Defining Marriage in California: An Analysis of Public and Technical Argument

Whether the term and legal status of marriage should include same-sex couples is the most prominent civil rights question in the United States in the early 21st century. Like all significant definitional controversies, competing values, interests, and questions of power are at stake in how the institution of marriage and the legal right to marry are defined. In the state of California, two competing definitions emerged from two distinct argumentative spheres. On May 15, 2008, the Supreme Court of California ruled in In re Marriage Cases that marriage could not be limited to male/female couples, thereby redefining marriage to include same-sex couples. On November 4, 2008, the people of California voted to approve what is known as Proposition 8, which states: "Only marriage between a man and a woman is valid or recognized in California" (California Voter Guide, 2008). Drawing on G. Thomas Goodnight's (1982, 1987) influential work on argument spheres, this essay compares and contrasts the arguments advanced in the technical sphere of legal and constitutional debate with those in the public sphere leading up to the November 4, 2008, vote with a particular emphasis on definitional arguments, that is, arguments over how marriage ought to be defined. Of particular interest is how the norms and practices of constitutional argument in the technical sphere filter out specific arguments-particularly fear appeals and claims based on religious beliefs and values-that are prevalent in the public sphere over Proposition 8. The essay concludes with a discussion of the dilemmas facing a society in which the public and technical spheres of argument produce dramatically different performances of rhetorical reasoning and how scholars of argument might respond. Specifically, I contend that the gap between technical and public sphere argumentation can be enormous, even concerning an explicitly political topic, highlighting the question of audience competence when it comes to the performance of reasonability on technical matters. To a surprising degree, the outcome of the public debate illustrates the concerns expressed by James Madison and Alexander Hamilton about the public sphere more than two centuries ago. From a theoretical standpoint, we can accept Goodnight's description of the three spheres of argument while refining the normative notion that the public sphere is preferable for all political argument. To that end, the dispute over same-sex marriage affords argumentation scholars an important pedagogical opportunity to try to enhance audience competence in the public sphere. LEGAL ARGUMENT AS TECHNICAL SPHERE ARGUMENT Goodnight's (1982, 1987) familiar typology of public, technical, and personal argument spheres provides a useful framework for thinking through just how different the arguments were in California that yielded contrary definitions of marriage. Goodnight (1982) defined "sphere" as "branches of activities-the grounds upon which arguments are built and the authorities to which arguers appeal" (p. 216). Argument in the personal sphere is relatively private, informal, ephemeral, and guided by the arguers' own sense of appropriate norms. Argument in the technical sphere, by contrast, is typically regulated by a particular community of arguers who determine who may speak or publish and requires "a considerable degree of expertise with the formal expectations" of argument (p. 219). In contrast to the personal sphere, technical argument is typically archived in some manner, the content constrained because "more limited rules of evidence, presentation, and judgment are stipulated in order to identify arguers of the field and facilitate the pursuit of their interests" (p. 220). Argument in the public sphere occurs when matters become of interest to a broader audience of citizenry. Public sphere argument is characterized, in part, by its accessibility to elected or self-selected representatives of particular positions. …