Suzanne A. Kim *
Legal discussions of inequality often focus on the virtues of one legal status or regulatory structure over another, but a guarantee of the right to a particular legal status does not ensure a lived experience of equality in that status. In moments of legal change, when a person or class of persons obtain a new status or gain rights that had previously been denied to them, the path from one legal status to another becomes critically important and may itself be impacted by race, gender, age, and other factors. The process of transitioning to a new status can be complex and burdensome in unexpected ways, and lack of attention to that process can impair persons’ inhabitation of their newly acquired legal rights.
This article examines the underexplored issue of inequality in the process of shifting legal relational status and posits a new framework of “Transitional Equality” to address vulnerabilities that may arise during the process of transition itself. Focusing on the constitutional law of intimacy, this article discusses the specific case study of tens of thousands of same-sex couples who have transitioned from the legal status of unmarried to married after the Supreme Court’s 2015 decision on marriage equality in Obergefell v. Hodges. Same-sex couples face substantially different process burdens than different-sex couples when moving from from unmarried to married, and for some couples the burdens may be exacerbated by racism, poverty, and other structural obstacles. Achieving the promise of equality requires attention to such factors and their impact on the lived experience of becoming married.
Transitional Equality is a framework for identifying obstacles to full enjoyment of new legal rights and building resilience in the process of moving from one legal relational status to another. This article situates this new framework in reference to critical legal theory, constitutional doctrine, legal policy, and areas for future policy innovation and sociolegal research.
We are in the midst of a robust public discussion of various forms of inequality, including in regard to gender and sexuality, economic opportunity, health, criminal justice, immigration, education, and other areas. Transitional Equality provides a framework for identifying obstacles and solutions on the path to achieving equal rights that have been promised under law.
* Professor of Law and Judge Denny Chin Scholar, Rutgers Law School. For generous engagement on the ideas contained here, I thank Jamie Abrams, Kerry Abrams, Carlos Ball, Arianne Renan Barzilay, Noa Ben-Asher, Alexander Boni-Saenz, Naomi Cahn, June Carbone, Colleen Chien, Bridget Crawford, Deborah Dinner, Jessica Dixon Weaver, Max Eichner, Martha Fineman, Suzanne Goldberg, Julie Goldscheid, Meredith Johnson Harbach, Andy Hayward, Christina Ho, Kevin Maillard, Solangel Maldonado, Maya Manian, Kaipo Matsumura, Jessica Miles, Melissa Murray, Kim Mutcherson, Douglas NeJaime, Chrystin Ondersma, Margo Pollans, Darren Rosenblum, Andrew Rossner, Clare Ryan, Fergus Ryan, Sabrina Safrin, the faculty of Pace University Law School, the Columbia Law School Center for Gender and Sexuality Law, the International Society of Family Law, the Vulnerability and the Human Condition Initiative at Emory Law School, and the University of Lund. I thank Taylor Craney, Christina La Bruno, Heather McLinn, Michael Licciardi, Alexandria Silva, and Nicole Virella for invaluable research assistance. I thank Rutgers Law School and the Shuchman Fund for Empirical Research for valuable support