What’s in a name? Stance markers in oral argument about marriage laws

Abstract

This study examines the relationship between person-referencing terms and attorney and judges' stances during oral argument in three US state supreme courts as each considered whether its existing state law could restrict marriage to one man and one woman. After reviewing past work on stancetaking and person referencing, I provide background on appellate oral argument and the three cases. Combining discourse analysis with simple quantitative coding, the study shows that attorneys' and judges' choices of terms for gay parties and the frequency of their use marked the stance of appellate parties toward same-sex marriage. Then, I describe how person-referencing terms for gays, both in the larger society and in appellate courts, changed in the 20 years preceding the cases. The article concludes by arguing for the value of studying state appellate court discourse; I also reflect about the complexities in linking changes in usage of person-referencing terms with attitudinal stance changes.Keywords appellate discourse, membership categorization, oral argument, person reference, same-sex marriage, stance, state supreme courts 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 moral -its names for objects contain the moral overtones which give us the cues as to how we should act toward these objects. (Burke, 1954: 176-7) Legal pleaders cultivate a wealth of techniques for conveying meanings that they do not appear to be pleading, or even intending to convey . . . For everybody's 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: 175-6) 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, reasonable or not. In this article I examine the weighted words of person-referencing terms in oral argument in US appellate courts. I analyze the person-referencing practices used by judges and attorneys during oral argument in three US state supreme courts as each court considered whether its existing state law could restrict marriage to one man and one woman. In particular, I examine variations in how attorneys and judges named, referenced, and described the gay and lesbian plaintiffs in the three cases to show how the choices in naming cued the stance that a party had either at the outset (the attorneys) or adopted in the outcome (courts in their written opinions).In the article's first section I review scholarly work on stancetaking, and argue that practices for naming, referencing, and describing persons are one important kind. Then I provide background on appellate oral argument, the specific cases, and the data and method. The next section turns to the focal data -the three same-sex marriage appeals cases. Combining discourse analysis with simple quantitative coding, ...

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