Courtney Cahill

This Article provides a novel approach to an issue that has recently assumed national prominence: Whether it is constitutional to extend same-sex couples the substance of marriage but only under a different name, like civil union or domestic partnership. While legal actors have challenged the constitutionality of nominal difference by comparing it to the discredited legal doctrine of separate-but-equal, this Article moves beyond race to show why 'separate' names for gay and straight relationships will never be 'equal,' namely, because they reflect and perpetuate something that has applied to same-sex intimacy for centuries: a speech or a name taboo. In supplementing an analogy grounded in race with a history that is unique to homosexuality, this Article provides a model for advocates and courts when challenging and considering, respectively, the constitutionality of nominal difference moving forward, a model that does not rely solely on an analogy (race/sexual orientation) that has invited widespread critique. Beyond its strategic aims, however, this Article uses the recent "name" issue as an occasion to revisit a phenomenon with which legal historians are well familiar but that the legal community more generally tends to ignore, namely, the influence that the past continues to have on an ostensibly more enlightened present.

This Article examines the role that the incest taboo has played in slippery slope rhetoric pertaining to same-sex marriage specifically, and non-normative family arrangements more generally, and argues that the law must reappraise the extent to which disgust, rather than reasoned argument, sustains laws governing sexual and familial choice. It takes issue with the claim that discussion of the taboo has led to its erosion, and contends that it has remained a powerful symbol of non-normative sexuality that sits at the bottom of the slippery slope of sexual deviance. While often dismissed as mere rhetoric, the incest/same-sex relations analogy has been a strategic way to provoke disgust against otherwise consensual relationships. To explain why the taboo has persisted over time as a point of comparison to any non-normative family arrangement (interracial marriage, same-sex marriage), it maintains that incest, more than any other sexual taboo, represents an archetypal form of disgust and boundary violation. This theory of incest as a core symbol of disgust looks to other disciplines, including political theory, anthropology, and moral psychology, that have described disgust in similar terms, namely, as a mechanism triggered in response to any perceived instance of boundary violation. After situating the taboo within this theoretical framework, this Article explores more fully how, and why, the law has relied on the taboo to discriminate against consensual sexual relationships, most notably same-sex relations. It concludes by suggesting ways in which the law might turn away from the taboo and embrace other models that conceive of familial and sexual relationships in more expansive and less disgust-driven ways.