Same-Sex Marriage and the Spanish Constitution: The Linguistic-Legal Meaning Interface

Abstract

This paper analyzes the implications that the linguistic formulation of the marriage provision of the Spanish Constitution of 1978 had for securing the passage in 2005 of Law 13/2005, which legalized same-sex marriage (SSM). By claiming that a semantic (contextually recovered) omission in the original legal text was a marker of distributiveness (i.e., inclusiveness of SSM), SSM supporters aimed to avoid a constitutional amendment, and succeeded in doing so. This linguistic argument, based on implicitness, was instrumental as a subsidiary argument of political moral argumentation. Linguistic meaning therefore contributed decisively to both the legal meaning of the marriage provision and the content of the law (the extension of marriage rights to same-sex couples via the Civil Code). I argue, against some assumptions in the literature stating otherwise, that linguistic meaning should not be dismissed in constitutional interpretation and adjudication.