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The Rhetorical Construction of Legal Culture: Ideographs and Relationships in Appellate

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The Rhetorical Construction of Legal Culture: Ideographs and Relationships in Appellate “The Rhetorical Construction of Legal Culture: Ideographs and Relationships in Appellate Opinions Addressing Same-Sex Marriage and English-Only Legislation” by Michael A. Cavanagh Director of Dissertation: Dr. Wendy Sharer Major Department: English This dissertation presents a framework for both a legal and rhetorical analysis of appellate opinions. The legal analysis is a traditional form of legal analysis of an opinion, including a discussion of the facts of the case, the procedural status of an opinion, and, finally, a presentation of the holding of the court—the ultimate decision of which party prevails and the appropriate remedy provided by the court. The rhetorical analysis is an adaptation and expansion of James Boyd White’s methodology of examining phrases of central meaning and value and the relationships created by a given text. More specifically, using Michael Calvin McGee’s theory of “ideographs,” the dissertation analyzes the relationships created by the ideographs used by appellate courts in two state appellate opinions, In re Marriages, a California Supreme Court opinion addressing same- sex marriage, and Ruiz v. Hall, an Arizona Supreme Court opinion addressing “English-only” legislation. Each of these cases was initiated by plaintiffs who were part of an oppressed minority, and, in both cases, the plaintiffs challenged a law they believed deprived them of a basic right given to the majority of citizens, but denied to them. Finally, guided by the goal of critical discourse analysis to intervene on behalf of dominated and oppressed groups, the dissertation concludes by suggesting an interpretation of the appellate opinions in a way that protects both the majority and the minority of citizens. “The Rhetorical Construction of Legal Culture: Ideographs and Relationships in Appellate Opinions Addressing Same-Sex Marriage and English-Only Legislation” A Dissertation Presented To the Faculty of the Department of English East Carolina University In Partial Fulfillment of the Requirements for the Degree Ph.D. in Technical and Professional Discourse by Michael A. Cavanagh (November, 2012) © 2012 Michael A. Cavanagh “The Rhetorical Construction of Legal Culture: Ideographs and Relationships in Appellate Opinions Addressing Same-Sex Marriage and English-Only Legislation” by Michael A. Cavanagh APPROVED BY: DIRECTOR OF DISSERTATION: ___________________________________ Wendy Sharer, Ph.D. COMMITTEE MEMBER: ___________________________________ Catherine Smith, Ph.D. COMMITTEE MEMBER: ___________________________________ Dana Harrington, Ph.D. COMMITTEE MEMBER: ___________________________________ Eric Shouse, Ph.D. CHAIR OF THE DEPARTMENT OF ENGLISH: ___________________________________ Jeffrey Johnson, Ph.D. DEAN OF THE GRADUATE SCHOOL: ____________________________________ Paul J. Gemperline, Ph.D. ACKNOWLEDGEMENTS I would like to acknowledge the hard work, guidance, patience, and the many suggestions for improvement offered by my dissertation committee. They are Drs. Wendy Sharer, Catherine Smith, Dana Harrington and Eric Shouse. All of them have travelled far—both figuratively and, in one case, literally—to engage with me in this project and I very much appreciate all of their help and support during this process. Because of their support and guidance, my dissertation is a far better product than I could have created on my own. I also would like to acknowledge the love and support of my family—my wife Mary, my daughter Mattie, and my son Jack. They have had to listen to me for far too long talking about my graduate work and have always acted interested and concerned. I promise to find a new topic to complain about. TABLE OF CONTENTS Page CHAPTER1: INTRODUCTION, LITERATURE REVIEW AND METHODOLOGY ...............1 I. Introduction ..........................................................................................................1 II. Literature Review.....................................................................................................8 III. Methodology ........................................................................................................18 A. Research Questions ....................................................................................18 1. Legal Analysis ...............................................................................19 a. Legal Analysis Research Questions ...................................20 i. What is the factual scenario involved in the case? ........20 ii. What is the procedural layout of the case? ...................20 iii. What are the legal conclusions and ultimate holding of the opinion? ................................................21 2. Rhetorical Analysis ........................................................................21 a. Rhetorical Analysis Research Question .............................21 b. Legal Analysis Research Questions ...................................21 i. What are the important ideographs presented in these two state appellate court opinions? .......................22 ii. What are the relationships newly constituted as a result of these ideographs? ....................................25 iii. Is there an alternative interpretation of the law in these areas that does not result in marginalizing an oppressed or under-represented population? ............25 B. Choosing a Text for Analysis ....................................................................27 Page CHAPTER 2: IN RE MARRIAGES CASES ................................................................................29 I. Legal Analysis .......................................................................................................31 A. Factual Scenario .........................................................................................31 B. Procedural Layout .....................................................................................32 1. Superior Court (Trial Court Level) ...............................................34 2. California Court of Appeals ...........................................................36 3. Supreme Court of California Opinion ............................................37 a. California Equal Protection Clause Analysis .....................37 b. Constitutional Right of Privacy or Personal Autonomy ..........................................................................41 C. Legal Analysis Conclusion ........................................................................42 II. Rhetorical Analysis ................................................................................................44 A. Phrases of Central Meaning and Value/Relationships ...............................44 1. “Equal Protection” ........................................................................45 2. “Fundamental” ..............................................................................49 3. “Marriage” ....................................................................................51 III. Conclusion .............................................................................................................57 A. A Non-Discriminatory Interpretation ........................................................59 CHAPTER 3: RUIZ V. HULL ......................................................................................................62 I. Legal Analysis .......................................................................................................64 A. Factual Scenario, Procedural Status and Legal Holdings ..........................64 1. Federal Court Action ......................................................................64 2. State Court Action: Trial-Level Court ...........................................65 Page 3. Arizona Court of Appeals ..............................................................66 4. Arizona Supreme Court .................................................................67 B. Legal Analysis Conclusion ........................................................................67 II. Rhetorical Analysis ................................................................................................68 A. Phrases of Central Meaning and Value/Ideographs ...................................68 1. “Content Neutral” ..........................................................................69 2. “Mode of Communication” ...........................................................71 3. “First Amendment Values” ............................................................73 4. “Equality” .....................................................................................75 III. Conclusion ........................................................................................................76 CHAPTER 4: CONCLUSION ......................................................................................................80 I. Areas For Future Research………………………… .............................................82 A. Legal Research ...........................................................................................82 B. Rhetorical Analysis ....................................................................................83 REFERENCES: APPENDIX A: In re Marriage Cases ..........................................................................................86 APPENDIX B: Ruiz v. Hull ........................................................................................................178 Chapter 1: Introduction, Literature Review and Methodology I. INTRODUCTION The connection between rhetoric and law has roots in antiquity.
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