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There was a reason people queued for days and slept in the snow on the steps of the United States Supreme Court to hear an hour of oral argument in Hollingsworth v Perry and United States v. Windsor, the same-sex marriage cases that were argued this week. It surely wasn't the doctrinal points about whether the parties had standing, or even about what level of equal protection scrutiny should apply to laws that discriminate against gays and lesbians. The consistent reason given by prospective members of the audience was this: they were there because the occasion was 'historic'. They wanted to be witnesses; they wanted to read the justices’ faces; they wanted to know, first hand, whether this would be the kind of landmark case that signals a revolution in judicial thinking (like Brown v Board of Education, or Roe v Wade, or, in the Australian context, Mabo) and maybe also a dramatic (if inevitably-fractured) shift in social norms.

A Supreme Court decision that invalidated California’s Proposition 8 or the federal Defence of Marriage Act (DOMA)– both of which reject same-sex marriage - would go way beyond any matter of doctrine. This was abundantly clear in the argument before the Court. Although counsel on both sides spoke with restraint, the ideas they expressed and the examples they gave reflected the parties' deep emotional investment. Although benefits are at stake, especially in the DOMA case, whether one is accorded or denied the right to marry, is not essentially about benefits or entitlements. Benefits are symbols of something much larger. Marriage – whatever its legal definition – is a profound, even existential matter. To be married is to have a status that the unmarried lack, even if (as in Australia) almost nothing regarding social or financial benefits hangs on it.

Something particular leapt out at me from the transcript of the Hollingsworth argument. It was an exchange between Chief Justice Roberts and Theodore Olsen, Counsel for the challengers to Proposition 8. The Chief Justice commented that, in California, where equal benefits are available to all couples, marriage alone is denied to same-sex partners. So, the argument about marriage, he said, is ‘just about the label’. Mr Olsen replied: ‘The label "marriage" means something ... It is like you were to say [to someone] you can vote, you can travel, but you may not be a citizen. There are certain labels in this country that are very, very critical.’

I thought, of course, of the history of married women’s denaturalization - the once-universal legal practice of stripping citizenship from women who married foreign men (see my post, below, ‘Constitutional Citizenship: The Relevance of Gender’). If citizenship is a ‘label’ it is, indeed, a very, very critical one. At its core, the history of denaturalization opens a window on the value of citizenship itself, as an existential status, and on the impact of its denial or deprivation (what I call an existential injury).

In 1934, the British citizenship equality campaigner, Chrystal Macmillan, wrote that: ‘giving an inferior position to women [regarding citizenship] is a matter of the utmost gravity because of the psychological effect … [It is] founded upon the theory of the subjection of women. To recognise in practice this old idea is a refusal to treat a woman as a citizen in her own person. It is to deny her the status of an adult. Furthermore, it gives recognition to a system which has [not only negative practical effects, but]… spiritual consequences.’

For decades, the international community and most governments were resistant to such arguments. They emphasised that, in many cases, no practical or material disadvantages followed the loss of citizenship. Some, however, were sympathetic, but were unable or unwilling to go the full distance. In some cases, they tried to mitigate the practical impact.

Indeed, Mr Olsen’s analogy has a literal historical counterpart. In the mid-1930s, New Zealand and Australia amended their Nationality Acts (which, as in the rest of the British Commonwealth, conferred British subject status by birth) so that resident British-born women, who had lost their citizenship by marriage, could make a declaration of their desire to retain the political rights they would otherwise have held. They could, indeed, continue to vote (although, perhaps, not travel as freely as they wished), although they were no longer British citizens. But laudable – and popular – as this was, it did not satisfy the desire for true citizenship status, for the right to hold the citizenship of their birth, as other married women did. It was not an alternative to being treated as citizens in their own person.

This is all history now, at least in those countries (including the United States) where marital denaturalization was once practised. But the analogy is still powerful. In the United States in 1915, the Supreme Court rejected Ethel Mackenzie’s constitutional challenge to the law under which she had lost her American citizenship by marrying a British man. The Court asserted both that Congress had power to pass such a law, and that there was national benefit in the traditional assumption that a wife’s identity is merged with that of her husband. In the words of the Court: ‘We concur with counsel that citizenship is of tangible worth, and we sympathise with plaintiff in her desire to retain it and in her earnest assertion of it. But there is involved more than personal considerations … [T]he legislation was urged by conditions of national moment.’

These are strikingly resonating words. The argument heard by the Supreme Court this week is also about whether tradition and purported national interest should override the deeply-held desire of a class of persons for equality in legal status, and whether material or practical equality is its equivalent.

To treat marriage (or citizenship) as simply a formal institution and as exchangeable for functional tokens, is to miss the point. Much more is at stake. All the parties in Hollingsworth and Windsor understand this. Marriage has a deep, non-technical meaning. That is what they are fighting about.

The history of married women’s denaturalization not only offers a historical mirror – a way of understanding how the law and the existential coincide – but also an example of how a legal practice that was once thought immutable for reasons both of tradition and expediency, could eventually be overcome so completely that it is now almost forgotten.