novel situations (Mertz 1998, 2007). There are also books
(e.g., Garner 2009; Re and Re 1999; Scalia and Garner 2008)that seek to prepare attorneys
for oral argument in appellate courts. But an analysis of the actual discourselooking at
exactly what was said and reflecting about language, discourse, and rhetorical strategiesis
rare. The exceptions to this generalization will be introduced later in thebook.
175
176 Notes
10. My own attitude, and how it has changed across time, is not that different from
most Americans. As of 1990 Ihad never thought about the possibility of marriage between
same-sex couples. When I first heard about the Hawaii court case in the early 1990s
Ithought the issue of marriage for gay or lesbian couples did not warrant much thought.
By the time the Massachusetts Supreme Court legalized same-sex marriage in 2003, Ihad
come to see the right to legalize committed relationships as reasonablealthough wouldnt
civil unions serve the same purpose and not antagonize the religious among us? By a few
years later Ibelieved marriage for gay men or lesbians was a civil rights, equality issue. As
Ihave been studying the legislative hearings and listening to lesbian and gay citizens speak
about their hopes and fears, the challenges of daily lives, and why they deserve marriage
equality, an issue explored in Chapter7, Ibecame increasingly certain this social change
deserved to happen.
11. See http://www.people-press.org/2013/06/06/in-gay-marriage-debate-both-supporters-
and-opponents-see-legal-recognition-as-inevitable/.
12. Goodman is quoted in Klarman (2013,135).
13. Even though fornication and adultery laws are rarely enforced today, they remain
on the books in a number of states. In 2005 a case was brought in Virginia prosecut-
ing a single male who had sex with a single woman and gave her herpes. The case was
prosecuted based on the original 19th century law, but the Virginia Supreme Court ruled
against the plaintiff, proclaiming: We find no principled way to conclude that the
Virginia statute criminalizing intercourse between unmarried persons does not improperly
abridge a personal relationship that is within the liberty interest of persons to choose.
The Washington Post headlined the outcome of the trial as Singles Sex No Longer a VA
Crime (Morello2005).
14. Quotes are taken from the appendix of the amicus curiae brief prepared by the
Cato Institute in support of the petitioners in the 2003 Lawrence v.Texas case (see Eskridge
and Levy2003).
15. See Eskridge (2008, c hapter1).
16. See the section on 19th-century sodomy laws in Eskridge and Levy (2003).
17. Eskridge (2008, chapter3).
18. In the early 1960s a payola scandal, labeled gayola, occurred in San Francisco. Police
were demanding bribes and kickbacks from gay bars if they wanted to keep their licenses.
19. Several factors affected the likelihood of organizations succeeding. In a study that
analyzed close to 400 cases in state and federal courts between 1980 and 2000, political sci-
entist Daniel Pinello (2003) found that the greater the ethnic, gender, and age diversity of a
benchi.e., African American, Latino, Jewish, female, and judges in their 30s and 40sthe
more likely a court was to make positive decisions favoring gays and lesbians. In addition,
state courts were generally more favorable than federal courts and those states who heard
the largest number of gay rights cases made the largest number of favorable decisions.
20. The information about the Bowers v.Hardwick case is drawn from Richards (2009)
and Eskridge (2008).
21. As Eskridge (2008) pointed out, the Clinton scandal made clear that a negative
judgment about sodomy did not apply to heterosexuals. As he put it, heterosexual sod-
omy was as Americans as baseball cards and chocolate donuts (268). If in fact Monica
Lewinskys act of oral sex had occurred 18months earlier than it did, when Washington,
DC still had a sodomy law, President Clinton could have been convicted of a felony.
Notes 177
22. See http://en.wikipedia.org/wiki/Romer_v._Evans.

23. See Eskridge (2008, c hapter8).
24. David Richards (2009, 140) described oral argument during the Lawrence case
in this way:The courtroom was crowded with an audience of largely gays and lesbians
who followed every turn in the argument with rapt attention, and a growing excitement as
it became clear, both from the tone and the substance of the oral arguments (including a
certain levity in jokes coming from the bench, leading to laughter from the audience) the
degree to which a majority of this Court, in contrast to the Court in Bowers, might indeed
be not only open but hospitable to an argument that would overrule Bowers.
25. Justice OConnor voted with the majority regarding the illegality of the Texas law,
but disagreed that Bowers should be overturned. Her dissent argued that laws prohibiting
sodomy were acceptable as long as states targeted heterosexual and homosexuals equally.
The Texas law only forbade homosexual sodomy (Richards 2009, c hapter8).
26. See http://gaytoday.com/people/062104pe.asp.
27. DOMA passed in the Senate by a vote of 85-14 and in the House by a vote of 34267.
See http://legal-dictionary.thefreedictionary.com/Defense+of+Marriage+Act+of+1996.
28. See http://legal-dictionary.thefreedictionary.com/Defense+of+Marriage+Act+of
+1996.
29. See http://www.cnn.com/2012/05/11/politics/btn-same-sex-marriage.
30. For overviews of discourse analysis, see Gordon (2015), Jaworski and Coupland
(1999), Cameron (2001), and Cameron and Pavonich (2014).
31. My thanks to the Center to Advance Research in the Social Sciences (CARTSS) at
the University of Colorado for several small grants to fund the initial transcription of oral
arguments and public hearings, as well as for transcription and travel costs related to the
interviews conducted with state supreme courts judges.
32. See Billig (1987, 207). He comments how the very use of one phrase rather than
another will, then, indicate the seed, if not the flower of an argumentative position.
33. To hear oral argument, go to http://www.oyez.org/cases/2010-2019/2012/2012_12_307.
34. Avideo of the senate hearing may be found at http://www.judiciary.senate.gov/meetings/
time-and-location-change__s598-the-respect-for-marriage-act-assessing-the-impact-of-
doma-on-american-families.
Chapter1
1. Bakhtins work was not published in English until the 1980s. For an excellent over-
view of Bakhtins ideas, see Morson and Emerson (1990). His notion of the speech genre is
developed in his book by that title (Bakhtin1986).
2. For overviews of genre analysis, see Garzone (2015) and Tracy and Robles (2013).
To give just a few examples of recently investigated genres, Corona (2011) studied inter-
national commercial arbitration, Escudero (2011) used a corpus-based approach to inves-
tigate arbitration disputes related to intellectual property name, Parodi (2010) compared
textbook genres across four disciplines and Hyland and Tse (2009) contrasted the features
present in academic journal descriptions of theirfocus.
3. See Garzone (2015) for an overview of the different strands in genre analysis.
Garzone distinguishes the rhetorical-composition tradition illustrated by Miller (1984) who
defines genres as typified rhetorical actions based in recurrent situations (159), from the
178 Notes
systemic functional linguistics tradition illustrated by Martin (1984) and from the English
for Specific Purposes tradition illustrated by Swales (1990).
4. In their chapter on genre, Tracy and Robles (2013, c hapter11) show how the humor
in Sue who? a Jerky Boys comedy routine arises from its both using and playing with the
genre of potential-client-phoning-attorney-to-investigate-legal-options.
5. Iinterviewed 12 judges from five courts. Two of the courts had heard appeals of
their marriage laws. Three courts were from the mid-Atlantic region and the other two
were in the midwestern United States. Court size varied from five to seven justices, and in
all but one state, an intermediate appellate court existed. Of the judges interviewed, eight
were white males, two were black males, and two were white females. Three of the 12 were
Chief Justices in their court. Interviews were conducted in judges offices and ranged from
40 to 60 minutes. The interviews were semi-structured events, designed to explore four main
issues:(1)the practice of oral argument in the judges court and how it connected to other
appellate activities, (2)questioning style differences among judges, (3)perceived purposes
of oral arguments for the judges themselves, attorneys and the parties represented, and
society; (4)attitudes toward changes (i.e., circulating a version of the proposed opinion to
attorneys, televising proceedings, changing the process of judge selection) that have been
proposed or adopted in other courts. The interviewing was conducted in a style that aimed
to be conversational and build on what judges said to determine question/issue sequencing
and good areas for probing (Mishler1986).
6. The discourse examples in this chapter foreground the California cases:the 2008 In
re Marriage Cases that considered whether an existing state statute prohibiting marriage
between same-sex couples was legal and the 2009 Strauss v.Horton case that considered the
legality of the Proposition 8 constitutional amendment.
7. The exception to this generalization is when a party argues that a state law is violat-
ing the US Constitution and the justices of the US Supreme Court grant the request for the
Court to hear thecase.
8. Writ of certiorari, informally referred to as a cert petition, is the name that the US
Supreme Court uses for the appeal to consider a case. Agood number of states also use this
name, but other states use different ones such as petition for leave to appeal.
9. Most US states have intermediate appellate courts; only 10 of the smaller ones do
not (Langer 2002). As a result, and similar to the US Supreme Court, the majority of state
supreme courts have considerable control of their docket.
10. See http://www.courts.wa.gov/appellate_trial_courts/SupremeCourt, downloaded
January 3,2011.
11. See for instance Californias rules at http://www.courts.ca.gov/cms/rules/index.
cfm?title=eight&linkid=rule8_520. For a more detailed description of litigant briefs, see
Tracy and Delgadillos (2013) analysis of the New Jersey briefs and oral argument.
12. In the US Supreme Court, Collins (2004, 2007) showed that the presence of
amicus briefs is a sign of a cases importance. This principle seems equally applicable in
state supreme courts where amicus briefs are fair less common. My claim that amicus briefs
are uncommon comes from my interviews with judges in five different state supreme courts.
13. The value of oral argument has been a topic of lively debate among political sci-
entists and judges. Judge Martineau (1986) argued that oral argument is a vestige of how
the courts functioned in the United States early years. Initially, like the British legal system
on which it was based, American courts had no written texts; appeals were entirely oral
Notes 179
affairs. Over time appeals became increasingly a written activity. In the US Supreme Court
written briefs became an option and then by 1849 were mandated. At the same time the
permitted length of oral argument decreased significantly. In 1824, the US Supreme Court
heard a case about Congresss right to regulate navigation of waterways versus a states
right to decide. This oral argument lasted 20 hours and occurred across five days. By 1970,
the amount of time allocated to oral argument in the US Supreme Court was down to 30
minutes per side (Wrightsman 2008). In intermediate appellate courts today, oral argument,
if it occurs, is often no more than 1520 minutes and may be as little as 10 minutes per side.
Duvall (2007) estimated that 90% of the time judges will vote as they would have after read-
ing the written briefs. Bright (1986), however, disagreed with Martineaus largely negative
assessment. Because oral argument is not needed in some cases, he commented, does not
mean that it is of little value in mostcases.
Political scientists have been especially skeptical of the role of oral argument, assum-
ing that it has little effect on decisions. Through a series of quantitative studies that cor-
related justices voting on particular cases with their identified political leaning, Segal and
Spaeth (1996, 2002)showed that judges often vote their attitudinal preferences. Segal and
Spaeth treated their results as showing that oral argument is inconsequential, but Johnson
(2004) found their interpretation problematic. Ajudicial opinion is both the Court vote and
the reasoning that is offered in the opinion. Selecting 75 cases of the US Supreme Court
from a 15-year period (19721986), he tested the influence of oral argument on the final
judicial opinions. After dividing cases into those that had amicus briefs (57%) and those
that did not (43%), Johnson identified whether each piece of information in the judicial
opinion originated in the briefs only, the briefs and oral argument, or the oral argument
only. In both amici and no-amici cases, he found that a full 45% of the information in judi-
cial opinions originated only in oral argument.
14. There are exceptions. Judges on the Maryland Supreme Court, which was one of
the earliest state supreme courts, wear redrobes.
15. Wrightsman (2008 chapter 4) identified seven motives for judges questioning.
Motives included: (1) to learn information perceived to be missing from the case; (2) to
clarify the advocates positions; (3) to point out problems with the advocates position;
(4)to present viewpoint contrary to that of the advocate; (5)to determine implications of
the position; and (6)to communicate with another justice. These six motives are similar
to what judges in the interviews reported to be the purposes of oral argument. The only
motive not acknowledged by judges in my interviews was the role of questioning as doing
humor and release tension. Although judges admitted that humor occasionally occurred in
their courts, they tended to frame humor as dangerous and to be avoided.
16. Justice-I told the following story in support of his claim that a purpose of oral
argument was to display fairness and justice being enacted:When Iwas a trial lawyer if
you had a judge who may not have been the brightest crayon in the box but treated every-
body with respect, explained his or her rulings, um, tried to do the best job they can, and
was courteous to everybody, when your client would lose, and In-and Ithought the judge
was dead wrong, my clients would normally say, Well, Idont want to appeal it, Ithink
Igot my fair shake. On the other hand, when you got a judge who was very, very smart,
but very curt with people, didnt treat them properly, and didnt really explain what he
was doing, but he was-he or she was right every time, there was nothing appealable-the
client would invariably say, I want to appeal this, because Iwasnt treated fair. So Ithink
180 Notes
its important. And weve had cameras in our courtrooms, our district courtrooms, and
our supreme courtrooms for twenty years. And I-Ithink its important for the public to
actuallysee.
17. The transcription conventions employed include a subset of those used in conver-
sation analysis (Atkinson and Heritage 1999). In particular pairs of brackets in adjacent
lines ([)are used to indicate the overlapping speech of two participants; hyphens indicate
cut-offs of syllables; double parentheses include descriptions of hearable sounds and vocal
quality; and pairs of equals signs indicate where speech was contiguous when two par-
ties were speaking. The punctuation in the transcripts has been added to make exchanges
reader-friendly and does not reflect intonation. Italics are used to draw attention to seg-
ments of the transcript that are the focus of analytic commentary.
18. See also Craig and Tracy (2005,2010).
19. Determining whether a segment of speech deserves to be seen as an interruption
is a complex judgment. Although simultaneous speech is often perceived to be interrup-
tive, not all instances are. Schegloff (2000) identified four kinds of overlapping speech
that are generally not assessed as interruptions:(1)terminal overlaps that occur near the
boundaries of turn constructional units; (2)the use of continuers such as uh huh and
mm; (3)moves where a partner conditionally intrudes into a turn to help with a word
search or to retrieve a name; and (4)what could be described as choral talk, events such as
joint laughter, or simultaneous good-bye saying. James and Clarke (1993) define interrup-
tion in terms of a speakers perceived intention to prevent a first speaker from finishing.
Simultaneous speech judged to be collaborating with the current speaker will generally not
be seen as in an interruption. At the same time non-simultaneous speech may be judged as
having an interruptive aim. All of this is to say that while interruption in everyday talk is
treated as straightforward, it isnot.
20. Achallenge in analyzing talk in any communicative practice is the jumble of
theoretical and lay terms that are available to describe distinctions in peoples conduct.
To cite just a few, Goffman (1955) gives us face, facework, aggressive facework; Lakoff
(1973)politeness rules of deference, distance, and camaraderie; Brown and Levinson
(1987) face, face-threatening act, positive politeness, negative politeness, bald- on-
record; Harr (1979)respect and contempt; Leech (1983)politeness as a principle
that takes its meaning from its neighbors (tact, generosity, etc.). Watts (2003)the
importance of distinguishing politeness as a judgment that participants make (polite-
ness 1)from the scientific concept (politeness 2), as well as the notion that politic behav-
ior is not identical to polite conduct. In addition, we have relational work (Arundale
2006); rapport management and quality, relational, and social identity face (Spencer-
Oatey 2000); identity-work and identity indexing (Garces-Conejos Blitvich 2009). On
the often-but-not-always, negative side of the aisle we have bald-on record, negative,
and positive impoliteness (Culpeper 1996); rudeness that may be reactive or sociable,
motivated or unmotivated (Kienpointner 1997); and face attack (Tracy 2008). Among
ordinary speakers impolite conduct is described as patronizing, rude, inconsiderate,
aggressive, or hurtful, whereas among psychological and family care experts, the likely
terms are verbal aggressiveness and verbal abuse (Culpeper 2011). Each of these terms
comes with a definition that draws boundaries between itself and other concepts in dis-
tinctive ways. Each is tied into a network of selected other terms that highlight some
features of the world and downplay or ignore others. When terms are used to describe
Notes 181
they encourage fellow language users to see or understand certain aspects of reality
one way rather than another (Schiappi 2003, 1314). Defining terms is always done to
facilitate a speaker or writers purposes.
21. The sensitivity of face in academic colloquia (Tracy 1997), and public meetings of
school boards (Tracy 2010)offers an interesting contrast with oral argument.
22. In an essay which compares how cultural pluralism is conceived in courts versus
legislatures Gershon (2011, 158)comments, Contexts and people (who are not associated
with the court) can be cultural, but laws and court officials (judges, lawyers, bailiffs, etc.)
will often be understood as aculturalas existing somehow above or outside of cultural
difference.
23. Whether rhetorical questions are rare, sometimes used, or commonplace in oral
argument in general would require study of a much largerset.
24. See http://en.wikipedia.org/wiki/Kenneth_Starr.
25. In the California cases, the lineup of plaintiffs and defending agencies was espe-
cially complicated. It did not divide by private parties being the plaintiffs and states agen-
cies being the defense, as it did elsewhere. In In re Marriage Cases, for example, the city/
county of San Francisco was one of the plaintiffs, and a private organization, the Alliance
Defense Fund, was one of the petitioning agencies. However, because the role of petitioner
and respondent switched in different states, and the state in all other cases was the defend-
ing agency, Irefer to the parties as Plaintiffs or theState.
Chapter2
1. Epistemic stance, also called evidentiality stance, focuses on the relative certainty
or doubt speakers have about what they are expressing, and include adjectives (e.g., obvi-
ous, dubious), adverbs (perhaps, indeed), verb forms (demonstrate, indicate), and modals
(might, should) (Biber and Finnegan1989).
2. See Tracy and Durfy (2007).
3. Speakers selections of membership terms have been found to be crucial in assign-
ing blame for crimes (Stetson 1999), establishing or problematizing courtroom expertise
(Winiecki 2008), establishing valued identities in radio talk shows (Fitzgerald and Housley
2002), coercing people into psychiatric hospitals (Roca-Cuberes 2008), and reinforcing het-
erosexuality as the normal (Kitzinger 2005a, 2005b). By virtue of their evaluative asso-
ciations, membership terms cue certain actions as reasonable ornot.
4. Membership terms draw attention to the category level of person referencing and
what kinds of inferences are set in motion by choosing one kind of category over another.
But another type of naming issue has to do with the particular term that is selected among
the many available within a broad category. Do you refer to white people in the United
States as Caucasians, European Americans, whites, or Anglos (Martin etal. 1999)? Should
Latinos be called Mexican Americans, Spanish, Hispanic, or Chicanos (Tanno 1997)? Each
of these choices conveys information about a persons stance toward socially contested
issues and particular kinds of others (Tracy and Robles 2013). In general, speakers who
use a term to refer to a marginalized category of person that the members of the category
themselves prefer will be taken to have a more politically liberal and sympathetic position
than those who donot.
182 Notes
5. Similar to other cases that have come to mark major policy shifts such as Roe
v.Wade (Schuetz 2007, chapter1), the litigants in these marriage cases were often not ordi-
nary people who simply decided to pursue the issue of their unfair treatment. Rather, gay
rights organizations approached particular couples who had profiles that would make the
strongest case related to existing state or federal law. Piercson (2013, chapter4) narrates
how after Bowers v. Hardwick (1986) in which the Supreme Court upheld sodomy laws,
lawyers in Lambda Legal came together to figure out the best state in which to raise future
issues. Beckers (2014) Forcing the Spring details the planning of powerful individuals and
gay rights groups to determine the best ways to move the marriage equality debate forward
after its defeat in California with the upholding of Proposition 8.Apiece of this organiza-
tional planning involved selecting a sympathetic, long-term committed couple to serve as
plaintiffs.
6. Use of first names (given names) rather than last names (surnames) seems a good
way to personalize the referenced party. Whether the use of forms of a name in appeals
courts accomplishes different functions is an interesting issue for inquiry.
7. Perhaps not surprisingly, the term queer was not used in any of thecases.
8. Each court case was divided into three files, where each file included all utterances
of that category of party (judge, plaintiff, defense). Terms (homosexual, same-sex, gay,
lesbian, plaintiff) were searched with categories using the search features within MSWord.
Each term was inspected to see if it was a person-reference or if it was being used as a modi-
fier. If it was a person term it was counted and categorized. Unique references were identi-
fied by reading through the transcript and locating other forms for referring to persons.
MSWord provides a total word count within a file and this was used as a baseline to com-
pute an index of number of person-referencing terms per 1,000 words. Sexual-orientation
terms that modified nonperson units such as institutions (e.g., same-sex marriage) were
not included.
9. See Cantor (2006,xiii).
10. AChi-Square test measures whether the association between the type of person
referencing and courtroom role is significant. For Table2.2, 2 =53.76, df=4, p<.01.
11. For Table2.3, 2 =23.86, df=4, p<.01.
12. For Table2.4, 2 =48.69, df=4,p<.01.
13. See page1 of http://glaad.org.Page.aspx?pid=380.
14. GLAAD (Gay Lesbian Alliance against Defamation) has a media reference guide
that includes excerpts for stylebooks giving information about reference terms preferred by
the Associated Press (2006), The NewYork Times (2005) and The Washington Post (2006).
See http://glaad.org.Page.aspx?pid=380.
Chapter3
1. Both of these judges serve or served on the US Court of Appeals in Washington,
DC. These remarks appeared in Segal and Spaeth (2002, 49)who were quoting from law
review articles that each judgewrote.
2. See Sypnowich (2014) for a nice introduction to some of the different kinds of ideol-
ogy in and about thelaw.
3. Woolard and Schieffelin (1984) offer a comprehensive review of the different mean-
ings of the term, particularly in anthropological linguistic traditions. Gals (2005) version
Notes 183
of language ideologies are closely bound to political meanings of the term. Ng (2009)
explores how linguistic ideologies work in the bilingual Hong Kong courts.
4. In her studies of sexual assault trials, Ehrlich unpacks multiple aspects of ques-
tioning that shape the meanings that get established. In criminal trials she showed how
both defense and prosecution asked questions whose wording presupposed that a sexual act
counted as rape only if the victim had strongly resisted (Ehrlich 2001). Ehrlich (2002) also
explored how a feminist lawyer was able to design her question to combat this hegemonic
discourse about gender and reasonable action. In a civil trial in which a plaintiff was suing
her physician for damages for sexual assault and breach of trust, the attorney asked ques-
tions of the victim that treated all non-consensual sex as coercive.
5. Although all eight cases were coded for the analysis that compares questioning fea-
tures by how each judge voted, only seven cases were included. The second California case
was not included to avoid representing these seven judges twice. The details of the coding,
including reliabilities for each category, are described in Tracy and Parks (2012).
6. The New Jersey Court unanimously voted to extend the rights of marriage to gay
couples, but only a minority of justices voted to extend the name marriage. However, as
the name marriage was key in other states (e.g., CA, CT), it seemed most reasonable to
put justices who did not favor extending the name marriage in the against category.
7. Iused the rules developed in Tracy (2009) to identify questioning turns, in essence count-
ing a single stretch of a judges talk as a turn regardless of how many issues the turn raised.
8. There are many reasons why a judge might not ask questions during oral argument.
In this case about extending the right to marry to same-sex couples, one way to frame
the issue confronting the courts is to see gay plaintiffs as seeking to change the taken-for-
granted definition of marriage. The 19th-century thinker Richard Whately (1836), credited
with developing the ideas of burden of proof and presumption, argued that it is the party
who seeks to change an existing institution that must (usually) assume the burden of proof.
Extending this notion to judicial questioning, it seemed possible that justices who favored
the current institutional arrangement would feel less need to question. This, in fact, was the
case. Of the eight judges who did not question, 75% voted against same-sex marriage. The
judges came from four different courts:three from Maryland, two from New Jersey, two
from Connecticut, and one from Washington.
9. Studies of oral argument have focused almost entirely on the US Supreme Court.
Afirst kind of study has engaged in narrative/rhetorical analysis of landmark cases, includ-
ing, for instance, Brown v.Board of Education (Dickens and Schwartz 1971), the case that
ended school desegregation in the United States; and Loving v.Virginia (Wasby, DAmato,
and Metrailer 1976), the case that legalized interracial marriage. Argument scholars have
also examined cases in which the Court overturned a precedent that it had earlier estab-
lished (Benoit 1989). Asecond kind of study has coded certain features of oral argument
to see if features of questioning could be linked to outcomes. Political scientist Johnson
(2004), for instance, coded the exchanges in the publicly available transcripts of 75 cases
of the US Supreme Court (19721986) to see how much information from oral argument
was reflected in written opinions. Of notean interesting contrast with our studyUS
Supreme Court transcripts for this time period did not identify individual judges, referring
to all question-askers as the court. Arguing with other political scientists (i.e., Segal and
Spaeth 2002), Johnson showed that for a significant proportion of the time, the reason-
ing in US Supreme Court opinions reflected issues that were raised during oral argument.
184 Notes
Another study of oral argument was an observational analysis by attorney Shullman

(2004), about the content and the tone of justices comments (hostile vs. sympathetic), as
well as the number of questions addressed to each party. She was interested in whether the
justices questions foreshadowed their votes. For some of the nine justices, she concluded
it did; for others, it did not. Afinal study sought to improve on Shullmans broad-stroke
observational analysis to assess if features of justices questioning would quantitatively
predict outcomes. Wrightsman (2008) analyzed 24 transcripts of a years total 74 oral argu-
ments. Of note, he was not able to reliably operationalize whether a question was sympa-
thetic or hostile and he found no support for her conclusion that the side that receives
the greater number of questions from the court as a whole is likely to be the losing side. As
a discourse analyst, Iexpected to identify more language-specific ways to analyze questions
than might occur to political scientists, attorneys, or psychologists.
10. Deeb (2013b) also analyzes how judges used gesture and metaphors to construct
their identities as for or against marriage equality in this Californiacase.
11. Icall this process, which involves working inductively while making frequent use of
past research, theoretically informed induction. See Tracy and Robles (2009) and Freed
and Ehrlich (2010) for a review of questioning in institutional sites; these two references
overview facets of questions that were applied to this oral argument context.
12. Inferential statistics, which provide estimates of statistical significance, assess the
likelihood that a difference displayed in a sample exists in the larger population. But what
population of cases the marriage law appeals are sampling is difficult to formulate. By no
means is it reasonable to see these cases as a set of typical state-level supreme court cases.
These marriage appeal cases were especially high-visibility cases, garnering considerably more
attention for a court than most of its other decisions within a several-year window. These
cases could be conceived as a population:they are all of the US state supreme courts mar-
riage laws appeals that occurred in this period. If we treat the cases as a population, then by
definition, the differences that are exhibited in these data are real differences. They are the
actual differences that exist in US state judges questioning about this issue. Perhaps most
useful would be to think of these cases as a sample of cases dealing with contentious political
ideology issues. Admittedly, what the boundaries of this theoretical population are is ambigu-
ous. To sample the population of political ideology cases by selecting a single issue, as was
done, has the advantage of focusing inquiry and limiting the amount of legal and political
knowledge needed to interpret this discourse. At the same time, this choice makes visible the
less-than-perfect link between these marriage law appeals and the hypothesized theoretical
population of political ideology cases. Cases about abortion, healthcare reform, or gun laws,
to name just three issues that are lively foci in US appeals courts, may lead judges to ques-
tion differently than Iobserved in these cases. Since Ibelieve this study has implications for
questioning in appellate cases involving political ideology issuesthat is, these cases are a
sample as well as a populationI have provided evidence (F-values and significance levels for
interaction effects) that the differences observed would apply in the population.
13. Given the frequency of disagreement-initiating questions in oral argument, it
seemed possible that disagreement tokens were not an independent feature of question-
ing and that the token was simply an artifact of a judge addressing more questions to a
particular side. To sort out this possibility, a disagreement index that measured tokens as
a percentage of the number of questions addressed to each party was created. If the dis-
agreement percentages were highly similar, it would suggest that disagreement tokens were
a fairly stable proportion of total questions. If the percentages differed by several points,
Notes 185
it would indicate that disagreement tokens had independent meaning. The means followed
the same pattern. Agreater percentage of questions beginning with disagreement tokens
was addressed to the party that a judge voted against.
14. The absence of an absolute form-function relationship is to be expected. That
promarriage-right judges did not use interruptions more frequently with the party they
opposed underscores the fact that while linguistic forms may sometimes or even often index
a particular stance or serve a specific function, they will not always do so. In addition,
when interruptions are examined in terms of their percentage of questioning turns, they
are found to be closely linked to overall question frequency. Thus interrupting as a feature
of questioning seems to be redundant with the frequency of questions addressed to aside.
Chapter4
1. For a discussion of federal courts, see Segal and Spaeth (1996, 2002)and Wrightsman
(1999); for state courts, see Comparato (2003) and Langer (2002).
2. The initial unpublished opinions were downloaded from the Washington Supreme
Court website at http://www.courts.wa.gov/opinions/?fa=opinions.recent. These six opin-
ions (no. 75934.1) are available at http://www.courts.wa.gov/newsinfo/?fa=newsinfo.
internetdetail&newsid=707. Page numbers in the analysis correspond to these documents.
3. Agency is a highly complex notion. Andrus (2015) offers a compelling analysis of
how interpretations of legitimate exceptions to the hearsay rule in domestic violence tri-
als remove agency from women who make statements when police show up. Police officer
reports of uttered words, not the womens, become the arbiters of meaning. Cooren (2003)
locates agency in texts themselves; this is a way of conceiving of agency gaining increased
attention among organizational communication scholars. Isee agency as requiring judg-
ment and responsibilitysomething only people possessso I regard Goffmans (1981)
concept of footing as a more fitted concept.
4. My thanks to a questioner during a keynote session where Ifirst presented these
ideas. He highlighted that burden-shifting can be done with smaller topical issues. Hence,
burden-shifting is not a practice that only dissenters can use. In the Washington case it was
used only by the dissenters, but it need notbe.
5. See http://www.iowacourts.gov/wfData/files/Varnum/07-1499%281%29.pdf for the
opinion.
6. In the next election after the decision, the three Iowa justices up for reappointment
were voted out of office. Klarman (2013) describes this as a good example of the backlash that
is likely to occur when a courts gets too far in front of what the publics opinion on an issueis.
7. See Dickson (2001, Chapter1) for dissent rates in the US Supreme Court. Chief
Justice Roberts is having a somewhat better record of unanimous opinions. In the 2013
2014 session, two-thirds of the 72 cases were unanimous decisions. See http://wtvr.com/
2014/07/01/supreme-court-had-highest-percentage-of-unanimous-decisions-this-session/.
8. Kaehler (2013) compares how supreme courts in different countries make use of
first-person forms in legal decisions. The European Court of Justice and the German
Supreme Court entirely avoid first-person singular references, whereas the US Supreme
Court regularly uses I in dissents and concurring opinions, but not in the majority opin-
ion. As he puts it, the first-person perspective best allows the expression of personal
beliefs. On the other hand, it discourages the formation of general rules which can best
justify legal decisions(534).
186 Notes
Chapter5
1. Idescribe the hearings as about permitting same-sex couples to marry, but one
of the hearings had an opposite frame. The Iowa hearing involved passing a bill that would
launch the process of amending the state constitution so that same-sex couples would no
longer be able to marry. This hearing occurred immediately after the Iowa Supreme Court
extended the right of marriage to gay couples.
2. To be sure, my argument rests on how argument is defined. If argument is
restricted to explicit claim-making plus reasons, then contexts do not make arguments.
However, when argument is defined as a way to advance a standpoint toward an issue, then,
as Ishow, contexts make arguments.
3. Whittington, Deavins, and Hicken (2006, 396)quote Woodrow Wilson.
4. Whittington, Deavins, and Hicken (2006, 399)found that 51% of the US Congresss
constitutionally focused hearings between 1971 and 2000, of which there were 1,152, con-
cerned rights and liberties.
5. Gershon (2011) considers how courts and legislatures differ, noting that while
judges are concerned with being objective, legislators attend to being accountable. In his
study of hearings to consider reforming bankruptcy law, Parrott (1996) shows how legisla-
tive committee chairs do considerable work through how they organize the participation in
a hearing and question testifiers to advance agendas with which they are associated in the
House or Senate.
6. The report of the Vermont Commission on Family Recognition and Protection noted
that across the eight hearings supporters of same-sex marriage outnumbered opponents
by roughly 20 to one(4).
7. Ihave located Vermont toward the fair end of the continuum, but it needs to be
noted that when almost all speakers are on one side, the criterion of fairness becomes
less meaningful.
Chapter6
1. Courts varied from 0 to 9 in their use of religious terms. When the length of the
hearing is factored in using a word count, the frequency of these six religious terms was .16
occurrences per 1,000words.
2. Eighty-one percent of the court references were some form of the word religion.
3. In addition, 65% of Americans report religion to be an important part of their daily
life (Newport 2009). Wald and Glover (2007, 115)described the United States as a nation
with the soul of a church that is also a secular society.
4. Such is the typical structure in both regularly recurring governance bodies such as city
council meetings (Leighter and Black 2010), school board meetings (Tracy 2007, 2010), and
university trustee boards (West and Fenstermaker 2002), as well as in meetings that are spe-
cially set to decide about a policy that is controversial, such as building of a Wal-Mart (Buttny
2009, 2010)or introduction of a Disney Park in a community (Olson and Goodnight2004).
5. This chapter bases analysis on the three longest hearings:Hawaii, Rhode Island,
and Colorado.
6. In education governance meetings, for instance, speakers often mention their lon-
gevity residing in a geographic area, the number of children they had in the school district,
Notes 187
their role as taxpayers, or an occupation that gave them expertise related to the focal topic
(Tracy2010).
7. In a conference paper, Tracy and Parks (2013) found 16% of the testifiers in three of
the hearings (NJ, RI, and HI) to be religious leaders.
8. For instance, van De Mieroop (2011) shows how debt defaulters being interviewed
by Belgium debt mediation services discursively work to disavow that they are irresponsible
money managers and reframe themselves as caring parents caught in tough circumstances.
9. See Sullivan (2005,3).
10. See Jones (2009).
11. To identify moments of apology in the 188 pages of testimony, I did a search
of the Word file on three terms:(1)sorry (96 uses), (2)apology/apologize (29 uses), and
(3)regret (2 uses), seeking to identify how the term was functioning. The most frequent use
of sorry (83%), as well as a good percentage of uses of apology/apologize (37%), was to
repair small conversational errors related to such things as skipping a speaker on the list,
a testifier coming to the lectern when it was not his or her turn, speaking for too long, and
mispronouncing a name orword.
12. See Liptak (2011).
Chapter7
1. Heffer (2010) complicates the notion that attorneys during a criminal trial are sto-
rytellers. Yes, he opines, but the actual story of the criminal event gets built in a very non-
story-like question-and-answer fashion.
2. See Tracy and Delgadillo (2013).
3. See van Dijk (1987).
4. Bamberg and Georgakopoulou (2008) develop the idea of small stories.
Grounded in study of adolescents informal storytelling, they highlight how what people
do in ordinary conversation often is much shorter and less fully formed than what is elicited
in research interviews. Apiece of discourse, they argue, should be conceptualized, not as
categorically a story or not, but rather as degrees of being a story. Small stories are used
to construct a sense of who people are. The hearing context is markedly different from the
informal teen conversations these authors studied, but their definition of small story is
useful in this setting.
5. In an online publication geared to attorneys called Persuasive Litigator, Broda-
Bahm (2011) suggests that an effective attorney needs to identify what are taken as god and
devil terms in any case. As he comments, A god term means more than just a good term
but is instead a rhetorical absolute, something that carries a strong automatic meaning.
That is, it isnt good because we can think of an argument why it is good. Instead, it is good
because it fits with at least one common worldview that our audience holds about what is
good. Same for devil termsthey carry a natural unfavorable connotation.
6. See Delgado (19881989, 21142115).
7. See http://www.pewforum.org/2014/09/24/graphics-slideshow-changing-attitudes-
on-gay-marriage/.
8. See the Pew survey cited in the introduction.
9. See http://blog.thenewstribune.com/opinion/2012/01/05/its-time-to-extend-rights-
of-marriage-to-same-sex-couples/.
188 Notes
10. Sent by Human Rights Campaign [hrc@hrc.com] on April 20, 2013 with subject
line titled Four reasons youll want thiscard.
11. Yagoda (2014) shows that the use of the phrases the right side of history and
the wrong side of history has been growing rapidly in the 21st century. The formulations
draw on a Marxist notion of history, which assumes history is moving forward toward
a better world. See http://www.slate.com/blogs/lexicon_valley/2014/04/17/the_phrase_the_
wrong_side_of_history_around_for_more_than_a_century_is_getting.html. Although the
uses of the term may be increasing overall, my point is that in a very short time and in a
particular context this phrase went from not being used to regularly beingused.
12. University of Iowa student, Zach Walls testified. See http://www.metacafe.com/
watch/5925599/iowa_lesbians_son_testifies_goes_viral/.
Chapter8
1. See House of Representative Report on DOMA (1996, 7, fn21).
2. DuBoiss (2007, 139)notion of stance and his concept of the stance triangle have
been particularly influential. He comments, Stance has the power to assign value to
objects of interest, to position social actors with respect to those objects, to calibrate align-
ment between stancetakers, and to invoke presupposed systems of sociocultural value.
3. APew survey conducted in September of 2014 found 72% of Americans to see reli-
gions influence lessening in public life. At the same time, 49% of Americans believe religion
should be more visible in public life. See http://www.pewforum.org/2014/09/22/public-sees-
religions-influence-waning-2/.
4. In this chapter Iuse the transcripts of the hearings made available through the US
Government Printing Office. For the 1996 hearing, no audio or videotape was available. For
the 2011 Senate hearing, a video of the hearing may be viewed at http://www.judiciary.sen-
ate.gov/meetings/time-and-location-change__s598-the-respect-for-marriage-act-assessing-
the-impact-of-doma-on-american-families. Inspecting the government transcript of the
2011 hearing while listening shows that the hearing transcript includes what was generally
said, albeit stripping out repetitions, uhs and ums, and word restarts. It is a cleaned-up tran-
script rather than a verbatim one, similar in style to what Walker (1986) described in her
study of court-produced trial transcripts. For consistency Iused the government produced
transcripts for both hearings. For the oral argument in the US Supreme Court, audio files
and transcripts are available at http://www.oyez.org/cases/2010-2019/2012/2012_12_307.
The transcripts for the oral argument are much closer to verbatim. For these transcripts
Idid one transcribing pass to add small speech perturbations that were omitted.
5. The second hearing began with testimony from three members of the US House.
These participants were excused immediately after testifying so they could return to House
activities and did not answer questions. These congressional members were not included
in the base in determining the number questioned. If they were the number of testifiers
questioned would still be above50%.
6. See H.R.3396.
7. The vote by the House Judiciary Committee was 20-10 in favor of the bill. See
Defense of Marriage Act Report (1996,23).
8. See DOMA Report (1996). For the responses from the Attorney Generals Office,
see pages 3334. A second inquiry to the Attorney Generals office was made after the
Notes 189
Supreme Court announced the Romer v.Evans decision overturning Colorados law allow-
ing discrimination against gays and lesbians. In addition to the report that went forward to
the House and Senate, a 250-page document reporting the testimony and discussion in the
hearing is available from the US Government Printing Office (Defense of Marriage Act,
Serial No. G-1996). It is from this document that Ipull excerpts of the testimony, question-
ing exchanges, and written statements.
9. See http://en.wikipedia.org/wiki/Defense_of_Marriage_Act. Downloaded September
6,2014.
10. See the table of contents (DOMA Report 1996,1).
11. A 359- page summary of the hearing is available from the government
printing office. Serial No. J- 112-35 includes a transcript of the hearing, response
to two questions that were posed in writing to two of the testifiers, and written let-
ters and petitions from many non-testifying parties. A video of the hearing is also
available at http://www.judiciary.senate.gov/meetings/time-and-location-change__s598-
the-respect-for-marriage-act-assessing-the-impact-of-doma-on-american-families.
12. See http://usatoday30.usatoday.com/news/politics/story/2011-11-10/democrats-gay-
marriage/51152184/1.
13. See http://www.feinstein.senate.gov/public/index.cfm/press-releases?ID=f4a6eb02-
edf8-4385-9de1-94227d15a57e.
14. See HOLLINGSWORTH v. PERRY, The Oyez Project at IIT Chicago-Kent
College of Law, accessed September 4, 2014, http://www.oyez.org/cases/2010-2019/2012/
2012_12_144.
15. Alively and engaging narration of the steps and strategies of the parties, especially
the efforts of Chad Griffin, now President of the Human Rights Campaign, and the two
attorneys arguing for the petitioners, is found in Forcing the Spring: Inside the Fight for
Marriage Quality (Becker2014).
16. The technical jurisdiction issues were as follows: Does the executive branchs
agreement with the lower court that the act is unconstitutional deprive the Supreme Court
of jurisdiction to decide the case? and Does the Bipartisan Legal Advisory Group
of the House of Representatives have standing in the case? See UNITED STATES
v.WINDSOR, The Oyez Project at IIT Chicago-Kent College of Law, accessed September
6, 2014, http://www.oyez.org/cases/2010-2019/2012/2012_12_307.
17. See HOLLINGSWORTH v. PERRY, The Oyez Project at IIT Chicago-Kent
2012_12_144.
18. See UNITED STATES v.WINDSOR, The Oyez Project at IIT Chicago-Kent
2012_12_307.
19. Drawing on Foucault, Gee (1999, 2015)makes the distinction between Big D
discourse and little d discourse. Big D discourse is similar to Foucaults (1973) idea of
sets of ideas and beliefs, whereas little d discourse refers to instances of talk and text. Using
slightly different vocabularymacrodiscourse and microdiscourseConley and OBarr
(1990) make a similar distinction.
20. See Gaskins (1992) for an interesting discussion of burden ofproof.
21. Practical argument is rhetorical; it involves a choice about action in the public
sphere that is not a matter of true or false. Practical argument is a matter of better and
190 Notes
worse, advantages and disadvantages. As Kock (2009b, 102)notes, We chose a given policy
because we place a high value on its alleged advantages, but the possible drawbacks inher-
ent in the policy do not lose their validity or cease to exist.
22. In footnote 54 (DOMA Report 1996, 16), the report justifies their judgment
by citing the Supreme Courts decision in Bowers v. Hardwick upholding the legality of
sodomylaws.
23. See 2011 hearing,8.
26. See Amossy (2009b).
27. See 1996 hearing, 6, 7.
28. See 1996 hearing, 35.
31. See 2011 hearing, 4546.
34. The phrase marriage equality occurred 12 times in the 2011 hearing.
35. The spokesperson for Focus on the Family commented, National Public Radio
featured an interview with a Massachusetts eighth-grade teacher, Deb Allen, who was exu-
berant about her new-found freedom to explicitly discuss homosexual behavior with kids
after the law passed in Massachusetts.
36. Homosexuality or homosexual was used a total of 43 times in the House hear-
ing in contrast to one usage in the Senate hearing.
38. The dictionary defines the phrase of course as meaning the usual or natural
order of things, See http://dictionary.reference.com/browse/of%20course.
39. On the webpage at her law firm of Paul, Weiss, Rifkind, Wharton & Garrison in
New York, Kaplan is described as thriving on looking at the big picture in the gay-
marriage legal fight. See http://www.paulweiss.com/professionals/partners-and-counsel/
roberta-a-kaplan.aspx.
40. Animus was used eight times in the oral argument, moral disapproval six times,
bigotry one time, and prejudice not at all. Animus was never used during the hearing.
41. Stated by Representative Bob Barr, Georgia in the 1996 hearing, 37.
42. Stated by the testifier Whyman in the 1996 hearing, 74.
43. For homosexual activist, see Bob Barr (1996, 37); for extremist homosexual
groups, see testifier Whyman (1996, 74); and for judicial activists, see Tom Terrence
(1996,53).
44. Chair Canady said this in his opening remarks (1996,2).
Chapter9
1. Iuse capital D in discourse to signal the Foucauldian meaning of Discourse as
indexing broad sets of social beliefs and expression practices about a topic (Gee2015).
2. Iam describing judicial committee chairs as having agency to make these decisions
about hearing design. It is important to acknowledge, though, a chairs sense of agency will
Notes 191
be strongly constrained by the usual practices regarded as the right way to do things in that
particularbody.
3. To be sure, the divide between person-rights and scientific-technical issues is not
straightforward. At another point in time, the issue of how to deal with sexual identity
could have been seen as a policy issue to be determined by scientific evidence from medicine
and psychology rather than an issue ordinary people were entitled to weighinon.
4. See http://www.pollingreport.com/civil.htm.
5. In 1992, only 42% of Americans reported knowing a gay person. By 2010, it was
up to 77%. See http://www.cbsnews.com/news/poll-with-higher-visibility-less-disapproval-
for-gays/.
6. See Hughes (2015) for a thoughtful analysis of the debates about autism conducted
between parents of autistic children, the main members of national autism organizations,
versus high-functioning adult autistics.
7. The website, Colorado Alliance for Future Americans, offers one example of
person-reference reframing: http://www.cairco.org/tags/dream-actp://www.ibtimes.com/
illegal-immigration-2015-colorado-considers-funding-immigrant-drivers-license-program-
1857096. In 2013 Colorado approved allowing undocumented immigrants to get driv-
ers licenses. Doing so is a contested issue. See http://www.npr.org/2015/02/01/382984831/
for-colorados-undocumented-the-wait-at-the-dmv-just-got-longer.
8. An example of building features into a genre that undermines a genres espoused
purpose can be seen in police department citizen academies. Citizen academies in the United
States are extended classes that involve citizens in the community learning about various
facets of policing. The academies bring police officers and department staff into conversa-
tion with a group of citizens. The focal purpose of citizen academies is to improve relation-
ships between the police and the community but, as is widely recognized, relations with
the community are not equally problematic. People who are poor, black, or young are
most likely to have negative attitudes toward the police (Weitzer and Tuch 2006). Initially
police departments had a difficult time recruiting officers to participate in academies as
officers feared being verbally attacked. To insure that citizens were low risk to be hostile,
background checks were run on all participants. The effect of these background checks has
been to select citizens who are neutral or positively predisposed toward the police and rule
out those citizens who would most benefit (Tracy2006).
9. My thanks to an anonymous reviewer for helping craft this formulation of the rela-
tionship between courts and legislatures.
10. Powell (2008, 9)comments how John Marshall was correct:the exercise of the
power of judicial review presents profound moral questions for those who wield it and for
those who are affected byit.
11. See http://gaymarriage.procon.org/view.timeline.php?timelineID=000030.
12. See http://gaymarriage.procon.org/view.timeline.php?timelineID=000030.
13. See http://en.wikipedia.org/wiki/Obergefell_v._Hodges.
14. See http://www.pollingreport.com/civil.htm.
15. See https://hereandnow.wbur.org/2015/04/28/obergefell-v-hodges.
16. Idid a word search on the pdf transcript files supplied on the US Supreme Court
website. Although homosexual was never used, there was a single reference to homosexu-
ality. In prefacing a question, one of the justices noted that not all societies have frowned
on homosexuality.
192 Notes
17. For the majority of Americans the legalization of marriage for same- sex
couples has been a desirable social change, another realization of our nations halting
journey toward greater equality. But any positive social change will have negative con-
sequences. In marking marriage as the socially valued end-state for adults, person who
do not marry are further marginalized. In leaving fewer people out of the marriage-fold,
this positive social change makes it more difficult for unmarried adults to garner soci-
etys regard and respect. For some gays and lesbians, this social change is nothing more
than a victory for a patriarchal institution that bears no historical relevance to them
(Geoghegan2013).
18. See http://www.nytimes.com/2015/04/30/opinion/on-same-sex-marriage-its-too-
late-to-wait-and-see-at-the-supreme-court.html?ref=topics.
19. See Opinion of the Court, Obergefell v.Hodges, 576 US ____(2015):12.
24.See http://www.nytimes.com/2015/06/28/opinion/sunday/frank-bruni-same-sex-mar
riage- s upreme- c ourt- o ur- weddings- o ur- worth.html?&moduleDetail=section- n ews-
2&action=click&contentCollection=Opinion&region=Footer&module=MoreInSectio
n&version=WhatsNext&contentID=WhatsNext&configSection=article&isLoggedIn=
true&pgtype=article&_r=1.
REFERENCES
Aakhus, Mark. 1998. Settlement on the Electronic Frontier: The Management of

Argumentation with Group Decision Support Systems. In Argument in a Time
of Change, edited by James F. Klumpp, 132 137. Annandale, VA: National
Communication Association.
Aakhus, Mark. 2001. Technocratic and Design Stances toward Communicative
Expertise: How GDSS Facilitators Understand Their Work. Journal of Applied
Communication Research 29:341371.
Agne, Robert R. 2007. Reframing Practices in Moral Conflict:Interaction Problems in the
Negotiation Standoff at Waco. Discourse & Society 18 (5):549.
Aldridge, Michelle, and June Luchjenbroers. 2007. Linguistic Manipulations in Legal
Discourse: Framing Questions and Smuggling Information. Journal of Speech,
Language, and the Law 14:85107.
Amossy, Ruth. 2009a. Argumentation in Discourse: A Socio-Discursive Approach to
Arguments. In Argument Cultures: Proceedings of OSSA 09, CD-ROM, edited by
Juho Ritola, 112. Windsor, ON:OSSA.
Amossy, Ruth. 2009b. The New Rhetorics Inheritance. Argumentation and Discourse
Analysis. Argumentation 23:313324.
Amsterdam, Anthony G., and Jerome Bruner. 2000. Minding the Law. Cambridge,
MA:Harvard UniversityPress.
Andersen, Robert, and Tina Fetner. 2008. Cohort Differences in Tolerance of
Homosexuality: Attitudinal Change in Canada and the United States, 19812000.
Public Opinion Quarterly 72:311330.
Andreouli, Eleni, and Parisa Dashtipour. 2014. British Citizenship and the Other:An
Analysis of the Earned Citizenship Discourse. Journal of Community &Applied
Social Psychology 24:100110.
Andrus, Jennifer. 2015. Entextualizing Domestic Violence: Language Ideology and
Violence against Women in the Anglo-American Hearsay Principle. NewYork:Oxford
UniversityPress.
Antaki, Charles, and Ivan Leudar. 2001. Recruiting the Record:Using Opponents Exact
Words in Parliamentary Argumentation. Text 21:467488.
Antaki, Charles, and Sue Widdicombe. 1998. Identity as Achievement and as a Tool. In
Identities in Talk, edited by Charles Antaki and Sue Widdicombe, 114. London:Sage.
Arundale, Robert B. 2006. Face as Relational and Interactional: A Communication
Framework for Research on Face, Facework, and Politeness. Journal of Politeness
Research 2:193216.
Askehave, Inger, and John M. Swales. 2001. Genre Identification and Communicative
Purpose:AProblem and a Possible Solution. Applied Linguistics 22 (2):195212.
193
194 References
Atkinson, J. Maxwell, and John Heritage. 1999. Jeffersons Transcript Notation. In

The Discourse Reader, edited by Adam Jaworski and Nikolas Coupland, 158166.
London:Routledge.
Audi, Robert, and Nicholas Wolterstorff. 1996. Religion in the Public Square:The Place of
Religious Convictions in Political Debate. NewYork:Rowman & Littlefield.
Auer, Peter, and Aldo di Luzio, eds. 1992. The Contextualization of Language.
Philadelphia:John Benjamins.
Austin, John L. 1962/2006. How to Do Things with Words. In The Discourse Reader,
edited by Adam Jaworski and Nikolas Coupland, 5565. NewYork:Routledge.
Baker, Peter. 2004. Unnatural Acts:Discourses of Homosexuality within the House of
Lords Debate on Gay Male Law Reform. Journal of Sociolinguistics 8:88106.
Baker, Peter. 2012. Same-Sex Marriage Support Shows Pace of Social Change Accelerating.
NewYork Times, May11.
Bakhtin, Mikhail. 1986. Speech Genres and Other Late Essays. Translated by V. W.McGee.
Austin, TX:University of TexasPress.
Baldas, Tresa. 2014. Appeals Courts Upholds Michigans Gay Marriage Ban. Detroit Free
Press, http://www.freep.com/story/news/local/michigan/2014/11/06/th-circuit-sex-marriage-
ruling/18610117/.
Bamberg, Michael, and Alexandra Georgakopoulou. 2008. Small Stories as a New
Perspective in Narrative and Identity Analysis. Text & Talk 28 (3):377396.
Becker, Jo. 2014. Forcing the Spring: Inside the Fight for Marriage Equality.
NewYork:PenguinPress.
Bellah, Robert N. 1967. Civil Religion in America. Daedalus 96 (1):121.
Benoit, William. 1989. Attorney Argumentation and Supreme Court Opinions.
Argumentation and Advocacy 26:2238.
Benwell, Bethan, and Elizabeth Stokoe. 2006. Discourse and Identity. Edinburgh:Edinburgh
UniversityPress.
Bergmann, J.R. 1998. Introduction:Morality in Discourse. Research on Language and
Social Interaction 31:279294.
Besnier, N. 1990. Language and Affect. Annual Review of Anthropology 19:419451.
Bhatia, Vijay K. 1993. Analyzing Genre: Language Use in Professional Settings.
London:Longman.
Bhatia, Vijay K. 2010. Interdiscursivity in Professional Communication. Discourse &
Communication 4 (1):3250.
Biber, Douglas, and E. Finegan. 1989. Styles of Stance in English:Lexical and Grammatical
Marking of Evidentiality and Affect. Text 9:93124.
Billig, Michael. 1987. Arguing and Thinking:ARhetorical Approach to Social Psychology.
1st ed. Cambridge, UK:Cambridge UniversityPress.
Billig, Michael, Susan Condor, Derek Edwards, Mike Gane, David Middleton, and Alan.
R.Radley. 1988. Ideological Dilemmas. London:Sage.
Bosworth, Matthew H. 2001. Courts as Catalysts:State Supreme Courts and Public School
Finance. Albany, NY:State University of NewYorkPress.
Bradburn, Norman M., Seymour Sudman, and Brian Wansink. 2004. Asking Questions.
San Francisco:Josey-Bass.
Brennan, Charlie. 2013. Boulder Civil Union Events Adds Layer of Living History with
Former Clerk Rorex to Attend. Daily Camera, April 20.
References 195
Bright, Myron H. 1986. The Power of the Spoken Word:In Defense of Oral Argument.
Iowa Law Review 72:3546.
Broda-Bahm, Ken. 2011. Know Your God Termsand Your Devil Terms.Persuasive Litigator,
http://www.persuasivelitigator.com/2011/03/god-terms-and-your-devil-terms-.html.
Brooks, Peter. 1996. Narrative and Rhetoric in the Law. In Laws Stories:Narratives and
Rhetoric in the Law, edited by Peter Brooks and Paul Gerwitz, 1422. New Haven,
CT:Yale UniversityPress.
Brown, Penelope, and Stephen C.Levinson. 1987. Universals in Language Usage:Politeness
Phenomena. Cambridge, UK:Cambridge UniversityPress.
Burke, Kenneth. 1954. Permanence and Change. Indianapolis:IN:Bobbs-MerrillCo.
Burroughs, Elaine. 2015. Discursive Representations of Illegal Immigration in the
Irish Newsprint Media: The Domination and Multiple Facets of the Control
Argumentation. Discourse & Society 26 (2):165183.
Buttny, Richard. 2004. Talking Problems: Studies of Discursive Construction. Albany,
NY:State University of NewYorkPress.
Buttny, Richard. 2009. Wal-Marts Presentation to the Community:Discursive Practices
in Mitigating Risk, Limiting Public Discussion, and Developing a Relationship.
Discourse & Communication 3 (3):235254.
Buttny, Richard. 2010. Citizen Participation, Metadiscourse, and Accountability:APublic
Hearing on a Zoning Change for Wal- Mart. Journal of Communication 60
(4):636659.
Bybee, Keith J. 2010. All Judges Are Political Except When They Are Not: Acceptable
Hypocrisies and the Rule of Law. Palo Alto, CA:Stanford UniversityPress.
Cameron, Deborah. 2001. Working with Spoken Discourse. London:Sage.
Cameron, Deborah, and Ivan Pavonich. 2014. Working with Written Discourse.
London:Sage.
Cammiss, Steven. 2013. Stories in Law: Providing Space for Oppositionists? In Law
and Language, edited by Michael Freeman and Fiona Smith, 221 245. Oxford,
UK:Oxford University.
Campbell, David C., and Carin Robinson. 2007. Religious Coalitions for and against
Gay Marriage:The Culture War Rages On. In The Politics of Same-Sex Marriage,
edited by Craig A.Rimmerman and Clyde Wilcox, 131154. Chicago:University of
ChicagoPress.
Cantor, Elizabeth. 2006. The Evolution of Understanding Homosexuality within the Fields
of Psychology and Psychiatry. In Same-Sex Marriage:The Legal and Psychological
Evolution in America, edited by Donald J.Cantor, Elizabeth Cantor, James C.Black,
and Campbell D Barrett, 2346. Middletown, CT:Wesleyan UniversityPress.
Caplan, Lincoln. 1987. The Tenth Justice: The Solicitor General and the Rule of Law.
NewYork:Knopf.
Cherlin, Andrew J. 2009. The Marriage Go-Round:The State of Marriage and the Family in
America Today. NewYork:Alfred A.Knopf.
Clayman, Steven E. 1992. Footing in the Achievement of Neutrality:The Case of News
Interview Discourse. In Talk at Work:Interaction in Institutional Settings, edited by P.
Drew and J. Heritage, 163198. Cambridge, UK:Cambridge UniversityPress.
Clayman, Steven E., and John Heritage. 2002a. The News Interview:Journalists and Public
Figures on the Air. Cambridge, UK:Cambridge UniversityPress.
196 References
Clayman, Steven E., and John Heritage. 2002b. Questioning Presidents: Journalistic
Deference and Adversarialness in the Press Conferences of Eisenhower and Reagan.
Journal of Communication 52:749775.
Clift, Rebecca. 2006. Indexing Stance:Reported Speech as an Interactional Evidential.
Journal of Sociolinguistics 10:569595.
Cole, David. 2013. Getting Nearer and Nearer. New York Review of Books, January
10,2729.
Collins, Paul M., Jr. 2004. Friends of the Court: Examining the Influence of Amicus
Curiae Participation in U.S. Supreme Court Litigation. Law & Society Review 38
(4):807832.
Collins, Paul M., Jr. 2007. Lobbyists before the U.S. Supreme Court: Investigating the
Influence of Amicus Curiae Briefs. Political Research Quarterly 60:5570.
Comparato, Scott A. 2003. Amici Curiae and Strategic Behavior in State Supreme Courts.
Westport, CT:Praeger.
Conley, John M., and William M. OBarr. 1990. Rules versus Relationships in Small
Claims Disputes. In Conflict Talk: Sociolinguistic Investigations of Arguments in
Conversations, edited by Allen D.Grimshaw, 178196. Cambridge, UK:Cambridge
UniversityPress.
Conley, John M., and William M.OBarr. 2005. Just Words:Law, Language, and Power. 2nd
ed. Chicago:University of ChicagoPress.
Conover, Pamela J., Donald D. Searing, and Ivor M. Crewe. 2002. The Deliberative
Potential of Political Discussion. British Journal of Political Science 32:2162.
Cooren, Francois. 2003. Textual Agency. Organization 11:373393.
Corona, Isabel. 2011. Confidentiality at Risk: The Interdiscursive Construction of
International Commercial Arbitration. Discourse & Communication 5 (4):355374.
Craig, Robert T. 2006. Communication as a Practice. In Communication As
Perspectives on Theory, edited by Gregory J. Shepherd, Geoffrey St. John, and Ted
Striphas, 3847. Thousand Oaks, CA:Sage.
Craig, Robert T. 2008. Meta-Discourse. In International Encyclopedia of Communication,
edited by Wolf Donsbach, 31073109. Oxford, UK:Wiley-Blackwell.
Craig, Robert T., and Karen Tracy. 1995. Grounded Practical Theory: The Case of
Intellectual Discussion. Communication Theory 5:248272.
Craig, Robert T., and Karen Tracy. 2005. The Issue in Argumentation Practice and
Theory. In The Practice of Argumentation, edited by Frans H.van Eemeren and Peter
Houtlosser, 1128. Amsterdam:John Benjamins.
Craig, Robert T., and Karen Tracy. 2010. Framing Discourse as Argument in Appellate
Courtrooms: Three Cases on Same-Sex Marriage. In The Functions of Argument
and Social Change, edited by Dennis S.Gouran, 4653. Washington, DC:National
Craig, Robert T., and Karen Tracy. 2014. Building Grounded Practical Theory in Applied
Communication Research: Introduction to the Special Issue. Journal of Applied
Communication Research 42 (3):229243.
Culpeper, Jonathan. 1996. Towards an Anatomy of Impoliteness. Journal of Pragmatics
25:349367.
Culpeper, Jonathan. 2011. Impoliteness:Using and Understanding the Language of Offense.
Cambridge, UK:Cambridge UniversityPress.
References 197
Curtis, Michael Kent. 2008. The Fourteenth Amendment: Recalling What the Court
Forgot. Drake Law Review 56:911972.
Dahl, Robert A. 1961. Who Governs? Democracy and Power in an American City. New
Haven, CT:Yale UniversityPress.
Danet, B., and B. Bogoch. 1980. Fixed Fight or Free-for-All? An Empirical Study of
Combativeness in the Adversary System of Justice. British Journal of Law and
Society 7:3670.
Deeb, Hadi Nicholas. 2013a. Boiling Down to the M-Word at the California Supreme
Court. Journal of Linguistic Anthropology 23 (1):4164.
Deeb, Hadi Nicholas. 2013b. Liberal Jurisprudence and the Literal Grammar of
Marriage Equalit(y)(ies). Law, Culture and the Humanities Online. doi: 10.1177/
1743872113476937.
Defense of Marriage Act, July 9, 1996, Committee on the Judiciary (Report no.104-664);
104 Congress, 2d Session.
De Fina, Anna, Deborah Schiffrin, and Michael Bamberg. 2006. Editors Introduction.
In Discourse and Identity, edited by Anna de Fina, Deborah Schiffrin, and Michael
Bamberg, 123. Cambridge, UK:Cambridge UniversityPress.
Delgadillo, Erica. 2015. Defining Spheres of Influence: The Intersection of Spheres
of Argument and Amicus Curiae Briefs in the State Court Debate over Same Sex
Marriage. Communication Department, Unpublished Dissertation, University of
Colorado, Boulder,CO.
Delgado, Richard. 19881989. Storytelling for Oppositionists and Others: A Plea for
Narrative. Michigan Law Review 87:24112441.
Dickens, Milton, and Ruth E. Schwartz. 1971. Oral Argument before the Supreme
Court: Marshall v. Davis in the School Segregation Cases. Quarterly Journal of
Speech 57:3242.
Dickson, Del. 2001. The Supreme Court Conferences (19401985). New York: Oxford
UniversityPress.
Drew, Paul. 1992. Contested Evidence in Courtroom Cross-Examination:The Case of a
Trial for Rape. In Talk at Work: Interaction in Institutional Settings, edited by Paul
Drew and John Heritage, 470520. Cambridge, UK:Cambridge UniversityPress.
Drew, Paul, and John Heritage. 1992. Analyzing Talk at Work:An Introduction. In Talk
at Work:Interaction in Institutional Settings, edited by Paul Drew and John Heritage,
165. Cambridge, UK:Cambridge UniversityPress.
DuBois, John. 2007. The Stance Triangle. In Stancetaking in Discourse: Subjectivity,
Evaluation, Interaction, edited by Robert Englebretson, 139182. Amsterdam: John
Benjamins.
Duranti, Alesandro, and Charles Goodwin, eds. 1992. Rethinking Context:Language as an
Interactive Phenomenon. Cambridge, UK:Cambridge UniversityPress.
Duvall, Michael. 2007. When Is Oral Argument Important? AJudicial Clerks View of the
Debate. Journal of Appellate Practices and Processes 9:121130.
Eades, Diana. 2000. I Dont Think Its an Answer to the Question:Silencing Aboriginal
Witnesses in Court. Language in Society 29:161195.
Ehrlich, Susan. 2001. Representing Rape:Language and Sexual Consent. London:Routledge.
Ehrlich, Susan. 2002. (Re)Contextualizing Complainants Accounts of Sexual Assault.
Forensic Linguistics 9:193212.
198 References
Englebretson, Robert. 2007. Stancetaking in Discourse:An Introduction. In Stancetaking

in Discourse: Subjectivity, Evaluation, Interaction, edited by Robert Englebretson,
126. Amsterdam:John Benajmins.
Escudero, Laura Martnez. 2011. A Corpus-Based Insight into Genre:The Case of WIPO
Domain Name Arbitration Decisions. Discourse & Communication 5 (4):375392.
Eskridge, William N., Jr. 2008. Dishonorable Passions. NewYork:Viking.
Eskridge, William N., Jr., and Robert E.Levy. 2003. Texas v.Lawrence, Brief of the Cato
Institute. http://object.cato.org/sites/cato.org/files/pubs/pdf/lawrencevtexas.pdf.
Feldman, Noah. 2005. Divided by God. NewYork:Farrar, Straus, and Giroux.
Fitch, K. 1998. Speaking Relationally: Culture, Communication, and Interpersonal
Connection. NewYork:Guilford.
Fitch, Kristine L. 2003. Cultural Persuadables. Communication Theory 13 (1):100123.
Fitzgerald, Richard, and William Housley. 2002. Identity, Categorization and Sequential
Organization:The Sequential and Categorical Flow of Identity in a Radio Phone-In.
Discourse & Society 13:579602.
Foucault, Michel. 1973. The Order of Things: An Archeology of the Human Sciences.
NewYork:Vintage.
Francis, David, and Stephen Hester. 2004. An Invitation to Ethnomethodology:Language,
Society and Interaction. London:Sage.
Franck, Mathew J. 2013. Same-Sex Marriage and Social Change:Exceeding the Speed of
Thought. Public Discourse, January4.
Freed, Alice F., and Susan Ehrlich, eds. 2010. Why Do You Ask?: The Functions of
Questions in Institutional Discourse. Oxford, UK:Oxford UniversityPress.
Frey, Andrew L. 1999. Preparing and Delivering Oral Argument. Mayer Browns Appellate.
net, http://www.appellate.net/includes/print.asp?dir=articles&file-prepdel1799.asp&
contentarea.
Gal, Susan. 2005. Language Ideologies Compared:Metaphors of Public/Private. Journal
of Linguistic Anthropology 15 (1):2337.
Garces-Conejos Blitvich, Pilar. 2009. Impoliteness and Identity in the American News
Media: The Culture Wars. Journal of Politeness Research. Language, Behaviour,
Culture 5 (2):273303.
Garner, Bryan A. 2009. The Winning Oral Argument:Enduring Principles with Supporting
Comments from the Literature. St. Paul, MN:Thomson/West.
Garzone, Giuliana E. 2015. Genre Analysis. In The International Encyclopedia of
Language and Social Interaction, edited by Karen Tracy, Cornelia Ilie, and Todd
L.Sandel, 677693. Boston:Wiley-Blackwell.
Gaskins, Richard H. 1992. Burdens of Proof in Modern Discourse. New Haven, CT:Yale
UniversityPress.
Gastil, John, Pierre E. Deess, Philip Weiser, and Cindy Simmons. 2010. The Jury and
Democracy: How Jury Deliberation Promotes Civic Engagement and Political
Participation. NewYork:Oxford UniversityPress.
Gee, James P. 1999. An Introduction to Discourse Analysis: Theory and Method.
London:Routledge.
Gee, James Paul. 2015. Discourse, Small d, Big D. In International Encyclopedia of
L.Sandel, 418422. Boston:Wiley-Blackwell.
References 199
Geoghegan, Tom. 2013. The Gay People against Gay Marriage. BBC New Magazine, http://
www.bbc.com/news/magazine-22758434.
Gershon, Ilana. 2011. Critical Review Essay:Studying Cultural Pluralism in Courts versus
Legislatures. PoLAR:Political and Legal Anthropological Review 34 (1):155174.
Gertsmann, Evan. 2008. Same-Sex Marriage and the Constitution. 2nd ed. Cambridge,
UK:Cambridge UniversityPress.
Gilbert, G. Nigel, and Michael Mulkay. 1984. Opening Pandoras Box: A Sociological
Analysis of Scientists Discourse. Cambridge, UK:Cambridge UniversityPress.
Goffman, Erving. 1955. On Face- work: An Analysis of Ritual Elements of Social
Interaction. Psychiatry: Journal for the Study of Interpersonal Processes 18
(3):213231.
Goffman, Erving. 1967. Interaction Ritual: Essays on Face-to-Face Behavior. Chicago:
Aldine.
Goffman, Erving. 1974. Frame Analysis: An Essay on the Organization of Experience.
NewYork:Harper andRow.
Goffman, Erving. 1981. Forms of Talk. Philadelphia:University of PennsylvaniaPress.
Goldstein, Anne B. 1997. History, Homosexuality, and Political Values:Searching for the
Hidden Determinants of Bowers v.Hardwick. In Sex, Morality, and the Law, edited
by Lori Gruen and George Panichas, 3243. NewYork:Routledge.
Goodnight, G. Thomas. 1999. The Personal, Technical, and Public Spheres of
Argument:ASpeculative Inquiry into the Art of Public Deliberation. In Contemporary
Rhetorical Theory:AReader, edited by John L.Lucaites, Celeste M.Condit, and Sally
Caudill, 251264. NewYork:GuilfordPress.
Goodwin, Jean. 2005. Designing Premises. In Argumentation in Practice, edited by Frans
H.van Eemeren and Peter Houtlosser, 4352. Amsterdam:John Benjamins.
Gordon, Cynthia. 2015. Discourse Analysis. In International Encyclopedia of Language
and Social Interaction, edited by Karen Tracy, Cornelia Ilie, and Todd L.Sandel, 383
397. Boston:Wiley-Blackwell.
Grad, Hector, and Luisa Martin Rojo. 2008. Identities in Discourse:An Integrative View.
In Analysing Identities in Discourse, edited by Rosana Doln and Jlia Todoli, 328.
Amsterdam:John Benjamins.
Grice, H.P. 1975. Logic in Conversation. In Syntax and Semantics, Vol. 3:Speech Acts,
edited by P. Cole and J. Morgan, 4158. NewYork:AcademicPress.
Grisci, Augusto, and Clotide Pontecorvo. 2004. The Organization of Questions and
Answers in the Thematic Phases of Hostile Examination:Turn-by-Turn Manipulation
of Meaning. Journal of Pragmatics 36:965995.
Guttman, Amy. 2006. Foreword:Legislatures in the Constitutional State. In The Least
Examined Branch: The Role of Legislatures in the Constitutional State, edited by
Richard W.Bauman and Tsvi Kahana, xxiii. NewYork:Cambridge UniversityPress.
Haiman, Franklyn S. 2003. Religious Expression and the American Constitution. East
Lansing, MI:Michigan State UniversityPress.
Hansford, Thomas G., and James F.Spriggs II. 2006. The Politics of Precedent on the U.S.
Supreme Court. Princeton:Princeton UniversityPress.
Harr, Rom. 1979. Social Being. Oxford, UK:Blackwell.
Harr, Rom. 1999. Positioning Theory: Moral Context of International Action. Oxford,
UK:Blackwell.
200 References
Harr, Rom, and Fathali Moghaddam. 2003. Introduction: The Self and Others in
Traditional Psychology and Positioning Theory. In The Self and Others: Positioning
Individuals and Groups in Personal, Political, and Cultural Contexts, edited by Rom
Harr and Fathali Moghaddam, 111. Westport, CT: Praeger.
Harr, Rom, and Nikki Slocum. 2003. Disputes as Complex Social Events:On the Uses
of Positioning Theory. In The Self and Others: Positioning Individuals and Groups
in Personal, Political, and Cultural Contexts, edited by Rom Harr and Fathali
Moghaddam, 123136. Westport, CT:Praeger.
Hart, Roderick P. 1977. The Political Pulpit. West Lafayette, IN:Purdue UniversityPress.
Haspel, Kathleen, and Karen Tracy. 2007. Marking and Shifting Lines in the
Sand: Discursive Moves of Ordinary Democracy. In The Prettier Doll: Rhetoric,
Discourse, and Ordinary Democracy, edited by Karen Tracy, James McDaniel, and
Bruce Gronbeck, 142175. Tuscaloosa, AL:University of AlabamaPress.
Haupt, Claudia E. 2012. Religion- State Relations in the United States and Germany.
Hearing of Subcommittee on the Constitution of the U.S. House Committee on the
Judiciary. 1996. HR 3396 Defense of Marriage Act. May15.
Hearing of U.S. Senate Committee on the Judiciary. 2011. S598, the Respect for Marriage
Act:Assessing the Impact of DOMA on American Families. July 20. J-112-35.
Heffer, Chris. 2005. The Language of Jury Trial: A Corpus-Aided Analysis of Legal-Lay
Discourse. Bakingstoke:Palgrave Macmillan.
Heffer, Chris. 2010. Constructing Crime Stories in Court. In The Routledge Handbook
of Forensic Linguistics, edited by Alison Johnson and Malcolm Coulthard, 199217.
London:Routledge.
Hester, Stephen, and Peter Eglin. 1992. A Sociology of Crime. London:Routledge.
Hester, Stephen, and Peter Eglin, eds. 1997. Culture in Action: Studies in Membership
Categorization Analysis. Lanham, MD:University Press of America.
Hewitt, John P., and Randall Stokes. 1975. Disclaimers. American Sociological Review
40:111.
Housley, William, and Richard Fitzgerald. 2015. Introduction to Membership
Categorisation Analysis. In Advances in Membership Categorisation Analysis, edited
by Richard Fitzgerald and William Housley, 122. London:Sage.
Hughes, Jessica M. F. 2015. Changing Conversations around Autism: A Critical
Action Implicative Discourse Analysis of U.S. Neurodiversity Advocacy Online.
Communication Department, Unpublished Dissertation, University of Colorado,
Boulder,CO.
Hulsether, Mark. 2007. Religion, Culture, and Politics in the Twentieth Century United
States. NewYork:Columbia UniversityPress.
Hutchby, Ian. 2008. Participants Orientations to Interruptions, Rudeness and Other
Impolite Acts in Talk- in-
Interaction. Journal of Politeness Research: Language,
Behaviour, Culture 4 (2):221241.
Hyland, Ken, and Polly Tse. 2009. The Leading Journal in Its Field: Evaluation in
Journal Descriptions. Discourse Studies 11 (6):703720.
Ilie, Cornelia. 2015. Parliamentary Discourse. In The International Encyclopedia of
Sandel, 11131128. Boston:Wiley-Blackwell.
References 201
Jaffe, Alexandra. 2009. The Sociolinguistics of Stance. In Stance: Sociolinguistics

Perspectives, edited by Alexandra Jaffe, 328. Oxford, UK:Oxford UniversityPress.
James, Deborah, and Sandra Clarke. 1993. Women, Men and Interruptions: A Critical
Review. In Gender and Conversational Interaction, edited by D. Tannen, 231280.
Oxford, UK: Oxford University Press.
Jaworski, Adam, and Nikolas Coupland, eds. 1999. The Discourse Reader. London: Routledge.
Jayyusi, Lena. 1991. Values and Moral Judgement: Communicative Praxis as Moral
Order. In Ethnomethodology and the Human Sciences, edited by Graham Button,
Jayyusi, Lena. 1993. Premeditation and Happenstance: The Social Construction of
Intention, Action, and Knowledge. Human Studies 16 (4):435454.
Johnson, Timothy R. 2004. Oral Arguments and Decision Making on the United States
Supreme Court. Albany, NY:State University of NewYork.
Jones, Lawrence. 2009. Thousands Rally against Gay Civil Unions in Hawaii. The Christian
Post, http://www.christianpost.com/news/thousands-rally-against-gay-civil-unions-in-
hawaii-37126/.
Kaehler, Lorenz. 2013. First- Person Perspectives in Legal Decisions. In Law and
Language, edited by Michael Freeman and Fiona Smith, 533556. Oxford, UK:Oxford
University.
KhosraviNik, Majid. 2005. The Representation of Refugees, Asylum Seekers and
Immigrants in British Newspapers: A Critical Discourse Analysis. Journal of
Language & Politics 9 (1):128.
Kienpointner, Manfred. 1997. Varieties of Rudeness: Types and Functions of Impolite
Utterances. Functions of Language 4:251287.
Kitzinger, Celia. 2005a. Heteronormativity in Action: Reproducing the Heterosexual
Nuclear Family in After-Hour Medical Calls. Social Problems 52:477498.
Kitzinger, Celia. 2005b. Speaking as a Heterosexual:(How) Does Sexuality Matter for
Talk-in-Interaction? Research on Language and Social Interaction 38:221265.
Klarman, Michael J. 2013. From the Closet to the Altar:Courts, Backlash, and the Struggle
for Same-Sex Marriage. NewYork:Oxford UniversityPress.
Kock, Christian. 2009a. Arguing for Different Types of Speech Acts. In Argument
Cultures:Proceedings of OSSA 09, CD-ROM, edited by Juho Ritola, 111. Windsor,
ON:OSSA.
Kock, Christian. 2009b. Constructive Controversy: Rhetoric as Dissensus- Oriented
Discourse. Cogency 1 (1):89111.
Labov, W., and J. Waletsky. 1967/1997. Narrative Analysis: Oral Versions of Personal
Experience. Journal of Narrative and Life History 7:338.
Laidman, Dan. 2010. Constitutional LawFree SpeechNinth Circuit Upholds City
Councils Ejection of Audience Member Based on Nazi Salute. UCLA Law Review
Discourse 57:5163.
Lakoff, Robin Tolmach. 1973. The Logic of Politeness:Or Minding Your Ps and Qs.
In Papers from the Ninth Regional Meeting of the Chicago Linguistics Society, edited
by Claudia W. Corum, Thoma Cedric Smith- Stark, and Ann Weiser, 292 305.
Chicago:Chicago Linguistics Society.
Lakoff, Robin Tolmach. 1989. The Limits of Politeness: Therapeutic and Courtroom
Discourse. Multilingua 8 (23):101129.
202 References
Langer, Laura. 2002. Judicial Review in State Supreme Courts: A Comparative Study.
Albany, NY:State University of NewYorkPress.
Leech, Geoffrey N. 1983. Principles of Pragmatics. London:Longman.
Leighter, Jay L., and Laura Black. 2010. Im Just Raising the Question:Terms for Talk
and Practical Metadiscursive Arguments in Public Meetings. Western Journal of
Communication 74 (5):547569.
Leiser, Burton M. 1997. Homosexuality and the Unnaturalness Argument. In
Sex, Morality, and the Law, edited by Lori Gruen and George Panichas, 4551.
NewYork:Routledge.
Lemke, Jay L. 2008. Identity, Development, and Desire:Critical Questions. In Identity
Trouble:Critical Discourse and Contested Identities, edited by Carmen Rosa Caldas-
Coulthard and Rick Iedema, 1742. NewYork:Palgrave MacMillan.
Leonard, Arthur C., and Patricia A Cain. 2005. Sexuality Law. Durham, NC: North
Carolina AcademicPress.
Lerner, Gene H., and Celia Kitzinger. 2007. Introduction: Person- Reference in
Conversation Analytic Research. Discourse Studies 9:427432.
Levy, Leonard W. 1994. The Establishment Clause. 2nd ed. Chapel Hill, NC:University of
North CarolinaPress.
Liptak, Adam. 2011. A Tipping Point for Gay Marriage? New York Times, http://www.
nytimes.com?2011/05/01/weekinreview/01gay.html? April30.
Maltzman, Forrest, James F.Spriggs II, and Paul J.Wahlbeck. 2000. Crafting Law on the
Supreme Court. NewYork:Cambridge UniversityPress.
Martin, Judith N., Robert L. Krisek, Thomas L. Nakayama, and Lisa Bradford. 1999.
What Do White People Want to Be Called? In Whiteness: The Communication
of Social Identity, edited by Thomas K. Nakayama and Judith N. Martin, 2750.
Thousand Oaks, CA:Sage.
Martin, J.R. 1984. Language, Register and Genre. In Children Writing:Reader, edited by
F. Christie, 2129. Geelong Victoria, Australia:Deakin UniversityPress.
Martineau, Robert J. 1986. The Value of Appellate Oral Argument. Iowa Law Review
72:133.
Matoesian, Gregory M. 2001. Law and the Language of Identity:Discourse in the William
Kennedy Smith Rape Trial. Oxford, UK:Oxford UniversityPress.
McCall, George J., and Jerry L.Simmons. 1966. Identities and Interaction:An Examination
of Human Associations in Everyday Life. NewYork:FreePress.
Meacham, Jon. 2006. American Gospel:God, the Founding Fathers, and the Making of a
Nation. NewYork:RandomHouse.
Mertz, Elizabeth. 1998. Linguistic Ideology and Praxis in U.S. Law School Classrooms.
In Language Ideologies:Practice and Theory, edited by Bambi Schieffelin, Kathryn.
A.Woolard, and Paul V.Kroskrity, 149162. NewYork:Oxford UniversityPress.
Mertz, Elizabeth. 2007. The Language of Law School:Learning to Think Like a Lawyer.
NewYork:Oxford UniversityPress.
Miller, Carolyn R. 1984. Genre as Social Action. Quarterly Journal of Speech 70:
151167.
Mishler, Elliot. 1986. Research Interviewing: Context and Narrative. Cambridge,
MA:Harvard UniversityPress.
Mohr, Richard D. 1997. Gay Basics. In Sex, Morality, and the Law, edited by Lori Gruen
and George Panichas, 5263. NewYork:Routledge.
References 203
Morello, Carol. 2005. Singles Sex No Longer a VA Crime:Defense in Herpes-Based Suit

Leaned on 19th-Century Law. Washington Post, January5.
Morson, G.S., and C. Emerson. 1990. Mikhail Bakhtin:Creation of a Prosaic. Palo Alto,
CA:Stanford UniversityPress.
Mucciaroni, Gary. 2008. Same Sex, Different Politics:Success and Failures in the Struggles
over Gay Rights. Chicago:University of ChicagoPress.
Murdoch, Joyce, and Deb Price. 2001. Courting Justice: Gay Men and Lesbians v. the
Supreme Court. NewYork:BasicBooks.
Mutz, Diana C. 2006. Hearing the Other Side:Deliberative versus Participatory Democracy.
NewYork:Cambridge UniversityPress.
Newport, Frank. 2009. State of the States: Importance of Religion. Gallup Poll, http://
www.gallup.com/poll/114022/State-States-Importance-Religion.aspx.
Ng, Kwai Hang. 2009. If ILie, ITell You, May Heaven and Earth Destroy Me:Language
and Legal Consciousness in Hong Kong Bilingual Common Law. Law & Society
Review 43 (2):369404.
Ochs, E. 1993. Constructing Social Identity: A Language Socialization Perspective.
Research on Language and Social Interaction 26:287306.
Ochs, Elinor, and Bambi Schieffelin. 1989. Language Has a Heart. Text 9:725.
Olshtain, Elite. 1989. Apologies across Languages. In Cross-Cultural Pragmatics:Requests
and Apologies, edited by Shoshana Blum-Kulka, Juliene House, and Gabriele Kaspar,
155173. Norwood, NJ:Ablex.
Olson, Katherine M., and G. Thomas Goodnight. 2004. Ingenium- Speaking in
Community: The Case of the Prince William County Zone Hearings on Disneys
America. In New Approaches to Rhetoric, edited by Patricia A.Sullivan and Steven
R.Goldzwig, 3160. Thousand Oaks, CA:Sage.
Parodi, Giovanni. 2010. The Rhetorical Organization of the Textbook Genre across
Disciplines:AColony-in-Loops? Discourse Studies 12 (2):195222.
Parrott, J. Scott. 1996. Protecting Future Claimants versus Getting Away with Murder:
Rhetoric and Frame Negotiation in the Congressional Reaction to the Manville
Bankruptcy. PhDiss, University of Chicago.
Pascual, Esther. 2006. Questions in Legal Monologues: Fictive Interaction as
Argumentative Strategy in a Murder Trial. Text & Talk 26:382402.
Penman, Robyn. 1990. Facework and Politeness:Multiple Goals in Courtroom Discourse.
Journal of Language and Social Psychology 9:1538.
Philips, Susan U. 1998. Ideology in the Language of Judges: How Judges Practice Law,
Politics, and Courtroom Control. NewYork:Oxford UniversityPress.
Phillips, Jame C., and Edward L.Carter. 2010. Source of Information or Dog and Pony
Show? Judicial Information Seeking During U.S Supreme Court Oral Argument,
19631965& 20042009. Santa Clara Law Review 50 (1):79181.
Pierceson, Jason. 2013. Same-Sex Marriage in the United States:The Road to the Supreme
Court. Lanham, MD:Rowman & Littlefield.
Pinello, Daniel R. 2003. Gay Rights and American Law. New York: Cambridge
UniversityPress.
Pomerantz, Anita. 1984. Agreeing and Disagreeing with Assessments: Some Features
of Preferred/Dispreferred Turn Shapes. In Structures of Social Action: Studies in
Conversation Analysis, edited by J. Maxwell Atkinson and John Heritage, 57101.
204 References
Pomerantz, Anita. 1986. Extreme Case Formulations: A Way of Legitimizing Claims.

Human Studies 9:219229.
Pomerantz, Anita. 1989. Constructing Skepticism: Four Devices Used to Engender the
Audiences Skepticism. Research on Language and Social Interaction 22 (1):293313.
Potter, Jonathan, and Alexa Hepburn. 2007. Chairing Democracy:Psychology, Time, and
Negotiating the Institution. In The Prettier Doll:Rhetoric, Discourse and Ordinary
Democracy, edited by Karen Tracy, James P.McDaniel, and Bruce E.Gronbeck, 176
202. Tuscaloosa, AL:University of AlabamaPress.
Powell, H. Jefferson. 2008. Constitutional Conscience: The Moral Dimension of Judicial
Review. Chicago:University of ChicagoPress.
Re, Edward D. 1975. Appellate Opinion Writing. In Seminar for Federal Appellate Judges,
Available at http://www2.fjc.gov/sites/default/files/2012/AppellOp.pdf.
Re, Edward D., and Joseph R.Re. 1999. Brief Writing and Oral Argument. 8th ed:Oceana
Publications,Inc.
Richards, David A.J. 2009. The Sodomy Cases:Bowers v.Hardwick and Lawrence v.Texas.
Lawrence, KS:University of Kansas.
Riessman, Catherine Kohler. 2008. Narrative Methods for the Human Sciences. Los
Angeles:Sage.
Robles, Jessica S. 2015. Morality in Discourse. In International Encyclopedia of Language
and Social Interaction, edited by Karen Tracy, Cornelia Ilie, and Todd Sandel, 1032
1037. Boston:John Wiley &Sons.
Roca-Cuberes, Carles. 2008. Membership Categorization and Professional Insanity
Ascription. Discourse Studies 10:543570.
Rosen, Jeffrey. 2007. The Supreme Court: The Personalities and Rivalries That Defined
America. NewYork:Holt.
Rosenberg, Gerald N. 2008. The Hollow Hope. 2nd ed. Chicago:University of ChicagoPress.
Sacks, Harvey. 1992. Lectures on Conversation. Vol. 1. Cambridge, MA:Blackwell.
Sandel, Michael J. 1990. Freedom of Conscience or Freedom of Choice. In Articles
of Faith, Articles of Peace: The Religious Liberty Clauses and the American Public
Philosophy, edited by James Davidson Hunter and Os Guinness, 7492. Washington,
DC:The Brookings Institution.
Sanders, Robert E. 1997. An Impersonal Basis for Shared Interpretations of Messages
in Context. In Context and Communication Behavior, edited by J. Owens, 229250.
Reno, NV:ContextPress.
Savage, David G. 2013. Public Opinion Could Sway Supreme Courts Ruling on Gay
Marriage. LA Times, March1.
Scalia, Antonin, and Bryan A.Garner. 2008. Making Your Case:The Art of Persuading
Judges. St Paul, MN:Thomson/West.
Schegloff, Emanuel A. 1992. In Another Context. In Rethinking Context:Language as
an Interactive Phenomenon, edited by Alessandro Duranti and Charles Goodwin, 191
Schegloff, Emanuel A. 1996. Some Practices for Referring to Persons in Talk- in-
Interaction: A Partial Sketch of a Systematics. In Studies in Anaphora, edited by
Barbara Fox, 437485. Amsterdam:John Benjamins.
Schegloff, Emanuel A. 2000. Overlapping Talk and the Organization of Turn-Taking for
Conversation. Language in Society 29:163.
References 205
Schegloff, Emanuel A. 2007. A Tutorial on Membership Categorization. Journal of

Pragmatics 39 (3):462482.
Schiappi, Edward. 2003. Defining Reality: Definitions and the Politics of Meaning.
Carbondale, IL:Southern Illinois University.
Schiappi, Edward. 2012. Defining Marriage in California: An Analysis of Public and
Technical Argument. Argumentation & Advocacy 48 (4):216221.
Schiffrin, Deborah. 1987. Discourse Markers. Cambridge, UK: Cambridge University
Press.
Schiffrin, Deborah. 2006. From Linguistic Reference to Social Reality. In Discourse and
Identity, edited by Anna De Fina, Deborah Schiffrin, and Michael Bamberg, 103131.
Schudson, Michael. 2006. The Trouble with Experts and Why Democracies Need
Them. Theory and Society 35:491506.
Schuetz, Jancie. 2007. Communicating the Law:Lessons from Landmark Legal Cases. Long
Grove, IL:WavelandPress.
Segal, Jeffrey A., and Harold J.Spaeth. 1996. The Influence of Stare Decisis on the Votes
of United States Supreme Court Justices. American Journal of Political Science 40
(4):9711003.
Segal, Jeffrey A., and Harold J.Spaeth. 2002. The Supreme Court and the Attitudinal Model
Revisited. NewYork:Cambridge UniversityPress.
Shullman, Sara Levien. 2004. The Illusion of Devils Advocacy:How the Justices of the
Supreme Court Foreshadow Their Decisions during Oral Argument. The Journal of
Appellate Practice and Process 6:271293.
Shuy, Roger W. 1993. Language Crimes:The Use and Abuse of Language Evidence on the
Courtroom. Malden, MA:Basil Blackwell.
Sidnell, Jack. 2010. The Design and Positioning of Questions in Inquiry Testimony. In
Why Do You Ask? The Function of Questions in Institutional Discourse, edited by
Susan Ehrlich and Alice Freed, 2041. Oxford, UK:Oxford UniversityPress.
Silverstein, Helena. 2013. Introduction to Symposium on Keith J.Bybees All Judges Are
PoliticalExcept When They Are Not. Law & Social Inquiry 38 (1):190195.
Smirnova, Alla V. 2009. Reported Speech as an Element of Argumentative Newspaper
Discourse. Discourse & Communication 3 (1):79103.
Spencer-Oatey, Helen. 2000. Rapport Management: A Framework for Analysis. In
Culturally Speaking:Managing Rapport through Talk across Cultures, edited by Helen
Spencer-Oatey, 1146. London:Continuum.
Stetson, Jeff. 1999. Victim, Offender and Witness in the Emplotment of News Stories. In
Media Studies: Ethnomethodological Approaches, edited by Paul L. Jalbert, 77110.
Lanham, MD:University Press of America.
Stivers, Tanya, Lorenza Mondada, and Jakob Steensig, eds. 2011. The Morality of
Knowledge in Conversation. Cambridge, UK:Cambridge UniversityPress.
Stronks, Julia K. 2002. Law, Religion, and Public Policy. Lanham, MD:LexingtonBooks.
Sullivan, Winifred F. 2005. The Impossibility of Religious Freedom. Princeton, NJ:Princeton
UniversityPress.
Sunstein, Cass R., David Schkade, Lisa M.Ellman, and Andres Sawicki. 2006. Are Judges
Political? An Empirical Analysis of the Federal Judiciary:Washington, DC:Brookings
InstitutionPress.
206 References
Swales, John M. 1990. Genre Analysis: English in Academic and Research Settings.
Cambridge, UK: Cambridge UniversityPress.
Sypnowich, Christine. 2014. Law and Ideology. In The Stanford Encyclopedia of
Philosophy, edited by Edward N. Zalta: http://plato.stanford.edu/archives/win2014/
entries/law-ideology/.
Tannen, Deborah. 1989. Talking Voices:Repetition, Dialogue, and Imagery in Conversational
Discourse. NewYork:Cambridge UniversityPress.
Tanno, D. 1997. Names, Narratives, and the Evolution of Ethnic Identity. In Our
Voices:Essays in Culture, Ethnicity, and Communication, edited by Alberto Gonzalez,
Marsha Houston, and Victoria Chen, 2832. Los Angles:Roxbury.
Taylor, Charles. 1990. Religion in a Free Society. In Articles of Faith, Articles of Peace:The
Religious Liberty Clauses and the American Public Philosophy, edited by James Davidson
Hunter and Os Guinness, 93113. Washington DC:The Brookings Institution.
Thiemann, Ronald F. 1996. Religion in Public Life:ADilemma for Democracy. Washington,
DC:Georgetown UniversityPress.
Toulmin, Stephen. 1958. The Uses of Argument. London:Cambridge UniversityPress.
Tracy, Karen. 1997. Colloquium:Dilemmas of Academic Discourse. Norwood, NJ:Ablex.
Tracy, Karen. 1998. Analyzing Context:Framing the Discussion. Research on Language
and Social Interaction 31 (1):128.
Tracy, Karen. 2002. Everyday Talk:Building and Reflecting Identities. NewYork:Guilford.
Tracy, Karen. 2005. Reconstructing Communicative Practices: Action- Implicative
Discourse Analysis. In Handbook of Language and Social Interaction, edited by
Kristine Fitch and Robert Sanders, 301319. Mahwah, NJ:Lawrence Erlbaum.
Tracy, Karen. 2006. How Citizen Academies Transform Cops into Real People: The
Communicative Process and a Dilemma. Paper read at International Communication
Association, Dresden, Germany.
Tracy, Karen. 2007. The Discourse of Crisis in Public Meetings:Case Study of a School Boards
Multimillion Dollar Error. Journal of Applied Communication Research 35:418441.
Tracy, Karen. 2008. Reasonable Hostility:Situation-Appropriate Face Attack. Journal
of Politeness Research:Language, Behaviour, Culture 4:169191.
Tracy, Karen. 2009. How Questioning Constructs Appellate Judge Identities:The Case of
a Hearing about Same-Sex Marriage. Discourse Studies 11:199221.
Tracy, Karen. 2010. Challenges of Ordinary Democracy:ACase Study in Deliberation and
Dissent. University Park, PA:Pennsylvania State UniversityPress.
Tracy, Karen. 2011a. A Facework System of Minimal Politeness:Oral Argument in Appellate
Court. Journal of Politeness Research:Language, Behaviour, Culture 7 (1):123145.
Tracy, Karen. 2011b. Identity-Work in Appellate Oral Argument: Ideological Identities
within a Professional One. In Constructing Identities at Work, edited by J. Angouri
and M. Marra, 179203. Brunel, UK:Palgrave.
Tracy, Karen. 2011c. Whats in a Name? Stance Markers in Oral Argument about Marriage
Laws. Discourse & Communication 5 (1):6588.
Tracy, Karen. 2011d. Reasonable Hostility:Its Usefulness and Limitation as a Norm for
Public Hearings. Informal Logic 31 (3):171190.
Tracy, Karen. 2012a. Dogmatic Dialogue: Essential Qualities of Judicial Opinion-
Writing. In (Re)Presentations and Dialogue, edited by F. Cooren and A. Letourneau,
3758. Amsterdam:John Benjamins.
References 207
Tracy, Karen. 2012b. Public Hearings about Same- Sex Marriage: How the Context
Makes An Argument. Qualitative Communication Research 1 (1):83107.
Tracy, Karen. 2014. Rhetorical Citizenship in Public Meetings:The Character of Religious
Expression in American Discourse. In Rhetorical Citizenship: Purposes, Practices,
and Perspectives, edited by Christian E.J. Kock and Lisa Villadsen, 149165. Leiden,
The Netherlands:Leiden UniversityPress.
Tracy, Karen, and Robert T. Craig. 2010. Studying Interaction in Order to Cultivate
Practice:Action-Implicative Discourse Analysis. In New Adventures in Language and
Interaction, edited by Jurgen Streeck, 145166. Amsterdam:John Benjamins.
Tracy, Karen, and Erica Delgadillo. 2013. Troubling the Legal-Lay Distinction:Litigant
Briefs, Oral Argument, and a Public Hearing about Same-Sex Marriage. In Legal-
Lay Communication:Textual Travels in the Law, edited by Christopher Heffer, Frances
Rock, and John Conley, 226244. Oxford, UK:Oxford UniversityPress.
Tracy, Karen, and Margaret Durfy. 2007. Speaking Out in Public:Citizen Participation
in Contentious School Board Meetings. Discourse & Communication 1 (2):
223249.
Tracy, Karen, and Jessica M.F. Hughes. 2014. Democracy-Appealing Partisanship:ASituated
Ideal of Citizenship. Journal of Applied Communication Research 42 (3):307324.
Tracy, Karen, and Julie M.Naughton. 2000. Institutional Identity-Work:ABetter Lens.
In Small Talk, edited by J. Coupland, 6283. Harlow, England:Pearson.
Tracy, Karen, and Russell M.Parks. 2012. Tough Questioning as Enactment of Ideology
in Judicial Conduct: Marriage Law Appeals in Seven US Courts. International
Journal of Speech Language and the Law 19 (1):125.
Tracy, Karen, and Russell M.Parks. 2013. Managing the Problematic Relationship between
God and Government: A Discourse Strategy Used in Legislative Hearings about
Same-Sex Marriage. Paper presented at the Annual Meeting of the International
Communication Association. London.
Tracy, Karen, and Jessica S. Robles. 2009. Question, Questioning, and Institutional
Practices. Discourse Studies 11:131152.
Tracy, Karen, and Jessica S.Robles. 2013. Everyday Talk:Building and Reflecting Identities.
2nd ed. NewYork:Guilford.
van De Mieroop, Dorien. 2011. Identity Negotiations in Narrative Accounts about
Poverty. Discourse & Society 22 (5):565591.
van Dijk, Teun A. 1987. Communicating Racism: Ethnic Prejudice in Thought and Talk.
Newbury Park, CA:Sage.
van Dijk, Teun A. 2004. Text and Context of Parliamentary Debates. In Cross-
Cultural Perspectives on Parliamentary Discourse, edited by Paul Bayley, 229372.
van Dijk, Teun A. 2008. Critical Discourse Analysis and Nominalization: Problem or
Pseudo-Problem? Discourse & Society 19:821828.
van Eemeren, Frans H. 2010. Strategic Maneuvering in Argumentative Discourse.
van Eemeren, Frans H., and Bart Garssen. 2009. In Varietate ConcordiaUnited in
Diversity:European Parliamentary Debate as an Argumentative Type. In Argument
Cultures:Proceedings of OSSA 09, CD-ROM, edited by Juho Ritola, 115. Windsor,
ON:OSSA.
208 References
Wald, Kenneth D., and Graham B. Glover. 2007. Theological Perspectives on Gay
Unions: The Uneasy Marriage of Religion and Politics. In The Politics of Same-
Sex Marriage, edited by Craig A. Rimmerman and Clyde Wilcox, 105 130.
Chicago:University of ChicagoPress.
Waldron, Jeremy. 2006. Principles of Legislation. In The Least Examined Branch:The
Role of Legislatures in the Constitutional State, edited by Richard W. Bauman and
Tsvi Kahana, 1532. Cambridge, UK:Cambridge UniversityPress.
Walker, Anne G. 1986. The Verbatim Record:The Myth and the Reality. In Discourse
and Institutional Authority:Medicine, Education. And Law, edited by Sue Fisher and
Alexandra D.Todd, 205222. Norwood, NJ:Ablex.
Walton, Douglas N. 1989. Question-Reply Argumentation. NewYork:GreenwoodPress.
Wasby, Stephen L., Anthony A.DAmato, and Rosemary Metrailer. 1976. The Functions
of Oral Argument in the U.S. Supreme Court. Quarterly Journal of Speech 62
(4):410424.
Watts, Richard J. 2003. Politeness. Cambridge, UK:Cambridge UniversityPress.
Weaver, Richard. 1953. The Ethics of Rhetoric. Chicago:Henry Regnery Company.
Weinstein, Eugene A., and Peter Deutschberger. 1963. Some Dimensions of Altercasting.
Sociometry 26:456466.
Weitzer, Ronald, and Steven A. Tuch. 2006. Race and Policing in America: Conflict and
Reform. Cambridge, UK:Cambridge UniversityPress.
West, Candace, and Sarah Fenstermaker. 2002. Accountability in Action: The
Accomplishment of Gender, Race and Class in a Meeting of the University of
California Board of Regents. Discourse & Society 13:537563.
Whately, Richard. 1836. Elements of Rhetoric. London:B Fellowes.
White, James Boyd. 1985. Heracles Bow:Essays on the Rhetoric and Poetics of the Law.
Madison, WI:University of WisconsinPress.
Whittington, Keith, Neal Deavins, and Hutch Hicken. 2006. The Constitution and
Congressional Committees: 19712000. In The Least Examined Branch: The Role
of Legislatures in the Constitutional State, edited by Richard W. Bauman and Tsvi
Kahana, 396410. NewYork:Cambridge UniversityPress.
Winiecki, Don. 2008. The Expert Witness and Courtroom Discourse: Applying Micro
and Macro Forms of Discourse Analysis to Study Process and the Doing of Doings
for Individuals and Society. Discourse & Society 19:765781.
Woodbury, H. 1984. The Strategic Use of Questions in Court. Semiotica 48:197228.
Woolard, Kathryn, and Bambi Schieffelin. 1994. Language Ideology. Annual Review of
Anthropology 23 (1):5582.
Wrightsman, Lawrence S. 1999. Judicial Decision Making: Is Psychology Relevant?
NewYork:Kluwer Academic.
Wrightsman, Lawrence S. 2008. Oral Arguments before the Supreme Court:An Empirical
Approach. Oxford, UK:Oxford UniversityPress.
Zarefsky, David. 1998. Definitions. In Argument in a Time of Change: Definitions,
Frameworks, and Critiques, edited by James F.Klumpp, 111. Annandale, VA:National
Zimmerman, Don H. 1998. Identity, Context and Interaction. In Identities in Talk, edited
by Charles Antaki and Sue Widdicombe, 87106. London:Sage.
References 209
Cases
Andersen v.King County, 138P.3d 963 (Wash.2006).
Baehr v.Lewin, 852P.2d 44 (Haw.1993).
Baker v.Nelson, 409 US 810 (1972).
Bowers v.Hardwick, 478 US 186 (1986).
Brown v.Bd. of Educ., 347 US 483 (1954).
Conaway v.Deane, 932 A.2d 571 (Md.2007).
Freeman v.Pitts, 503 US 467 (1992).
Goodridge v.Dept of Pub. Health, 798 N.E.2d 941 (Mass.2003).
Griswold v.Connecticut, 381 US 479 (1965).
Hernandez v.Robles, 855 N.E.2d 1 (N.Y.2006).
Hollingsworth v.Perry, 570 US (2013).
In re Marriage Cases, 43 Cal. 4th 757 (2008).
Kerrigan v.Commissioner of Public Health, 289 Conn. 135, 957 A.2d 407 (Conn.2008).
Lawrence v.Texas, 539 US 558 (2003).
Lewis v.Harris, 188 N.J. 415, 908 A.2d 196 (N.J.2006).
Loving v.Virginia, 388 US 1 (1967).
Obergefell v.Hodges, 576 US____(2015).
People v.Kern, 149 A.D. 2d 187 (N.Y.1989).
Perez v.Sharp, 32 Cal. 2d 711(Cal.1948).
Prigg v.Pennsylvania, 41 US 539 (1842).
Roe v.Wade, 410 US 113 (1973).
Romer v.Evans, 517 US 620 (1996).
Skinner v.Oklahoma ex rel. Williamson, 316 US 535 (1942).
Strauss v.Horton, 46 Cal. 4th 364 (Cal.2009).
US v.Windsor, 133 S.Ct. 2675 (2013).
Varnum v.Brien, 763 N.W.2d 862 (Iowa2009).
Washington v.Glucksberg, 521 US 702 (1997).
INDEX
agency,185n3 gayrights
AIDA (action-implicative discourse analysis), history of, 410, 176n12,176n19
1011. See also grounded practicaltheory legal cases, key, 79, 172174
amicus curiae,178n12 implicationsfor
altercasting, 2, 175n5. See also identity-work disability rights,16364
argument immigration rights,16566
practical vs. theoretical, 18990n21 genre
through storytelling. See storytelling comparison of hearings and courts,
apology, 37,12122 15256,17071
design of, 16768,191n8
Bowers v.Hardwick, 8, 5556, 177n2425 future directions for research,16768
burden of proof,8384 legal kinds. See oral argument; opinions,
judicial; hearings, legislative
context theoretical overview, 19, 17778n34
argument view vs. discourse view,9192 GPT (grounded practical theory),
aspects in a hearing 1012,16970
framing of issues,9598
participation design,98106 hearings, legislative
features that affect citizen testimony,95104 comparison of 1996 and 2011 DOMA
arguments,14652
Defense of Marriage Act, 2, 10, 14356, differences between state and federal14243
177n27 overview of purposes,8991
deviant case analysis,3442 problems in designing,10406
dilemmasof religious expression in,10724
judges in crafting judicial opinions,7273 US House DOMA debate,14344
judges in enacting law as both apolitical and US Senate DOMA debate,14445
political, 15859,17172
legislators in designing hearings, identity,16566
10406,16061 definitional overview,1
religious speakers in hearings,12024 identity-work, 2, 7273, 15861,16567
discourse analysis. SeeAIDA kinds of, 12, 175n23
discourse strategies, judicial moral, 14156,16667
defining of key terms, 7879,159 positioning175n6
extreme case formulations, 6465,7778 ideology
frame-constructing,2325 definitional overview, 6062, 18283n3
humor, 4041,6667 revealed through judge questioning,6371
lexical markers,2527 interruption, 37, 69,180n19
law demands that,7983 interviewing. See methods
others have misguided motives,8183 issues, person-rights vs. scientific-technical,
pronoun use,8586 161,191n3
relational definers,2729
reported speech,77 judges, supremecourt
speech acts,2527 identityconstructing discourse moves, 2334.
use of membership categorization device,53 See also dilemmas, ideology
See also burden of proof, narrative
Lawrence v.Texas, 89, 5658, 162, 174,177n24
facework, 2930, 12024,18n20 Loving v.Virginia,9 211
212 Index
membership categorization device, 4546, deviant,3442

181n34 typical,2334
methods minimal politeness,2930
coding procedures for personreference terms, normal variation in,3034
182n814
coding procedures for judges politeness,2930
questions,183n58, 18485n1214
interviews with judges,178n5 questions
transcribing procedures, 180n17,188n4 by judicial committee members, 102103
See alsoAIDA in rape trials,183n4
morality in discourse, 14156,161 rhetorical,3940
See also tough questioning
naming of litigants
in same-sex marriage cases,4754 religion in hearings
in earlier gay rights cases,5459 citizen invocation strategies,11119
See also term usage, gay vs. homosexual history of God-government relationship in
narrative US,10810
case of dueling narratives, 133137 right side of history, 137138,188n11
definitions of, 125127
emerging coda in same-sex marriage same-sex marriage
debate,13738 history of, 910,4359
how they promote social change, 127133 legal actions after US v.Windsor, 172174
See also storytelling legalization,17374
sexual orientation, as matter of conduct vs.
opinions, judicial category of citizen, 12024, 157,16163
discourse strategiesof social change, 14142,15765
context-spanning,7679 stance-taking, 4346, 181n1,188n2
appellate law grounded,7985 Starr, Kenneth,3442
in Andersen v.King County,7385 storytelling,65
in Varnum v.Brien,8586 argumentative functions served in
writing dilemmas,7273 hearings12733
oral argument who does it more often,12627
approaches to study of, 18384n910 See also narrative
communicative purposes, 2023,179n15
debate about its value, 17879n3 term usage, gay vs. homosexual, 5059,
discourse moves of judges, 2334. See also 15155,159
discourse strategies, judicial tough questioning,6771
in US v.Windsor, 141, 145146, 152156 transcribing. See methods
overview of genre,1920
person reference in,4359 US v.Windsor. See oral argument
ability to convey evaluation,4346
stylesof writ of certiorari, 178n8

Discourse, Identity, and Social Change in The Marriage Equality Debates

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Discourse, Identity, and Social Change in The Marriage Equality Debates

Uploaded by

Copyright:

Available Formats

Discourse, Identity, and Social Change

inthe Marriage Equality Debates

The Legal Language of Scottish Burghs: Speaking of Language and Law:

Im Sorry for What Ive Done:The Confronting the Death Penalty:How

Dueling Discourses:The Construction of Discursive Constructions of Consent

Speak English or What?:Codeswitching Discourse, Identity, and Social Change

Law at Work:Studies in Legal Ethnomethods

Published in the United States of America by Oxford UniversityPress

Oxford University Press2016

All rights reserved. No part of this publication may be reproduced, storedin

You must not circulate this work in any otherform

Library of Congress Cataloging-in-Publication Data

List of Figures and Tables vii

PART ONE Discourse in State SupremeCourts

PART TWO Discourse in Judicial Committee Hearings

PART THREE Comparisons and Conclusions

Id like to thank the participants in CUs Rhetoric Workshop and my depart-

Segments within six of the 10 chapters build on previously published work.

Opinion-Writing. In (Re)Presentations and Dialogue, edited by F.Cooren and

Identity is something that is used in talk:something that is part and parcel

persons attitudinal stances, perceived character, and what we often refer to

My involvement with this project began as a result of a seminar I teach,

A Brief History ofSame-Sex Marriage and GayRights

In the second decade of 21st-century America, such a stance seems shocking.

in sodomy (Bowers v. Hardwick, 1986). Bowers, notes legal scholar William

In the 1992 popular referendum on Amendment 2, 53.4% of Colorado vot-

AIDA, GPT, and theData

Discourse analysis is my central methodological tool. At its simplest, discourse

attention to the challenges speakers face in establishing their moral reasonable-

speaker-protective facework moves that were found primarily in the talk of

The Genre ofOral Argument

State Supreme Courts and Their FocalGenres

Oral Argument and Its Key Purposes

WA Andersen v.King 9 4 0 5 21 state 88 mins.

Note:OA, oral argument.

Identity-Constructing Discourse Actions

Within a state supreme court setting, participants, as appellate judges and

Another facet of pre-allocation is a restriction on the kinds of acts parties

In addition to the institutionally formatted interactional structure,

Throughout the occasion, judges uphold the formality of oral

Excerpt 1.6, CA, Attorney response to Chief JusticeGeorge

LEXICAL AND SPEECH ACT MARKERS

Excerpt 1.7, CA, Justice Kennard

Repeated references to cases and statutes function as a facework strategy to

Excerpt 1.11, CA, Chief JusticeGeorge

Finally, a speech act that simultaneously reflected and enacted a speaker

An important part of the identity of appellate judges is their relational posi-

In instances where an attorney interrupted a judge, the interruption often had a

In addition to interrupting practices, a second discourse feature that estab-

content of a judges question, negative assessments were not expressed or were

Excerpt 1.15, CA, Justice Chin, AttorneyMinter

Excerpt 1.16, CA, Justice Kennard, AttorneyLavy

MINIMAL POLITENESS ASTHE FACEWORKSTYLE

and Levinson 1987)were noticeably absent. Judges posed tough questions to

Judge Variation inPerformance oftheGenre

The dilemma raised by this race-gender question, inadvertent though it

DISCOURSE MOVES INTHE DEVIANTCASE

A particularly subtle way that justices could attend to an attorneys posi-

Justices interrupting an attorney were commonplace occurrences in oral

Some justices questions could be judged as tilted or biased. In responding

In addition, at one point he explicitly exposed the evaluative tilt of a justices

Excerpt 1.29, CA8, Justice Chin, AttorneyStarr

Starrs frequent use of rhetorical questions invoked a relational frame at odds