Abstract

http://ssrn.com/abstract=2260379
 


 



What Marriage Law Can Learn from Citizenship Law (and Vice Versa)


Govind Persad


Stanford Law School; Stanford University - Department of Philosophy; University of Pennsylvania - School of Medicine

May 3, 2013

Law & Sexuality, Vol. 22, 2013
Stanford Public Law Working Paper No. 2260379

Abstract:     
Citizenship and marriage are legal statuses that generate numerous privileges and responsibilities. Legal doctrine and argument have analogized these statuses in passing: consider, for example, Ted Olson’s statement in the Hollingsworth v. Perry oral argument that denying the label “marriage” to gay unions “is like you were to say you can vote, you can travel, but you may not be a citizen.” However, the parallel between citizenship and marriage has rarely been investigated in depth. This paper investigates the marriage-citizenship parallel with a particular focus on three questions prompted by recent developments in law and policy:

1) Should we provide second-best statuses? Some couples — in particular gay and lesbian couples — have been offered permanent statuses, like civil unions, that bear legal privileges but fall short of full marriage equality. In contrast, similar differentiations within citizenship are generally resisted. The history of citizenship may presage the increasing unacceptability of differentiations within status in the gay marriage context. Meanwhile, the history of marriage equality efforts may help present-day citizenship advocates choose legal strategies.

2) Should statuses be a gateway to rights? Some early gay rights advocates unsuccessfully argued that advocates should challenge the primacy of marriage, rather than seek access to the institution. Advocates attempting to expand the rights of current noncitizens face similar choices: should they seek to give current noncitizens greater access to citizenship, or challenge the reservation of important rights to citizens?

3) Can status relationships be plural? Many critics of dual and multiple citizenship argued that allegiance to multiple states was immoral, unadministrable, or both. More recently, polygamous marriage has become a topic of legal and political discourse, first as a foil in anti-gay marriage arguments and later as a political possibility in its own right. I will consider whether polygamous marriage advocates can profitably draw on arguments for multiple citizenship, and how multiple-citizenship advocates should responsibly respond to the analogy with polygamy.

Number of Pages in PDF File: 25

Keywords: marriage, gay marriage, same-sex marriage, citizenship, dual citizenship, guest workers, LGBT rights, civil unions, immigration, polygamy

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Date posted: May 5, 2013  

Suggested Citation

Persad, Govind, What Marriage Law Can Learn from Citizenship Law (and Vice Versa) (May 3, 2013). Law & Sexuality, Vol. 22, 2013; Stanford Public Law Working Paper No. 2260379. Available at SSRN: http://ssrn.com/abstract=2260379

Contact Information

Govind C. Persad (Contact Author)
Stanford Law School ( email )
559 Nathan Abbott Way
Stanford, CA 94305-8610
United States
Stanford University - Department of Philosophy ( email )
Main Quad
Bldg 90
Stanford, CA 94305-2155
United States
University of Pennsylvania - School of Medicine ( email )
423 Guardian Drive
Philadelphia, PA 19104
United States
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