This essay seeks to explore and complicate the contemporary U.S. interstate same-sex relationship-recognition debate and, in particular, to offer a reconsideration of the relevance of popular notions of equality to this debate. Indeed, to the extent that equality is meant to treat identical things identically, it is not a value that is easily applicable to the radical plurality of American family law—a plurality that complicates even the translation of any state’s ‘marriage’ as ‘marriage’ outside of that state. Ultimately then, this essay’s explorations lead to an uncomfortable possibility—for liberals and conservatives alike—namely that same-sex marriages and civil unions cannot simplistically be inter-jurisdictionally translated in the United States as ‘marriage’ always, but neither can opposite-sex ‘marriage’itself. Indeed, insisting on the identity, or equality, of marriage from U.S. state to U.S. state occludes the inter-jurisdictional differences that are always present—if often ignored—in translating (for example) a ‘Massachusetts marriage’ as a ‘Mississippi marriage,’ or viceversa.
Jeffrey A. Redding,
Marriage ≠ Marriage: Querying the Relevance of Equality to the Interstate Recognition of Same-Sex Relationships,
69 U. Miami L. Rev.
Available at: http://repository.law.miami.edu/umlr/vol69/iss1/5