Same Sex Marriage, Identity Processes, and the Kulturkampf: Why Federalism is Not the Main Event

34 Pages Posted: 9 Apr 2008 Last revised: 18 Jun 2009

See all articles by Marc R. Poirier

Marc R. Poirier

Seton Hall University - School of Law

Date Written: September 30, 2008

Abstract

Federalism is implicated in an important subset of arguments around issues of legal treatment of same sex marriage and other same sex unions. But federalism is not the main event. It fails to account for or address the goals of strategizing around the deep cultural conflict of which the struggle for marriage equality is a part. This essay labels "experimental federalism" one traditional justification for federalism as the laboratories of the states; and it labels "resource matching federalism" another traditional justification that seeks to find the best level of government to manage specific resources. The Kulturkampf over marriage, gender, sexuality and family is neither of these types of federalism. It is instead "beachhead federalism," in which deeply divided partisans seek to compel the entire polity to choose their approach from the outset, and a state-by-state patchwork is the contingent result of differential cultural and political forces, rather than of any rational, deliberate and stable choice of governmental level.

To account for and strategize the current Kulturkampf, we must look elsewhere. The essay argues that the deep cultural division over marriage fundamentally is driven by disagreement over gender and sexual identity in individuals and gender and sexual identity as shared and replicated tradition. Gender and sexual identity depend on microperformances. Microperformances are either observed and contested in specific local places, or are visible and contested in an ageographic discursive space. These processes are at once very small scale and very large scale. But neither local place nor disembodied, media-dependent discursive space is fundamentally at the scale of state-by-state and state-local jurisdictional differentiation, which is at the center of standard discussions of federalism and localism. In sum, federalism raises tactical issues of considerable importance, but is not the main event, because the Kulturkampf is about microperformances of identity and their shared meaning.

Keywords: federalism, gender, same sex marriage, microperformance, place, space, scale, discursive space, identity, Kulturkampf, citizenship

Suggested Citation

Poirier, Marc R., Same Sex Marriage, Identity Processes, and the Kulturkampf: Why Federalism is Not the Main Event (September 30, 2008). Temple Political & Civil Rights Law Review, Vol. 17, p. 387, 2008, Seton Hall Public Law Research Paper No. 1118320, Available at SSRN: https://ssrn.com/abstract=1118320

Marc R. Poirier (Contact Author)

Seton Hall University - School of Law ( email )

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