Academic

Poirier on Same Sex Marriage & Gender as Performance

By Lawrence Solum

Marc R. Poirier (Seton Hall University - School of Law) has posted Gender, Place, Discursive Space: Where is Same-Sex Marriage? (Florida International University Law Review, Vol. 3, No. 2, p. 307, 2008) on SSRN. Here is the abstract:

Performances of stigmatized or transgressive identity have the potential to transform, at one and the same time, an individual's sense of identity, the character of specific places and spaces where identity is performed and seen and responded to, shared social norms of identity, and the legal rules governing identity and identity performances in specific territorial jurisdicitons. This Article addresses these linked identity processes, focusing on the performances of same-sex couples as married. This Article first introduces the idea of gender as performance and the concepts of place and discursive space, especially as these concern the visiblity of GLBTQ individuals and issues. It then asks the question 'Where is same-sex marriage?' It considers four approaches to this place/space question. They are based on territorial jurisdiction; an aterritorial nomos of discourse; the location of a specifc wedding or civil union; and the microperformances of couples as married in everyday life. With this discussion in mind, the Article argues that we too often overlook the function of the places and spaces in which people must interact around identity. 'Asking the place/space question' systematically would enrich our theory, doctrine, and practice. We might put to better use the insights of several disciplines that consider identity as microperformance. In addition, asking the place/space question illuminates how broad claims to 'equal citizenship' are brought to bear on specific controversies and interactions that exclude or stigmatize individuals. Marriage is one practice of citizenship, and exclusion from marriage creates a sense of second-class status. More generally, GLBTQ folk face exclusion or stigmatization in a wide variety of places and spaces. Their claims of a right to membership are mediated through a number of disparate legal doctrines that address specific acts of exclusion or stigmatization as they occur in various types of places and spaces. We can use the place/space question to develop a tiered description of the praxis of deploying an assortment of legal doctrines to challenge this host of specific acts of exclusion, in the service of an overarching sense of inclusive citizenship.

Full post as published by Legal Theory Blog on June 22, 2009 (boomark / email).