One of the more perplexing aspects of mainstream gay and lesbian organizations’ appeal for ‘marriage equality’ is the embedded (and strenuously articulated) notion that there is ever marriage equality, especially in the United States. In a federal system with 50+ different family law sovereigns, marriage simply isn’t understood or defined to mean the same thing—or embody the same rights—across the United States.
For example, looking at this marital pluralism from one perspective, and one might immediately notice that Alabama understands marriage as an “inherently  unique relationship between a man and a woman. . . . Marriage is a sacred covenant, solemnized between a man and a woman . . . which is recognized by the state as a civil contract.” Florida, by way of contrast, defines marriage, as a “legal union between one man and one woman as husband and wife.” And Kentucky declares that “‘marriage’ refers only to the civil status, condition, or relation of one (1) man and one (1) woman united in law for life, for the discharge to each other and the community of the duties legally incumbent upon those whose association is found on the distinction of sex.” Certainly, there are overlaps in how states (and Native American tribes) understand marriage, but it isn’t the same thing in every jurisdiction—and likely never will be—thereby putting any possibility (or desirability) of ‘marriage equality’ in the United States under real-world query.
Comparative inquiry, at least on first blush, seems then to be an important part of understanding marriage and family law (more generally) in the United States. This should not be surprising given that family law pluralism is a part of many (if not most) nations’ method of administering family law. As a result, it seems to me that comparative inquiry needs to be a core part of U.S. law schools’ (family) law curriculum.
Indeed, to fully understand the American system of family law, I believe that special attention should be paid to countries which self-consciously administer ‘personal law systems’ (e.g. India, Pakistan, Israel, to name a few). Such countries administer several different family law statutes (and bodies of judicial common-law) by which ‘different kinds of people’—usually understood to refer to members of different faith communities (e.g. Hindus, Muslims, Christians)—have ‘different kinds of family law’ applied to them. In the United States, as I have argued elsewhere, we too have a personal law system, both historically and in the contemporary period. Of course, this personal law system looks somewhat different in the United States context—for example, we have different family laws for members of different territorial communities (e.g. ‘Missouri family law’ for ‘Missourians’) and, in several particular state contexts, different family laws for heterosexuals as opposed to homosexuals—but there are many ways in which the differences between American personal law and religiously-oriented personal law systems elsewhere are superficial ones.
This claim is, of course, controversial, but even in disagreeing with it, I think helpful discussions can happen whereby fundamental issues in and commitments of the U.S.’ federalized family law system—and pluralistic society—can be highlighted and better understood by students. While the usual response is to fervently deny that the United States has anything like a personal law system (whether premised in territorial or sexual orientation-premised communities)—because personal law systems are presumptively bad—even that response can be deconstructed to ask: How and why do we consider American law (un)exceptional? Thoughts?