Abstract

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.