1 THE POLITICS OF SAME-SEX MARRIAGE POLITICS KATHERINE M. FRANKE* In this Essay I would like to share some reflections on the politics of same-sex marriage politics. In a very short period of time, this issue has moved to the center of the gay and lesbian rights movement as well as larger mainstream political and legal debates. Some have even argued that this issue affected, if not determined, the outcome of the 2004 presidential election. This, I believe, is rather an overstatement, but I must concede that the issue has gained traction in ways that most of us would not have predicted five years ago. The states of Vermont and Connecticut have enacted Civil Union laws for same-sex couples, the Commonwealth of Massachusetts now allows both same and different sex couples to marry, and, in the last year, trial courts have found unconstitutional the exclusion of same-sex couples from the institution of marriage in New York and California. Spain has now joined some of its fellow EU members in the Rhine Delta by allowing same-sex couples to marry, and the Constitutional
2 2006] The Politics of Same-Sex Marriage Politics 237 Court of South Africa found that the South African Constitution requires that same-sex couples be permitted to marry on terms equal to those made available to different sex couples. 1 At the same time, Governor Schwarzenegger vetoed the same-sex marriage law in California, courts in Arizona and Indiana rejected constitutional challenges to their marriage laws, an intermediate appellate court in New York reversed a trial court finding that same-sex couples should be permitted to marry, and referenda barring same-sex marriage swept the country in 2004 and 2005 and will, no doubt, continue to do so in Forty-two states have enacted little DOMAs, 2 limiting the institution of marriage to one man and one woman. This issue, like so many others in American politics at the present moment, is highly polarized rarely garnering moderate positions. I would like to reflect on this dynamic political, moral, and legal moment which, I fear, may have shifted again by the time you finish reading this Essay by offering some thoughts about how and why this particular issue has emerged as the highest of priorities in the gay community, and what might be the costs of such a strategic choice. Just two years ago, in sweeping language, the U.S. Supreme Court found laws that criminalized same-sex sex unconstitutional in Lawrence v. Texas. This decision has been widely referred to in the lesbian and gay legal community as our Brown, referring to the landmark 1954 desegregation decision Brown v. Board of Education. By this, of course, it is meant that Lawrence would usher in a civil rights revolution for gay men and lesbians in a fashion equivalent to the civil rights movement inaugurated by Brown. In an Essay published in 2004, I offered a more modest appraisal of the promise of Lawrence than that advanced by the leaders of the major gay rights organizations in New York and Washington. 3 I also voiced concern about the direction that the gay community was taking in its infatuation * Professor of Law, Columbia University. I presented earlier versions of this Essay at NYU Law School s Review of Law and Social Change colloquium on Continuing the Civil Rights Movement: Lesbian, Gay, Bisexual and Transgender Equality; Yale Law School s symposium on Breaking with Tradition: New Frontiers for Same-Sex Marriage; the Feminist Debates series at Rice University; the Feminism and Law Workshop at the Faculty of Law of the University of Toronto; and the 10/10 lunch group at Columbia Law School. At each of these venues I received extremely thoughtful comments and engagements with the essay. All of the members of these variously assembled groups, of course, should be excused from any negative associations that might attach to the arguments I make herein. 1 Minister of Home Affairs v. Fourie, CCT 60/04 (Dec. 1, 2005). 2 The Defense of Marriage Act, 28 U.S.C. 1738C (2005), sometimes referred to as DOMA, bars the federal recognition of same-sex marriages by any of the states and invites states to refuse to give full faith and credit to same-sex marriages entered into in another state. 3 Katherine M. Franke, The Domesticated Liberty of Lawrence v. Texas, 104 COLUM. L. REV (2004).
3 238 Columbia Journal of Gender and Law [Vol. 15:1 with domesticity and respectability, as well as the dangers inherent in this particular paradigm shift in the way the state regulated same-sex sex. In this Essay I would like to elaborate on some of the ideas I gestured toward in that Essay, particularly in light of developments in the last year or so. As a political and a legal matter, decriminalization lands one in both an interesting and, for some, uncomfortable social position. In important respects, gay people s relationship to the state at this moment shares some similarities with the position of freed men and women in the nineteenth century in the period between the ratification of the Thirteenth and Fourteenth Amendments. Black people were no longer enslaved or enslavable, yet they did not enjoy robust civil and political rights either. They were not citizens or full civil and political subjects, rather they were freed-people, not free people. It took the 1866 Civil Rights Act and ultimately the Fourteenth Amendment to the Constitution to transform Black people into African-Americans. The middle ground they lived in during the period between emancipation and citizenship I have come to call freed-dom. Gay men and lesbians find themselves in a similar civil and political middle ground now as well. Decriminalization merely disables a form of public regulation of private adult activity, it is nothing more than the undoing of delegitimization; indeed, it neither sanctions nor suggests any alternative form of legitimization. So too, it does not render, determine, or require a particular form of political legibility. It merely signals a public tolerance of same-sex sexual behavior, so long as it takes place in private, and between two consenting adults in a relationship. By steps from Bowers to Lawrence, lesbigay people have sought to reposition themselves in the American polity from a liminal location saturated by perversion, to membership in this political community as equals and as peers. Of course there was an intermediary step between Bowers and Lawrence. In Romer v. Evans, the Supreme Court, over the predictably vehement objections of Justice Scalia, invalidated a Colorado referendum that prohibited state or local governments from extending civil rights protections to persons on the basis of sexual orientation. The Court based this holding on the normative assertion that it was illegitimate to enact laws that are based in nothing more than a dislike of a class of people. In a sense the Court used this as an opportunity to rearticulate an anti-caste principle. Romer and Lawrence taken together shifted the treatment of us by them from the domain of criminalization, shunning, and shaming to tolerance. These cases stand for the proposition, among other things, that majoritarian revulsion of this minority cannot form the legitimate basis of our regulation by civil or criminal law.
4 2006] The Politics of Same-Sex Marriage Politics 239 Yet, as political scientist Wendy Brown argues in her forthcoming book on tolerance, 4 being tolerated is a liberal conceit that entails a set of dilemmas that may help us understand the complicated politics of same-sex marriage. Tolerance within liberalism works so long as that thing about you to be tolerated remains both private and individualized that is to say, so long as it does not make a political claim. And, of course, that is exactly what the demand for recognition of same-sex marriage amounts to a claim against the political, although articulated in the legal vernacular of rights. Justice Kennedy went to great lengths in his opinion in Lawrence to immunize the decision from the political casting it again and again as a dispute about private conduct that entailed nothing with respect to political recognition of same-sex sex or same-sex coupling. This inoculation, I suspect, has failed miserably. In the end, Justice Scalia was right Lawrence emboldened, inspired, and indeed enabled the political claim that the state could no longer refuse to recognize same-sex marriages. We should note, however, that the shift from decriminalization to recognition of same-sex partnerships requires more, or indeed something else than, an argument based on tolerance. Those who advocate for same-sex marriage are not asking that the majority bracket the disgust they hold for us so long as our sex is privatized and individualized. Rather, this is a public argument of a collective nature we want to be included in We the People. What s wrong with that? Well, just as the argument from tolerance comes at a price, so too does this one. As I have argued elsewhere, the rights-bearing subject of the lesbigay rights movement has now become the couple a We. It is a domesticated couple, and it is a couple that seeks a particular location within a genealogical kinship grid that sutures the couple to the nation. The project of inclusion in We the People presupposes, not necessarily, but in this particular movement, a certain kind of citizen-subject who becomes politically legible by and through a particular form of intimate affiliation. Of course, the citizen-subjects who have signed up for this form of enfranchisement are called upon to enact a peculiar set of public performances: lining up in pairs outside of City Hall the moment the Mayor deems the marriage registry open to homo business; placing your wedding announcement in the New York Times; posing model homo families our perfect plaintiffs before the media. I must confess an unease with what feels like the deployment of children as props that attest to our normalcy, a repudiation of our perversion. To my mind this sort of enfranchisement swerves dangerously in the direction of a kind of franchise. The creation of new gay publics outside City Hall, on the pages of the New York Times, and on the six o clock news are not exactly the gay publics the drag queens at Stonewall had in mind. 4 WENDY BROWN, REGULATING AVERSION: TOLERANCE IN THE AGE OF IDENTITY AND EMPIRE (forthcoming 2006).
5 240 Columbia Journal of Gender and Law [Vol. 15:1 It s a tired argument by now that the problem with these staged spectacles of homo kinship is that they are boring, though of course they are. How can it be that in such a short period of time the spectacularity of gayness has become so dull? Consider Ellen DeGeneres only a few short years ago a trail-blazer as the first out lesbian character on television whose very being was regarded as a threat to all things descent and christian, now a cute and innocuous daytime talk show host whose lesbianism is less her signature than are her sneakers. Perhaps this is best understood as the consequence of an increasingly successful civil rights movement as the claims of the movement gain greater acceptance in the larger society those claims become less alarming. Or maybe it is the other way around diminished alarm motivates political possibility. More radical critics would argue that the same-sex marriage movement has accelerated and privileged the more assimilationist aspects of the gay rights struggle. 5 What we are witnessing in the gay community, I would argue, is a radical substitution or transformation of the nature of homosexual desire. Into the psychic space created by decriminalization has rushed a desire for governance, a desire for recognition recognition by legal and state authority. The de jure refusal to all gay people to satisfy this desire has formed the basis of the new civil rights claims made on behalf of the community. Take, for instance, the complaint filed in the case challenging New York s marriage law. Lambda Legal the preeminent gay and lesbian rights legal organization argued on behalf of the five same-sex couples who sought to be married that the marriage law denied Lauren Abrams and Donna Freeman-Tweed s right of their families to have the recognition... that heterosexuals have. They want to be able to say to their children, Your parents are married. 6 Plaintiffs Douglas Robinson and Michael Elsasser, a male couple who have been together for seventeen years and have two sons, want the public recognition of their commitment... that comes with legal marriage. 7 Mary Jo Kennedy and Jo-Ann Shain want to express their love and commitment through civil marriage.... Their daughter, too, wants to see her mothers marry and for their loving relationship to be accorded the same respect and recognition as those of her friends married parents. 8 The complaint in this case is interesting for the primacy it gives to the harm of non-recognition; indeed, non-recognition lies at the core of the 5 See, e.g., MICHAEL WARNER, THE TROUBLE WITH NORMAL (1999). 6 First Amended Complaint at 5, Hernandez v. Robles, 794 N.Y.S.2d 579 (N.Y. Sup. Ct. 2004) (No /2004), available at 7 Id. at 6. 8 Id. at 6-7.
6 2006] The Politics of Same-Sex Marriage Politics 241 discriminatory harm at stake in this and almost all the other marriage cases. Notice that in two short years the central civil rights injury articulated by the gay community has shifted from one of mis-recognition, i.e., the regulation and legal categorization of same-sex sex as criminal, to a claim of non-recognition. Justice Albie Sachs, writing for the South African Constitutional Court in the Fourie case, described it as the tangible damage to same-sex couples... obliged to live in a state of legal blankness. 9 Virtually overnight we have gone from hiding in the bushes in parks or in bathrooms at rest areas desperately trying to avoid the law, to standing in town squares and on courthouse steps desperately waiving our hands in the air trying to get law s attention. Could it be that we are suffering what we might call a Moynihan moment? 10 Sectors of our community have argued that our unmarriagability inflicts a kind of harm on our children in terms that echo the manner in which familial pathology and illegitimacy were thought to cause injury to African-American children in the Moynihan Report. The Human Rights Campaign s report, The Cost of Marriage Inequality to Children of Same-Sex Parents, does just this, arguing that until all states grant equal marriage to same-sex couples, the children in these families will continue to be deprived of the security of being recognized as a legal family. 11 So, too, in a brief submitted in the case challenging New Jersey s ban on same-sex marriage, the American and New Jersey Psychological Associations argued that marriage can be expected to benefit the children of gay and lesbian couples by reducing the stigma currently associated with those children s status. Such stigma can derive from various sources. When same-sex partners cannot marry, their biological children are born out-of-wedlock, conferring a status that historically has been stigmatized as illegitimacy and bastardy. Although the social stigma attached to illegitimacy has declined in many parts of society, being born to unmarried 9 Minister of Home Affairs v. Fourie, CCT 60/04 72 (Dec. 1, 2005). 10 See Daniel Patrick Moynihan, The Negro Family: The Case for National Action, in THE MOYNIHAN REPORT AND THE POLITICS OF CONTROVERSY (Lee Rainwater & William L. Yancey eds., 1967) [hereinafter Moynihan Report]. The Moynihan Report was written by Daniel Patrick Moynihan when he was an assistant secretary of labor in the Johnson administration. He argued that the most fundamental problem facing the Black community in the United States was the tangle of pathology produced by the community s low rates of long-term marriages and high rates of promiscuity, illegitimacy, and matriarchal, femaleheaded households. 11 LISA BENNETT & GARY J. GATES, THE COST OF MARRIAGE INEQUALITY TO CHILDREN AND THEIR SAME-SEX PARENTS: A HUMAN RIGHTS CAMPAIGN FOUNDATION REPORT 13 (2004), available at kids_doc_final.pdf.
7 242 Columbia Journal of Gender and Law [Vol. 15:1 parents is still widely considered undesirable. As a result, children of parents who are not married may be stigmatized by others, such as peers or school staff members. This stigma of illegitimacy will not be visited upon the children of same-sex couples when those couples can legally marry. 12 Nancy Polikoff, long a sceptic of the revolutionary potential of same-sex marriage, 13 has recently written a very thoughtful critique of the intersecting arguments made by both proponents and opponents of samesex marriage who piggyback on the polarizing and politically charged assertion that children do best when their parents are married to persuade the public and the courts that lesbian and gay couples be allowed to marry. 14 Polikoff rightly observes that [w]hile advocates for lesbian and gay parents once saw themselves as part of a larger movement to promote respect, nondiscrimination, and recognition of diverse family forms, some now appear to embrace a privileged position for marriage. They thus abandon a longstanding commitment to defining and evaluating families based on function rather than form, distancing themselves from single-parent and divorced families, extended families, and other stigmatized childrearing units. 15 The Moynihan-esque flavor of some of the arguments made by the proponents of same-sex marriage is troubling for additional reasons as well. While the zone of the non-married parent is portrayed as a site of pathology, stigma, and injury to children, marriage is figured as the ideal social formation in which responsible reproduction can and should take place unfortunately, in increasingly racialized terms. While our side is arguing 12 Brief for American Psychological Association and New Jersey Psychological Association as Amici Curiae in Support of Plaintiffs-Appellants at 51-52, Lewis v. Harris, 875 A.2d 259 (N.J. Super. Ct. 2005) (No. A T5), available at William Eskridge made a similar argument in The Relational Case for Same-Sex Marriage, in JUST MARRIAGE 60 (Mary Lyndon Shanley ed., 2004) ( To put the matter more positively, by denying gay men and lesbians the right to marry, the state is foregoing an opportunity to reinforce the stability of the two-parent household for the children of those relationships. ). 13 See, e.g., Nancy Polikoff, We Will Get What We Ask For: Why Legalizing Gay and Lesbian Marriage Will Not Dismantle the Legal Structure of Gender in Every Marriage, 79 VA. L. REV (1993); Nancy D. Polikoff, Ending Marriage as We Know It, 32 HOFSTRA L. REV. 201 (2003); Nancy D. Polikoff, Making Marriage Matter Less: The ALI Domestic Partner Principles Are One Step In The Right Direction, 2004 U. CHI. LEGAL F. 353 (2004). 14 Nancy D. Polikoff, For the Sake of All Children: Opponents and Supporters of Same-Sex Marriage Both Miss the Mark, 8 N.Y. CITY L. REV. 901, 901 (forthcoming 2006). 15 Id. at 918.
8 2006] The Politics of Same-Sex Marriage Politics 243 how harmful it is to children of lesbigay parents that their parents cannot marry, their side claims, quite often successfully, that the structure, responsibilities, and boundaries of marriage render it the proper, if not divine, site for the bearing and rearing of children. A recent New York intermediate appellate court so held in Hernandez v. Robles: 16 The legislative policy rationale is that society and government have a strong interest in fostering heterosexual marriage as the social institution that best forges a linkage between sex, procreation and child rearing. It systematically regulates heterosexual behavior, brings order to the resulting procreation and ensures a stable family structure for the rearing, education and socialization of children (Goodridge, 440 Mass. at 381, 798 N.E.2d at 995 [Cordy, J., dissenting]). Marriage promotes sharing of resources between men, women and the children that they procreate; provides a basis for the legal and factual assumption that a man is the father of his wife s child via the legal presumption of paternity plus the marital expectations of monogamy and fidelity; and creates and develops a relationship between parents and child based on real, everyday ties. It is based on the presumption that the optimal situation for child rearing is having both biological parents present in a committed, socially esteemed relationship.... It sets up heterosexual marriage as the cultural, social and legal ideal in an effort to discourage unmarried childbearing and to encourage sufficient marital childbearing to sustain the population and society; the entire society, even those who do not marry, depend on a healthy marriage culture for this latter, critical, but presently undervalued, benefit. 17 An Arizona appeals court made similar findings in Standhardt v. Superior Court, 18 as did an Indiana appeals court in Morrison v. Sadler, which found that the State could legitimately create the institution of opposite-sex marriage, and all the benefits accruing to it, in order to encourage malefemale couples to procreate within the legitimacy and stability of a state-sponsored relationship and to discourage unplanned, outof-wedlock births resulting from casual intercourse.... [E]ven where an opposite-sex couple enters into a marriage with no intention of having children, accidents do happen, or persons often change their minds about wanting to have children. The 16 Hernandez v. Robles, 2005 N.Y. Slip Op (N.Y. App. Div. 1st Dep t Dec. 8, 2005) (No /04). 17 Id. (second citation omitted) P.3d 451, (Ariz. Ct. App. 2003).
9 244 Columbia Journal of Gender and Law [Vol. 15:1 institution of marriage not only encourages opposite-sex couples to form a relatively stable environment for the natural procreation of children in the first place, but it also encourages them to stay together and raise a child or children together if there is a change in plans. 19 This is what the Indiana court termed responsible procreation. Same-sex couples, on the other hand, do have children, but never by mistake. The effort and planning that goes into conception or adoption for gay couples assures that they are being responsible when they decide to parent. So, gay couples do not need the governance structure of marriage in order to exercise responsible procreation because they cannot procreate by accident nature and the planning it requires renders them more responsible. Not far behind the natalism adopted by these courts is a racist ideology unashamedly articulated by Maggie Gallagher in papers she has submitted in the same-sex marriage cases. 20 Her argument runs like this: low fertility rates among Europeans and people of European descent threaten the continued viability of these cultures. Society needs an institution that will encourage white people to have children. Marriage is that institution. Low fertility rates are linked to the movement away from marriage. Thus, if white people in developed countries are not to become extinct, they must marry and have children. 21 Surely the Lawrence decision need not have inaugurated a politics of, or desire for, recognition in the gay community but curiously it has, and it did so immediately. What I lament is a failure of the movement s leaders to appreciate the creative political possibilities that the middle ground between criminalization and assimilation might have offered up. Leo Bersani has expressed sadness at the thought that homosexuals would quickly and easily settle for an intersubjectivity cleansed of all fantasmatic curiosity. 22 We have, for now, though I hope not permanently, lost the opportunity to explore the possibilities of a lawless homosexuality. What would that be? How would it know itself? How would we know ourselves? What have been the costs of refusing the political and psychic uncertainty N.E.2d 15, (Ind. Ct. App. 2005). 20 Maggie Gallagher is the President of the Institute for Marriage and Public Policy whose motto is strengthening marriage for a new generation. 21 See e.g., Declaration of Maggie Gallagher in Support of CCF s Motion for Summary Judgment, Thomasson v. Newsom, No (Super. Ct. San Francisco Mar. 11, 2004). 22 See LEO BERSANI, HOMOS (1995).
10 2006] The Politics of Same-Sex Marriage Politics 245 of refusing to immediately articulate and legally nail down what it means to be gay? What will happen to homo desire and homo sex when they run through the particular circuitry of fantasy sutured to marriage? What kinds of fantasmatic curiosities will become foreclosed or will wither particularly as our curiosity get channeled, indeed, tamed, in the direction of the familiar, the safe, and the respectable the nuclear family. Let me be clear; I am not saying that the nuclear family is, as a matter of fact, always familiar, safe, and comfortable, although it certainly is respectable; but, it is all these things on a fantasmatic level. Finally, what kind of sexual publics and what forms of sociability might be made possible by a homosexuality that strategically sidesteps robust legal recognition and regulation? What renders the problem of non-recognition a kind of harm rather than an interesting opportunity is a particular combination of identity and desire an identification with a form of normative kinship and more importantly an identification with the state. I find it rather astonishing that the core value of gay and lesbian politics would transform so quickly into a powerful desire for recognition by and identification with the state. That this transformation would be accomplished in such short order after our relationship to the state was one of mutual contempt, distrust, and fear renders it all the more hard to metabolize. I have watched with both awe and fear how in a few years the lesbian subject has transformed from being constituted by an antagonistic relationship to law to a desperate plea for law s embrace. This transformation has manifest itself in a strategic, if not ideological, exchange of civil rights arguments based in privacy for those who assert a right to public recognition, legibility, and presence. Making reference to one of the most common formulations of the privacy principle in United States constitutional jurisprudence, 23 Justice Sachs wrote in the Fourie judgment that what the applicants in this matter seek is not the right to be left alone, but the right to be acknowledged as equals and to be embraced with dignity by the law. 24 Are private or public identities the only moves left to us? While I must confess no small measure of nostalgia for the fantasmatic possibilities that were enabled by being an outlaw in the 1970s and 1980s something my current queer students cannot and do not 23 In Olmstead v. United States, 277 U.S. 438, 478 (1928), Justice Brandeis famously identified a privacy principle in the constitution: The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man s spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the government, the right to be let alone -- the most comprehensive of rights and the right most valued by civilized men. Id. 24 Minister of Home Affairs v. Fourie, CCT 60/04 77 (Dec. 1, 2005).
11 246 Columbia Journal of Gender and Law [Vol. 15:1 know my sense of alienation from the contemporary infatuation with the state cannot be explained only by reference to that nostalgia. I think it is also important to consider how the shift from tolerance to recognition is, in fundamental ways, a governance project governance in the sense that we seek to be included within a community of the governed on terms equal to others in that political community, but governance in another sense a kind of governance of the self that is entailed in being subject to law. When we petition the state to recognize us, that recognition demands a form of address in this case that form is one of kinship. The way the project has been set up, to be governed by the state not as abject criminals, but as citizen-subjects, presupposes the internalization of a set of norms of self-governance self-governance within the couple and governance of the couple by the state. This is how the subject of gay rights political discourse has emerged as a couple. Hand in hand we approach the state arguing for inclusion in We the People. You see this in the legal papers filed in the marriage cases: they make a demand to be governed by the rights and responsibilities of marriage laws duties of support, monogamy, fidelity, longevity til death do us part. These cases articulate a yearning to be governed by and within the surveillance of the state. Yet the facts of the cases make clear that these parties have undertaken a form of extra-legal governance for some time. They have been together for five, ten, twenty years, have supported each other through sickness and health, good times and bad, have assumed joint responsibility for the rearing of children all in the shadow of law. Indeed, the legal papers in the cases narrate and attest to the degree to which these are couples who have performed an idealized form of self-governance extralegally that, so the claim goes, entitles them to the rights of respect and recognition that legal marriage confers. For the plaintiffs in these cases, there is an added value to governance within marriage that the same form of governance in law s shadow somehow lacks. This form of recognition the community now craves exacts a dear price. As lesbigay people are herded into a particular form of sociability a narrow conception of family we have lost an interest in, if not now disavow, other forms of sociality that a generation ago we celebrated. The queer critique of the liberal individual sought to explore new modes of affect and sociality. We had a thick account of stranger sociability, of intimacy, of desire, and of ways in which the political I would not presuppose a domestic and domesticated affiliation with a You, thereby collapsing into a We. To my ear, the loss of the concept of me into a conjugal, domesticated we at times echoes a longing for a kind of contemporary coverture, whereby one or both previously individuated subjects are dissolved into a joint legal and economic unit by and through the institution of marriage. In a sense, it is the state s refusal to extend the privilege of legal merger to same-sex couples, and the insistence that we remain separate and individuated individuals, that gets figured as the injury
12 2006] The Politics of Same-Sex Marriage Politics 247 of the denial of same-sex marriage. Not every advocate of same-sex marriage insists on this kind of coverture qua civil right, but enough of the arguments in this domain emit such an odor that it gives me great pause. 25 The cost of substituting a desire for governance by the state for other forms of desire is evident in many sectors of the lesbigay community and is not merely an academic concern, but rather one of life and death. I live in New York City, where the discovery of a single case of virulent new HIV was announced by the City s Health Department in the last year. Both the virus and those who carry it are portrayed as resistant to treatment. The story we are told is that the gay man who carried this virus used crystal meth and then had indiscriminate unsafe sex. This man was putting the whole community at risk by his irresponsibility. The executive director of Gay Men s Health Crisis, the largest and oldest HIV treatment and advocacy organization in the country, joined the outcry endorsing aggressive forms of public health interventions that only a few years ago were politically unthinkable and implausible. She argued that we are beyond the first days of the AIDS epidemic. We now know that we are part of a community that must take care of one another, and that we owe one another a duty of care not to misbehave. In essence, the argument reduces to: these are bad gays, and their bad behavior has caused a dangerous mutation of the virus, and their bad behavior violates a community norm. What she is arguing is that our community has evolved along with the HIV virus. We are now interconnected to one another in a kinship grid and that grid imposes reciprocal responsibilities on us all. But of course this problem is much more complicated. As I listen to how this new crisis has unfolded in New York, I get the sense that the community no longer has a vocabulary that can address a public health problem as something other than a problem of kinship. We have no ready analysis that takes as one of its premises the value and meaning of stranger sociability, of sex outside of kinship, or of promiscuity. There is no evidence offered that crystal meth or promiscuous sex have caused the mutation of the virus. We have a single case of a single man who liked sex and liked lots of it. Yet kinship is not a rich enough political value or reliable enough public health variable to adequately address the failure to engage in protected sex. But this is where we are politically. Make no mistake, this problem at this moment is a political, not a legal problem. Our overwhelming investment in the politics of kinship has resulted in the atrophying of an ability to critically and creatively think sexuality outside the domestic couple. We have lost that vocabulary, and as a result all we have to fall back on is the vilification of our new Patient Zero for his violation of the norms of today s gay community characterized by reciprocal duties and self-governance. 25 I must thank Jeannine DeLombard for suggesting the analogy to coverture.
13 248 Columbia Journal of Gender and Law [Vol. 15:1 The final concern that I want to highlight in this Essay relates to the manner in which the politics of same-sex marriage figures in larger national and international politics. I actually do not think that gay marriage won the election for George Bush, but what it did do was distract our attention away from other issues of much greater concern Abu Ghraib, Guantanamo, and the war in Iraq, to name only a few. The national debate about morals cut off national discussion about increasing the security state, sexuality as weapons of war, and the militarization of foreign policy. In similar fashion, Terry Schaivo was used to articulate a culture of life in the face of a kind of necropolitics and the implementation of a radical if not permanent state of exception in the Schmittian sense. I lament how the gay and lesbian community fails to link up to these larger political issues and rather passively allows the same-sex marriage debate to be used as a distraction. All the while installing a new form of homo desire a desire for a relationship to the nation, for recognition by the nation. Not only has the gay community acquired a desire for the state, but, as Judith Butler puts it, the push for marriage articulates a desire for the state s desire in the form of state-sanctioned desire. In a period of rising United States nationalism and its more even evil twin imperialism, I find it quite troubling that a formally radical movement of outlaws and outsiders would succumb so quickly and entirely to becoming what the former New Jersey Governor Jim McGreevey called himself: Gay Americans.
Farzad Family Law Scholarship 2014 Should the right to marry for same-sex couples become a federal constitutional right by amendment to the United States Constitution or remain a State issue? The United
IN RE MARRIAGE CASES (California): 2008 These cases present the issue of the legality of gay marriage bans, in the context of previous State domestic partnership (CA) or civil union (CT) Statutes, under
Lake James H. Perriguey, OSB No. 983213 email@example.com LAW WORKS LLC 1906 SW Madison Street Portland, OR 97205-1718 Telephone: (503) 227-1928 Facsimile: (503) 334-2340 Lea Ann Easton, OSB No. 881413
The 14 th Amendment and Same-Sex Marriage Do laws and constitutions that prohibit same-sex marriage violate the 14 th Amendment? Marriage is more than just a union between two people who love each other
MARRIAGE FOR SAME-SEX COUPLES IN CALIFORNIA Frequently Asked Questions Last Updated: July 9, 2015 NOTE: This document is intended to provide information for same-sex couples who are considering getting
The Court Has Spoken: Case Law Update Texas Case Law Mara Flanagan Friesen Deputy Director for Child Support Texas Office of the Attorney General The Office of the Attorney General of Texas v. Scholer,
Supplementary Submission to the Human Rights and Equal Opportunity Commission Same-Sex: Same Entitlements Australian Lawyers for Human Rights Inc (ALHR) is a national network of Australian lawyers active
EQUAL MARRIAGE RIGHTS FOR SAME-SEX COUPLES [Voted by the Directorate of the UCC Office for Church in Society, November 16, 1996 1 ] Background Ideas about marriage have shifted and changed dramatically
Brought to you by Alamo Insurance Group Supreme Court Strikes Down DOMA, Clears Way for Same-Sex On June 26, 2013, the U.S. Supreme Court announced decisions in two significant cases regarding laws affecting
CHILD PLACING AGENCY RELIG. CONFLICT H.B. 4188 (H-2), 4189, & 4190: ANALYSIS AS REPORTED FROM COMMITTEE House Bill 4188 (Substitute H-2 as reported without amendment) House Bills 4189 and 4190 (as reported
Rev. Rul. 2013-17 ISSUES 1. Whether, for Federal tax purposes, the terms spouse, husband and wife, husband, and wife include an individual married to a person of the same sex, if the individuals are lawfully
REPRESENTING SAME-SEX FAMILIES IN CALIFORNIA AFTER WINDSOR AND PERRY 2014 Deborah H. Wald As published in the Journal of the California Association of Certified Family Law Specialists (ACFLS), Winter 2014,
In Support of Equal Marriage Rights for All [Adopted at the Twenty-fifth General Synod of the United Church of Christ on July 4, 2005] Beloved, let us love one another, because love is from God; everyone
Gay Marriage In many countries around the world have talked about gay marriage a long time, but it is hard to make a decision whether gay marriage should be legal. There are some reasons why some people
Goodridge, et al. v. Department of Public Health, State of Massachusetts 440 Mass. 309 (2003) (Abridged by Instructor) MARSHALL, C.J. Marriage is a vital social institution. The exclusive commitment of
Spain, long dominated by autocratic rulers and adherence to a conservative Roman Catholic orthodoxy, excited the imaginations of lesbians and gay men worldwide when in 2005 it became one of the first countries
Name of Country and Jurisdiction: California, United States. What forms of legally recognized relationships are available? 2. What are the requirements to be able to enter into the above relationships?
THE BASICS Getting a Divorce in New York State Either the wife or the husband can ask a Court for a divorce. In this booklet, we say that the wife is the person who will go to Court to request a divorce
Vol. 1:1 STANFORD JOURNAL OF LEGAL STUDIES 20 Beleaguered Families: Identity Ascription and the Politics of Adoption A Commentary on a Panel Discussion by Richard Banks and Joan Hollinger * Sean Jaquez
1 1 1 1 MARK R. ZMUDA, v. IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON IN AND FOR KING COUNTY Plaintiff, CORPORATION OF THE CATHOLIC ARCHBISHOP OF SEATTLE d.b.a. THE ARCHDIOCESE OF SEATTLE, and EASTSIDE
Gay & Lesbian Advocates & Defenders 30 Winter Street, Suite 800 Boston, MA 02108 Phone: 617.426.1350 or 800.455.GLAD Fax: 617.426.3594 Website: www.glad.org Legal Issues for New York Same-Sex Couples Who
FREQUENTLY ASKED QUESTIONS FROM COUPLES WHO ARE CONSIDERING GETTING MARRIED IN SAN FRANCISCO On February 12, 2004, the county clerk in San Francisco began issuing marriage licenses to same-sex couples,
The Conservative Case for Gay Marriage Why same-sex marriage is an American value. By Theodore B. Olson NEWSWEEK Published Jan 9, 2010 From the magazine issue dated Jan 18, 2010 Together with my good friend
A BRIEF SUMMARY OF FAMILY LAW AS IT AFFECTS LGBT (LESBIAN, GAY, BISEXUAL, AND TRANSGENDERED) PERSONS IN FLORIDA By Michael E. Morris, Attorney at Law Updated January 2013 First, this is a summary of some
BRIEFING JUNE 2013 UNITED STATES SUPREME COURT ISSUES RULINGS ON DOMA AND PROPOSITION 8 CASES On June 26, 2013, the United States Supreme Court issued decisions in two cases affecting the legal definition
MARRIAGE RIGHTS I N I L L I N O I S FOREWORD At Equality Illinois, we work to promote a fair and unified Illinois where everyone is treated equally with dignity and respect and where all people live freely
GIBBS LAW FIRM, P.A. 5666 SEMINOLE BOULEVARD, SUITE TWO TELEPHONE: (727) 399-8300 SEMINOLE, FLORIDA 33772 FACSIMILE: (727) 398-3907 January 4, 2011 VIA EMAIL firstname.lastname@example.org Mr. Kevin McCoy West Virginia
300 Appendix A Advocate for Women s Rights Using International Law The United Nations (UN) brings together almost every government in the world to discuss issues, resolve conflicts, and make treaties affecting
In the September 2007 issue of Family Law News we published an article that analyzed the Court of Appeals ruling on gestational surrogacy in Roberto d.b. That article is printed for you again, this time
Provided By Touchstone Consulting Group Benefits for Same-sex Couples and A significant number of U.S. companies provide benefits, such as health insurance coverage, for their employees domestic partners
Civil Unions and Estate Planning after DOMA Ruling Erica Johnson, Esq. Ambler & Keenan, LLC 950 S. Cherry St. Suite 1650 Denver, CO 80246 303-321-1267 Erica@ambler-keenan.com www.ambler-keenan.com B.S.
14 Parentage, Adoption, and Child Custody Sheri E. Cohen Hon. Margaret S. Johnson Thomas M. Pinkerton, Jr. Excerpts of the Parentage section only. II. PARENTAGE A. Understanding Parentage Issues in Domestic
Community Legal Information Association of Prince Edward Island, Inc. Legal Information for Same Sex Couples People in same sex relationships often have questions about their rights and the rights of their
Position Paper on Adoption Law Reform March 2013 Department of Health and Human Services Introduction What is adoption? Adoption is the legal process which permanently transfers all the legal rights and
Case 2:13-cv-00217-RJS Document 16 Filed 08/12/13 Page 1 of 14 PHILIP S. LOTT (5750) STANFORD E. PURSER (13440) Assistant Utah Attorneys General JOHN E. SWALLOW (5802) Utah Attorney General 160 East 300
SAME-SEX ADOPTION LAWS BY STATE The issue of adoption by same-sex couples has moved to the forefront in recent years. Liberty Counsel was instrumental in upholding the constitutionality of Florida s ban
CIVIL UNIONS & ESTATE PLANNING AFTER THE DOMA RULING ERICA L. JOHNSON 950 South Cherry Street, Suite 1650 Denver, Colorado 80246 303-407-1542 www.ambler-keenan.com ESTATE PLANNING PROBATE TRUST ADMINISTRATION
Annex 1 Primary sources for international standards 1. The United Nations The 1948 Universal Declaration of Human Rights Article 20 1. Everyone has the right to freedom of peaceful assembly and association.
MOVING MARRIAGE FORWARD BUILDING MAJORITY SUPPORT FOR MARRIAGE A REPORT FROM FREEDOM TO MARRY Our nation is engaged in a crucial conversation about why marriage matters. More than 100 million Americans
MARRIAGE vs. REGISTERED PARTNERSHIP: FULL EQUALITY OR SEGREGATION FOR SAME-SEX COUPLES? Robert Wintemute, Professor of Human Rights Law, King's College London "Against Sexual Apartheid: A ceremonial act
Breaking the silence united against domestic violence 29 th Council of Europe Conference of Ministers of Justice Report from Portugal Domestic violence is neither a recent phenomenon nor a problem pertaining
Homily for 4 th Sunday Easter, UW Newman, 04-29-12 The Good Shepherd is always seeking out his lost sheep. Our Lord says, I have other sheep that do not belong to this fold. These also I must lead, and
McCulloch v. Maryland 1819 Appellant: James William McCulloch Appellee: State of Maryland Appellant s Claim: That a Maryland state tax imposed on the Bank of the United States was unconstitutional interference
Materials Provided by Shelley Bishop and Matt Voorhees Same Sex Marriage & Related Issues in Missouri Program Description: A survey of the status of the law, same sex dissolution and custody issues, the
The Ohio State University Knowledge Bank kb.osu.edu Ohio State Law Journal (Moritz College of Law) Ohio State Law Journal: Volume 22, Issue 3 (1961) 1961 Automobile Liability Policy Held to Cover Stolen
BOSTON UNIVERSITY SCHOOL OF LAW Family Law, JD 814 A1 Exam #: Professor McClain Date: April 28, 2011 Format: Open-Book Time: 3 hours INSTRUCTIONS: 1. This is an open-book exam. You may use the casebook,
Supreme Court's landmark ruling legalizes gay marriage nationwide Reuters By Lawrence Hurley 6/26/2015 Supreme Court gay marriage ruling WASHINGTON, June 26 (Reuters) - The Supreme Court ruled on Friday
Principles in Collision: Labor Union rights v. Employee civil Rights Barry Winograd Arbitrator and mediator in Oakland, California Member of the National Academy of Arbitrators Adjunct faculty of the law
http://oac.cdlib.org/findaid/ark:/13030/kt658034cz No online items Finding aid of the National Gay and Lesbian Task Force Collection of Media Reports on Same-sex Marriage, 2004 General Election Lilly Insalata
NCA s Monthly Teleconference Series CARD Calls: Communicating About Research and Professional Development Defining Marriage in California: An Analysis of Public & Technical Argument Featured Speaker: Edward
Alison M. Smith Legislative Attorney June 9, 2009 Congressional Research Service CRS Report for Congress Prepared for Members and Committees of Congress 7-5700 www.crs.gov RL31994 Summary In 2003, state
Promoting Civil Unions to Undermine Marriage "A statement from the Catholic Conference of Illinois, representing the six dioceses of the Province of Chicago" Promoting Civil Unions Civil to Unions Undermine
THE FIELD POLL THE INDEPENDENT AND NON-PARTISAN SURVEY OF PUBLIC OPINION ESTABLISHED IN 1947 AS THE CALIFORNIA POLL BY MERVIN FIELD Field Research Corporation 601 California Street, Suite 900 San Francisco,
Moral Issues and Catholic Values: The California Vote in 2008 Proposition 8 October 2008 How the Survey Was Conducted Moral Issues and Catholic Values: The California Vote in 2008 Proposition 8 reports
KNOW YOUR RIGHTS KNOW YOUR RIGHTS A Guide for Trans and Gender Nonconforming Students KNOW YOUR RIGHTS: A GUIDE FOR TRANS AND GENDER NONCONFORMING STUDENTS Whether you re a girl who doesn t act like one,
NEW JERSEY LAW REVISION COMMISSION Final Report Relating to Civil Unions March 19, 2015 The work of the New Jersey Law Revision Commission is only a recommendation until enacted. Please consult the New
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral
Why is same-sex marriage important? The Equality Network is strongly of the opinion that the law should allow same-sex marriages, and, more generally, that marriage should be available to couples regardless
This is a publication of the Netherlands Ministry of Foreign Affairs FAQ Same-sex marriage 2010 1 1. Same-sex marriage 2. Alternative types of partnership 3. Conversion 4. Recognition abroad 5. Non-Dutch
The Honorable Scott Cyrway Maine State Senate 3 State House Station Augusta, ME 04333-0003 May 6, 2015 The Honorable Louis Luchini Maine House of Representatives 2 State House Station Augusta, ME 04333-0002
Role of husbands and wives in Ephesians 5 Summary The aim of this study is to help us think about relationships between men and women. It is meant to get us thinking about how we should behave in intimate
Feminism and the Same-sex Marriage Debate Author: Feargha Ní Bhroin April 2009 This paper surveys some of the major arguments within the feminist movement in the debate on same-sex marriage. It asserts
Marriage and the State Lesson Plan Student Objectives Understand the role of the state in regulating the institution of marriage and the rights and responsibilities of married people. Learn about the ancient
LABOR AND EMPLOYMENT LAW UPDATE FOR MAY 2016 LEAGUE OF CALIFORNIA CITIES CONFERENCE Timothy L. Davis Burke, Williams & Sorensen, LLP www.bwslaw.com OVERVIEW FOR 2016 UPDATE Labor Law Court Decisions Employment
THE BASICS Custody and Visitation in New York State This booklet answers common questions about custody and visitation when the parents cannot agree about who is responsible for taking care of the children.
ABA Section of Family Law 2012 Fall CLE Conference Philadelphia, October 2012 Surrogacy and Employment Law: When it s not your pregnancy is it your leave of absence? The UK position Colin Rogerson Solicitor
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT MARIAMA MONIQUE CHANGAMIRE ) SHAW, ) ) Appellant/Cross-Appellee,
IN THE COMMONWEALTH COURT OF PENNSYLVANIA Jay Ebersole, Administrator of the : Estate of Stephanie Jo Ebersole, : Deceased : : v. : No. 1732 C.D. 2014 : Argued: February 9, 2015 Southeastern Pennsylvania
August 2007 Presentation by ACRI Attorney Sharon Abraham-Weiss to the ICJ Eminent Jurists Panel on Terrorism, Counter-Terrorism, and Human Rights The Law of Citizenship and Entry into Israel (Temporary
Divorce for Same-Sex Couples Who Live in Non-Recognition States: A Guide For Attorneys BACKGROUND A growing number of states recognize marriages between same-sex spouses, or comprehensive registered domestic
FAQ EDUCATION What education will be required for Soldiers and their families when repeal occurs? Soldiers will be informed of the change in policy and expectations for behavior. Members involved in certain
Chapter 4: Same Sex Marriage and the First Amendment By Robert Brandon Anderson, Research Director Ages of experience have taught us that the commitment of a husband and wife to love and to serve one another
Case 4:15-cv-00399-RH-CAS Document 1 Filed 08/13/15 Page 1 of 17 KARI L. CHIN and DEBORAH E. CHIN, ALMA A. VEZQUEZ and YADIRA ARENAS, CATHERINA M. PARETO and KARLA P. ARGUELLO, and EQUALITY FLORIDA INSTITUTE,
Case:0-cv-0-VRW Document0 Filed0/0/0 Page of 0 Sonya D. Winner, (SBN 00) Bruce R. Deming (SBN 0) David M. Jolley (SBN ) John D. Freed (SBN ) COVINGTON & BURLING LLP One Front Street, Suite 00 San Francisco,
This article originally appeared in The Colorado Lawyer, Vol. 25, No. 26, June 1996. by Jeffrey R. Pilkington TORT AND INSURANCE LAW REPORTER Informal Discovery Interviews Between Defense Attorneys and
March 2004 Domestic Partner Benefits: Facts and Background (for a more recent version see February 2009 Facts from EBRI) g What is a domestic partnership and what proof of the relationship is required?
Michael Bailey 1 Shifting Sensibilities: Attitudes toward Same-sex Marriage, Past, Present and Future America is a large, diverse country with some three-hundred twenty million people. With that many people
Department 29 Superior Court of California County of Sacramento 720 Ninth Street Timothy M. Frawley, Judge Lynn Young, Clerk Thursday, August 7, 2008, 1:30 p.m. MARK A. JANSSON, as an official proponent
Adoption in Florida WHAT IS ADOPTION? Adoption is the legal procedure by which a child becomes, through court action, part of a family other than that of his or her birth parents. Adoption is a serious
HEALTH CARE RIGHTS AND TRANSGENDER PEOPLE March 2012 For the first time, the Affordable Care Act of 2010 banned sex discrimination in many health care facilities and programs. While we still desperately
FAMILY LAW Professor Franks Final Examination, Spring 2015 GENERAL INSTRUCTIONS 1. Carefully analyze the facts and grasp the issues in each question before beginning to write. Spend time reading the question
The CAFFA Connection Second Parent Adoption By Susan Frances, Esq. 2012, Vol. 39, No. 2 Second parent adoptions, also known as co-parent adoptions, are adoptions in which the parents are a lesbian or gay
INTRODUCTION INVESTIGATIONS GONE WILD: Potential Claims By Employees By: Maureen S. Binetti, Esq. Christopher R. Binetti, Paralegal Wilentz, Goldman & Spitzer, P.A. When can the investigation which may