I’ve recently posted on SSRN a draft of a forthcoming article of mine entitled “Marriage ≠ Marriage: Querying the Relevance of Equality to the Interstate Recognition of Same-Sex Relationships.” To crib from the SSRN abstract, 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, as this essay will suggest, 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.”
In many ways, this article completes a trilogy of mine offering, in different ways, a queer critique of various aspects of the ongoing debate over same-sex marriage in the United States. The first installment in this threesome was my 2010 piece, “Dignity, Legal Pluralism, and Same-Sex Marriage,” which focused on intra-state debates over the desirability of ‘separate but equal’ (or, as I put it in this article, ‘separate and better’) relationship-recognition regimes. The second installment, “Querying Edith Windsor, Querying Equality,” came out last summer and focused on the federal DOMA issue. “Marriage ≠ Marriage: Querying the Relevance of Equality to the Interstate Recognition of Same-Sex Relationships” now looks at the inter-state dimension of the same-sex marriage debate.
I’m not sure what’s next on this front, but I’ve been thinking a lot recently about a more-meta issue, namely what precisely ‘divorce’ is (including how one translates this term inter-culturally and inter-jurisdictionally) and what the relationship between divorce and marriage is. The inter-state debate has allowed for people to be divorced by one state, without ever having been married in another state, which I think raises interesting practical and theoretical wrinkles in how we understand the relationship of divorce to marriage.
In the meantime, the "Marriage ≠ Marriage" piece is still very much in draft form, and I'm always appreciate of feedback. Feel free to comment below or email me; thanks!