Law Review: “Dignity, Legal Pluralism, and Same-Sex Marriage”

Jeff Redding, Dignity, Legal Pluralism, and Same-Sex Marriage (May 22, 2010). Brooklyn Law Review, Vol. 75, 2010. Available at SSRN: http://ssrn.com/abstract=1613370

This Article aims to contribute to the radical re-thinking of family law that is on-going in the contemporary United States by analyzing recent U.S. developments with respect to same-sex marriage from a transnational perspective. In doing so, this Article argues against the odd and overstated quality of recent American state court discussions concerning the necessary relationship between dignity and family law pluralism. These discussions, and the conclusions that they have given rise to, have resulted not only in the erasure of profound and enviable gay and lesbian legal achievements – “domestic partnerships,” “civil unions,” and the like – but also to a severe backlash in the form of Proposition 8 and similar state ballot initiatives.

The conventional (liberal) view is that Proposition 8 and similar laws which create “separate but equal” relationship-recognition regimes for homosexuals (as opposed to traditional heterosexual marriage) pose insurmountable affronts to gay and lesbian dignity. Using a transnational perspective and analysis, however, this Article proposes an alternative, more optimistic take on the relationship between dignity, same-sex marriage, and legal pluralism. Indeed, while the political campaign around Proposition 8 was heated and at times vitriolic, the ballot initiative ultimately returned California to a situation of family law pluralism, i.e. a situation where same-sex and opposite-sex couples are each governed by different (family) laws. In this instance, these different family laws grant essentially the same rights and responsibilities to each sort of couple.

As this Article argues, however, there are other possible results from maintaining a separate system of family law for gays and lesbians, namely the possibility of gay and lesbian people exercising agency with respect to the family laws which directly affect them. With this agency, gays and lesbians would have the possibility of experiencing something more than “separate but equal” family laws being applied to them. Indeed, gays and lesbians would have the opportunity to author – or, in other words, to exercise agency with respect to – their own “separate and better” alternatives to (heterosexually-authored) “majoritarian marriage.” These positive aspects to Proposition 8, and family law pluralism more generally, should not be overlooked, and this Article explores how they can be capitalized upon in a principled, dignity-oriented manner.