Chapter 10. Everyday argument strategies in Appellate Court argument about same-sex marriage

Arguments that occur in the legal sphere are often held up as exemplars of good argument conduct, distinctively different from how most ordinary argument proceeds. In this chapter I analyze oral arguments in two cases of the California Supreme Court (In Re Marriage, Strauss v. Horton) as the court considered the legality of its laws regarding same-sex marriage. In both cases, the focal issue concerned whether denying same-sex couples the name “marriage” for their unions constituted a violation of the California law. The first case declared that it did; the second case, following a change to the state constitution defining marriage as one man-one woman, said it did not. After describing three argument strategies that are pervasive in everyday discourse – defining key terms to advantage one’s position, using a vivid analogy to drive home the (un)reasonableness of an action, and using lexical choices that cue a stance on a contentious issues – I illustrate that in the technical sphere of appellate argument these everyday strategies were commonly used. The chapter concludes by considering the significance of this interpenetration of everyday argument practices and technical legal argument.