Academic

Poirier on Stigma & the Civil Union/Marriage Distinction

By Lawrence Solum

Marc R. Poirier (Seton Hall University - School of Law) has posted Name Calling: Identifying Stigma and the 'Civil Union'/'Marriage' Distinction (Connecticut Law Review, Vol. 41, 2009) on SSRN. Here is the abstract:

The Connecticut marriage equality case, Kerrigan v. Comm?r of Public Health, 957 A.2d 407 (Conn. 2008), turns on a threshold determination that the state legislature?s distinction between 'civil union' and 'marriage' creates a cognizable injury of constitutional dimension. The court?s short explanation of its conclusion hinges on two social facts. First, 'marriage' names a long-standing, complex, and revered social institution, while 'civil union' is a new name with virtually no history. Second, the 'civil union'/'marriage' distinction is framed against a historical background of stereotyping, discrimination, and prejudice against gays and lesbians. The court?s explanation, while accurate, is all too brief. This Article elaborates some aspects of everyday naming practices involving social identity and kinship, in order to assist us in understanding the injury that comes from mandating two distinct names for the core family relationship. It considers (1) the problem of family identity underlying Juliet?s 'What?s in a name' soliloquy in William Shakespeare?s play Romeo and Juliet; (2) Louis Althusser?s concept of interpellation; (3) the feminist critique of language and names, focusing in particular on the 'Miss'/'Mrs.'/'Ms.' controversy; and (4) the way in which concrete, diffuse, everyday social practices of naming and recognition are multiscalar, and interact with larger legal and social structures around recognition, dominance, and subordination. With these considerations in mind, it is easier to see that the 'civil union'/'marriage' distinction has a cultural meaning that will create a stigmatic injury by reinforcing and activating dormant, dispersed sites of stereotyping and prejudice against gays and lesbians. Moreover, the distinction will reinforce a preexisting sense of second-class status, which is arguably a violation of a broad version of a guarantee of dignity under a principle of equal protection. The 'civil union'/'marriage' distinction thus involves and facilitates name calling and identifying stigma ? just as the Connecticut Supreme Court concluded.

Full post as published by Legal Theory Blog on July 01, 2009 (boomark / email).