Marriage ≠ Marriage: Querying the Relevance of Equality to the Interstate Recognition of Same-Sex Relationships

BY JEFFREY A. REDDING, 69 U. Miami L. Rev. 117 (2014).

Introduction: The interstate recognition of relationships has posed numerous foundational questions for time immemorial. For example, both in United States and transnational practice, the portability of marriage and other interpersonal relationships, as well as the portability of these relationships’ terminations through devices like divorce, has raised fundamental questions about the nature of ‘family’ and how this concept gets translated across jurisdictional borders. Indeed, over the years, officially monogamous European nations have had to decide the extent to which they will recognize the polygamous marriages of persons emigrating from places like North Africa or South Asia. And, in the United States, one of the more vexing issues in family law—and still unresolved after the recent Supreme Court decisions in United States v. Windsor and Hollingsworth v. Perry—has been whether an officially heterosexual U.S. state should (or must) recognize a same-sex marriage or civil union entered into within the boundaries of another U.S. state. Whether European or American, inter-jurisdictional relationship-recognition has posed deep and important questions as to the comparability and compatibility of different jurisdictions’ family law practices.

This essay seeks to explore and complicate the contemporary U.S. interstate same-sex relationship-recognition debate, but from an untraditional perspective—one which might be labeled not only untraditional, but also ‘queer.’ As with all explorations, and especially queer ones, this essay’s destination is far from certain and not necessarily a conclusive one. That being said, one primary goal of this essay is to urge a reconsideration of the relevance of popular notions of equality to the interstate relationship-recognition debate in the United States. Indeed, as this essay will suggest, to the extent that equality intends 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. Quite simply, then, this essay seeks to explore what interstate relationship-recognition might look like if the inter-jurisdictional equation looked less like ‘marriage = marriage’ and more like ‘marriage marriage.’

A great deal of (liberal) academic writing and political and legal work on interstate same-sex relationship-recognition has attempted to use the idea of equality to argue for the universal recognition of a legally-conducted same-sex marriage, regardless of whether or not a ‘receiving state’ conducts same-sex marriages itself. For example, under this view, equality dictates that Missouri recognize the same-sex marriage of a couple who marries in the bordering state of Iowa, a state that conducts same-sex marriages, regardless of Missouri’s extant legal prohibition on conducting same-sex marriages in Missouri itself. As this ‘marriage equality’ thinking often tautologically goes, ‘marriage is marriage’ and, hence, a same-sex marriage conducted in one jurisdiction should be recognized equally as a marriage in all other jurisdictions.

This essay, however, aims to queerly complicate this easy conclusion concerning ‘migrating same-sex unions’ by querying whether all states’ marriages are, in fact, the same institution—even putting aside the question of differences between states on same-sex marriage specifically. Moreover, in problematizing the view that all U.S. states are essentially trying to do the same thing via the marriages these states individually conduct, this essay also aims to problematize any simplistic grafting of equality onto the contemporary interstate relationship-recognition debate concerning same-sex relationships specifically.

Any suggestion that even an opposite-sex marriage cannot easily be translated as ‘marriage’ outside of this marriage’s home state will be a difficult one for many readers of this essay to digest. Indeed, as Part II of this essay’s brief summarization of both historical and contemporary U.S. approaches to the interstate recognition of formal interpersonal relationships (as well as their official terminations) suggests, any highly pluralistic approach to U.S. family law has tended to pose uncomfortable and distressing possibilities for many U.S. judges, lawyers, and legal academics alike.

As a result of this American discomfort with pluralism, another lens on interstate relationship-recognition is needed (at least for this essay’s purposes). Part III of this essay, then, builds upon the author’s background as a comparativist, using experience from the United Kingdom (“U.K.”) and the dilemmas it has faced about whether to recognize overseas divorces, to demonstrate how one influential legal context has viewed the highlighting of inter-jurisdictional family law pluralism to be not only plausible but also desirable.

Part IV returns the focus back to the contemporary United States, exploring what the implications of adopting a U.K.-like, pluralismembracing approach might be for the contemporary interstate relationship- recognition debate in the United States. Indeed, as this concluding Part’s pluralism-oriented discussion of different U.S. states’ marriage definitions will suggest, if one does not shy away from how ‘marriage’ is legislatively defined differently in different U.S. states, one finds that ‘marriage’ is never simply—or equal to—‘marriage’ anywhere in the United States. As a result, it is far from clear that sameness-oriented equality plays necessary, relevant, or desirable roles—at least in the ways it is often claimed to play such roles—in the contemporary U.S. interstate relationship-recognition debate.

Ultimately, this essay’s queer explorations will lead to an uncomfortable possibility—for liberals and conservatives alike—namely that same-sex marriages and civil unions (or domestic partnerships) 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 vice-versa….Full Article.

Recommended Citation: Jeffrey Redding, Marriage ≠ Marriage: Querying the Relevance of Equality to the Interstate Recognition of Same-Sex Relationships, 69 U. Miami L. Rev. 117 (2014).

Leave a Reply

Your email address will not be published. Required fields are marked *