These two papers, recently posted on SSRN, look to be interesting

"No Male or Female"

U of Chicago, Public Law Working Paper No. 266

MARY ANNE CASE, University of Chicago Law School
Email: [email protected]

For this, my contribution to the Feminist Legal Theory Projects's Twenty-fifth Anniversary Volume Beyond the Boundaries of the Law, I take the invitation to participants to be to speak very personally about how we came to feminist legal theory and what we made of it. I take my title from the New Testament, because I came to my own radical take on sameness feminism through teenage engagement with the Catholic Church's radical past and repressive future on matters of sex equality and through engagement in college and graduate school with arguments for the equality of the sexes made from the Middle Ages through the French revolution by otherwise conservative women defending their own right to participate in male-dominated enterprises and otherwise radical men willing to call all received ideas into question, even those concerning women's place.

The essay will be in part a reminder that there are far more generations than three who have sought to transcend the boundaries of the law through feminist theory: feminists, male and female, have been making their case for centuries. It will also be in part an elegy for potential alliances lost: though many of the women who in prior centuries sought to bring their sex beyond the boundaries of the law were self-described conservatives on other matters, in my lifetime feminism and conservatism have come to be seen as antithetical, something I dealt with on a daily basis as a faculty member in two of the nation's most conservative law schools, Virginia and Chicago. Also in my lifetime, the Church that brought me to sameness feminism at first repudiated sex equality and then turned to an embrace of difference, as official guardian of doctrinal purity Joseph Ratzinger, now Pope Benedict XVI, in official pronouncements explicitly rejecting the sort of sex and gender theory to which I am committed, came close to suggesting that even souls have a sex.  [Download here.]

"Name Calling: Identifying Stigma and the 'Civil Union'/'Marriage' Distinction" 

Connecticut Law Review, Vol. 41, 2009
Seton Hall Public Law Research Paper No. 1421208

MARC R. POIRIER, Seton Hall University - School of Law
Email: [email protected]

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.  [Download here.]