[PAST EVENT] 2014 Cutler Lecture: "How to Do Things With Marriage" by Professor Kenji Yoshino

January 29, 2014
3:30pm - 5pm
Law School, Room 127
613 S Henry St
Williamsburg, VA 23185Map this location
In his classic work "How to Do Things With Words," the philosopher of language J.L. Austin drew a distinction between two kinds of speech -- "constative" and "performative." Constative speech describes objects already in existence. When I say "The bull is the field," we presume the bull and field predate my speech. The question to ask about constative speech is whether it is true or false. Performative speech, in contrast, describes objects that are called into being by the words themselves. When I say "I warn you," "I promise you," or "I bet you," we presume that the warning, promise, and bet are conjured by the words themselves. The question to ask about performative speech is whether it is efficacious -- that is, whether the correct conditions obtained to make the speech "fire" rather than "misfire." Austin later goes on to blur this distinction. However, for heuristic purposes, I retain his original distinction to illuminate the same-sex marriage debate.

Austin's distinction underscores one important way in which opponents and proponents of same-sex marriage speak past one another. Some opponents believe that the word "marriage" describes an entity that predates language, while some proponents believe that the word calls the entity into being. Those who take the constative view often place "same-sex marriage" or same-sex "marriage" in quotation marks. They are not being snide; rather, they are expressing a view that legal recognition of such relationships simply misdescribe marriage. "True" marriage, as they often describe it, is an institution that predated the law; the law has only the power to describe or misdescribe it. In contrast, those who take the performative view believe that same-sex marriage is called into being once a proper governmental entity has uttered some version of the following -- "It is hereby ordered that same-sex marriages are legal." The question to ask is not whether the utterance was "true" or not, but rather whether it was "efficacious."

In this lecture, I will use the distinction between constative and performative utterances to diagnose why debates about same-sex marriage are often unsatisfying, because they proceed from fundamentally different predicates about the nature of marriage, and the capacity of law to change that nature. I hope that this description will itself permit a higher level of disagreement. I will then make the normative argument critiquing the constative view as a matter of our constitutional traditions, noting that it flows either from revealed religious premises or from premises about the nature of sex. The constative view, I will maintain, is much less consistent with our understanding of either the Establishment Clause or the Equal Protection Clause. In this sense, while law is in no way categorically opposed to constative utterances, it has arguably foreclosed the predicates that would permit constative utterances that claim to know marriage's "true" nature.

Kenji Yoshino is the Chief Justice Earl Warren Professor of Constitutional Law at New York University School of Law.

The Cutler Lecture series was established in 1927 by James Goold Cutler of Rochester, N.Y., to provide an annual lecture at William & Mary by "an outstanding authority on the Constitution of the United States." The original series of 16 lectures were held from 1928 to 1944. After a period of dormancy, the Cutler lectures were revived in 1980-81 under the auspices of the Law School, with each lecture published in the William and Mary Law Review.

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