Queering citizenship? Same-sex marriage and the state

GLQ

Volumn 11, Issue 2, 2005, Pages 171-204

  Brandzel, Amy L ^a  

^a NONE

Author keywords

[No Author keywords available]

Indexed keywords

EID: 34247674566     PISSN: 10642684     EISSN: None     Source Type: Journal    
DOI: 10.1215/10642684-11-2-171     Document Type: Article

References (108)

1. M. Jacqui Alexander, "Not Just (Any) Body Can Be a Citizen: The Politics of Law, Sexuality, and Postcoloniality in Trinidad and Tobago and the Bahamas," Feminist Review, no. 48 (1994): 5-23.
2. See M. Jacqui Alexander, "Erotic Autonomy as a Politics of Decolonialization: An Anatomy of Feminist and State Practice in the Bahamas Tourist Economy," in Feminist Genealogies, Colonial Legacies, Democratic Futures, ed. M. Jacqui Alexander and Chandra Talpade Mohanty (New York: Routledge, 1997), 63-100;
3. Lauren Berlant, The Queen of America Goes to Washington City: Essays on Sex and Citizenship (Durham: Duke University Press, 1997);
4. Cathy J. Cohen, "Punks, Bulldaggers, and Welfare Queens: The Radical Potential of Queer Politics?" GLQ 3 (1997): 437-65;
5. Jigna Desai, Beyond Bollywood: The Cultural Politics of South Asian Diasporic Film (New York: Routledge, 2004);
6. Lisa Duggan, "Making It Perfectly Queer," in Sex Wars: Sexual Dissent and Political Culture, ed. Lisa Duggan and Nan D. Hunter (New York: Routledge, 1995), 155-72;
7. Duggan, "Queering the State," Social Text, no. 39 (1994): 1-14;
8. David L. Eng, "Out Here and Over There: Queerness and Diaspora in Asian American Studies," Social Text, nos. 52-53 (1997): 31-52;
9. and Michael Warner, introduction to Fear of a Queer Planet: Queer Politics and Social Theory, ed. Michael Warner (Minneapolis: University of Minnesota Press, 1993), vii-xxxi.
10. These two camps are not mutually exclusive, however, and I address the problematics of classifying and distinguishing them as distinct later in the essay. By gay and lesbian politics I refer to the positions of both scholars and activists who attempt to assert gay and lesbian rights by legal mechanisms. By queer theorists I mean those scholars who assert an antinormative sexual politics.
11. I do not use the term queer here as an umbrella term for gay, lesbian, bisexual, and transgender people. I use it in the spirit of queer theorists who argue that to be queer is to be outside and/or in opposition to the normative regimes of sexuality, which might include people who identify as gay, lesbian, bisexual, and transgender, but not necessarily or exclusively.
12. See Nancy F. Cott, "Giving Character to Our Whole Civil Polity: Marriage and the Public Order in the Late Nineteenth Century," in U.S. History as Women's History: New Feminist Essays, ed. Linda K. Kerber, Alice Kessler-Harris, and Kathryn Kish Sklar (Chapel Hill: University of North Carolina Press, 1995), 107-21;
13. Cott, "Marriage and Women's Citizenship in the United States, 1830-1934," American Historical Review 103 (1998): 1440-74;
14. and Cott, Public Vows: A History of Marriage and the Nation (Cambridge, MA: Harvard University Press, 2000).
15. Rogers M. Smith, Civic Ideals: Conflicting Visions of Citizenship in U.S. History (New Haven: Yale University Press, 1997), 14.
16. Linda Bosniak, "Universal Citizenship and the Problem of Alienage," Northwestern University Law Review 94 (2000): 963.
17. Ian F. Haney López, White by Law: The Legal Constructions of Race (New York: New York University Press, 1996). Of the sixty-two reported prerequisite cases, not one of the claimants was from Europe. Rather, the claimants were identified as "immigrants" and/or "aliens" from China, Burma, Japan, Syria, India, the Philippines, Afghanistan, Yemen, Saudi Arabia, Mexico, and South America.
18. See Neil Gotanda, "'Other Non-Whites' in American Legal History: A Review of Justice at War," Columbia Law Review 85 (1985): 1186-92;
19. Gotanda, "Race, Citizenship, and the Search for Political Community among 'We the People': A Review Essay on Citizenship without Consent," Oregon Law Review 76 (1997): 233-60;
20. Lisa Lowe, Immigrant Acts: On Asian American Cultural Politics (Durham: Duke University Press, 1996);
21. Natsu Taylor Saito, "Model Minority, Yellow Peril: Functions of 'Foreignness' in the Construction of Asian American Legal Identity," Asian Law Journal 4 (1997): 71-96;
22. and Leti Volpp, "'Obnoxious to Their Very Nature': Asian Americans and Constitutional Citizenship," Asian Law Journal 8 (2001): 71-88.
23. Indian General Allotment Act of 1887 (Dawes Severalty Act), chap. 119, 24 Stat. 388 (1887), amended by 25 U.S.C. § 331.
24. Plessy v. Ferguson, 163 U.S. 537, 561 (1896).
25. Quoted in Nira Yuval-Davis, "Women, Citizenship, and Difference," Feminist Review, no. 57 (1997): 69.
26. See also Will Kymlicka and Wayne Norman, "Return of the Citizen: A Survey of Recent Work on Citizenship Theory," in Theorizing Citizenship, ed. Ronald Beiner (Albany: State University of New York Press, 1995), 283-322.
27. See Gotanda, "Race, Citizenship, and the Search for Political Community"; Kenneth L. Karst, Belonging to America: Equal Citizenship and the Constitution (New Haven: Yale University Press, 1989);
28. Karst, "Citizenship, Law, and the American Nation," Indiana Journal of Global Legal Studies 7 (2000): 595-601;
29. Smith, Civic Ideals;
30. Peter J. Spiro, "The Citizenship Dilemma," Stanford Law Review 51 (1999): 597-640;
31. and Nira Yuval-Davis and Prina Werbner, eds., Women, Citizenship, and Difference (New York: Zed, 1999).
32. See Richard Delgado, ed., Critical Race Theory: The Cutting Edge (Philadelphia: Temple University Press, 1995);
33. Gotanda, "Race, Citizenship, and the Search for Political Community"; Kevin R. Johnson, "Race, the Immigration Laws, and Domestic Race Relations: A 'Magic Mirror' into the Heart of Darkness," Indiana Law Journal 73 (1998): 1111-60;
34. Saito, "Model Minority, Yellow Peril"; and Enid Trucios-Haynes, "The Legacy of Racially Restrictive Immigration Laws and Policies and the Construction of the American National Identity," Oregon Law Review 76 (1997): 369-424.
35. Johnson, "Race, the Immigration Laws, and Domestic Race Relations," 1116.
36. Cott, "Giving Character to Our Whole Civil Polity," 108, 121, 107, 121.
37. Carole Pateman, The Sexual Contract (Stanford: Stanford University Press, 1988).
38. See Amy Dru Stanley, From Bondage to Contract: Wage Labor, Marriage, and the Market in the Age of Slave Emancipation (Cambridge: Cambridge University Press, 1998);
39. Linda K. Kerber, No Constitutional Right to Be Ladies: Women and the Obligations of Citizenship (New York: Hill and Wang, 1998);
40. Cott, "Marriage and Women's Citizenship"; and Cott, Public Vows.
41. On whether or not a woman automatically held the citizenship status of her husband see the debate between Kerber, No Constitutional Right to Be Ladies, and Cott, "Marriage and Women's Citizenship." The racial prerequisites referred to here included "free white" status and "African descent." For more information on the racial prerequisites see López, White by Law.
42. Cott, "Marriage and Women's Citizenship," 1461.
43. See Candice Lewis Bredbenner, A Nationality of Her Own: Women, Marriage, and the Law of Citizenship (Berkeley: University of California Press, 1998);
44. and Cott, "Marriage and Women's Citizenship."
45. African American women were also prosecuted, but much less often. The legal charges ranged from bigamy, adultery, and fornication to less egregious infractions of marital and intimacy practices. See Katherine Franke, "Becoming a Citizen: Reconstruction Era Regulation of African American Marriages," Yale Journal of Law and the Humanities 11 (1999): 251-309.
46. Ibid., 253.
47. An appeal to history and foundations is part of many civil rights issues. In regard to the debate on same-sex marriage, opponents often describe the "traditional" (read: opposite-sex, gender-hierarchical) family as the "foundation of society." In an interesting response to this argument, William Eskridge Jr. contends that same-sex marriage has a long history and has been prevalent in many cultures ("The History of Same-Sex Marriage," Virginia Law Review 79 [1993]: 1419-1514). Appeals to historical foundations are discussed in more detail below.
48. Alexander, "Not Just (Any) Body," 6.
49. Defense of Marriage Act, Pub. L. No. 104-199, 110 Stat. 2419 (1996). It is not a coincidence that the same Congress that passed DOMA also passed the 1996 Welfare Reform Act, thereby promoting and policing the proper marriages of some while disallowing the possibility of marriage for others.
50. Often referred to as the "choice of law" provision, this second part has been hotly debated by legal theorists attempting to decide whether or not it is necessary (since states can already refuse to recognize other states' laws) or a violation of the full faith and credit clause of the U.S. Constitution (since the intent of this clause is to ensure that an individual's rights do not end at the state border). See Brian Bix, "State of the Union: The States' Interest in the Marital Status of Their Citizens," University of Miami Law Review 55 (2000): 1-30;
51. Nancy J. Feather, "Defense of Marriage Acts: An Analysis under State Constitutional Law," Temple Law Review 70 (1997): 1017-36;
52. Andrew Koppelman, "Dumb and DOMA: Why the Defense of Marriage Act Is Unconstitutional," Iowa Law Review 83 (1997): 1-34;
53. and Jeffrey L. Resenberger, "Sex Marriages and the Defense of Marriage Act: A Deviant View of an Experiment in Full Faith and Credit," Creighton Law Review 32 (1998): 409-56.
54. White House, Office of the Press Secretary, "Marriage Protection Week, 2003," October 3, 2003, www.whitehouse.gov/news/releases/2003/10/ 20031003-12.html (accessed July 20, 2004).
55. H. J. Res. 56, 108th Cong., 1st sess. (2003); see also S. J. Res. 26, 108th Cong., 1st sess. (2003).
56. See Alliance for Marriage, "Senate Vote Is First Step in Democratic Debate AFM Intended to Create by Drafting Marriage Amendment," July 12, 2004, www.allianceformarriage.org (accessed July 20, 2004).
57. Loving v. Virginia, 388 U.S. 1, 12 (1967). For an excellent discussion of the historical context of same-sex-marriage case law see Peggy Pascoe, "Sex, Gender, and Same-Sex Marriage," in Is Academic Feminism Dead? Theory in Practice, ed. Social Justice Group at the Center for Advanced Feminist Studies, University of Minnesota (New York: New York University Press, 2000), 86-129.
58. At the time of the Loving decision, sixteen states had laws banning interracial marriage.
59. Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971).
60. The U.S. Supreme Court dismissed the appeal (Baker v. Nelson, 409 U.S. 810 [1972]).
61. Baker, 191 N.W.2d at 186.
62. In the 1973 Kentucky case Jones v. Hallahan (501 S.W.2d 588 [Ky. 1973]), two female petitioners argued that the denial of same-sex marriage violated their freedom to associate and their freedom of religion. The court did not directly address these concerns but instead denied the petitioners' claim by deploying the trope of language. Since the challenged statute did not specifically define marriage, the court concluded from a variety of dictionaries that a union between one man and one woman was implied.
63. Singer v. Hara, 522 P.2d 1187, 1188 (Wash. Ct. App. 1974).
64. For an excellent discussion of how and when courts deploy social science literature see Peggy Pascoe, "Miscegenation Law, Court Cases, and Ideologies of 'Race' in Twentieth-Century America," in Sex, Love, Race: Crossing Boundaries in North American History, ed. Martha Hodes (New York: New York University Press, 1999), 464-90.
65. Maryland Laws, 1973, chap. 213, quoted in Pascoe, "Sex, Gender, and Same-Sex Marriage," 86.
66. Baehr v. Lewin, 852 P.2d 44 (Hawaii 1993).
67. Philip L. Bartlett II, "Recent Legislation: Same-Sex Marriage," Harvard Journal on Legislation 36 (1999): 581, 582.
68. Baehr, 852 P.2d at 55.
69. Paisley Currah, "Queer Theory, Lesbian and Gay Rights, and Transsexual Marriages," in Sexual Identities, Queer Politics, ed. Mark Blasius (Princeton: Princeton University Press, 2001), 185.
70. Littleton v. Prange, 9 S.W.3d 223 (Tex. App. 1999).
71. Littleton, 9 S.W.3d at 224.
72. Littleton, 9 S.W.3d at 231.
73. Littleton v. Prange, 531 U.S. 872 (2000).
74. The term orientation is intentional here, since part of the basis of the claim is that a person is born gay, lesbian, or bisexual. If homosexuality were a preference, this claim would be much more difficult to make.
75. Romer v. Evans, 517 U.S. 620 (1996).
76. Importantly, other states as well as numerous cities have antidiscrimination laws for gays, lesbians, and sometimes bisexuals and transgenders. For more information see Lambda Legal Defense and Education Fund, "Anti-Discrimination," www.lambdalegal.org/cgi-bin/iowa/issues/record? record=18 (accessed July 20, 2004).
77. Baker v. State of Vermont, 744 A.2d 864 (Vt. 1999).
78. Nan D. Hunter, "Marriage, Law, and Gender: A Feminist Inquiry," in Duggan and Hunter, Sex Wars, 109;
79. Thomas Stoddard, "Why Gay People Should Seek the Right to Marry," in Lesbians, Gay Men, and the Law, ed. William B. Rubenstein (New York: New, 1993), 401.
80. Pascoe, echoing Hunter's argument, stresses the potential of same-sex marriage to promote radical feminist politics of gender difference ("Sex, Gender, and Same-Sex Marriage").
81. Lambda Legal Defense and Education Fund, "Roadmap to Equality: A Freedom to Marry Educational Guide," March 12, 2002, www.lambdalegal.org/ cgi-bin/iowa/ documents/record?record = 1022 (accessed July 20, 2004).
82. Lambda Legal Defense and Education Fund, "Strolling Wedding Party Guide: Street Theater for Your Community," www.lambdalegal.org/binary-data/ LAMBDA_PDF/pdf/255.pdf (accessed July 20, 2004).
83. Paula Ettelbrick, "Since When Is Marriage a Path to Liberation?" in Rubenstein, Lesbians, Gay Men, and the Law, 401-6.
84. For elaborations of this argument see 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,'" Virginia Law Review 79 (1993): 1535-50;
85. Polikoff, "Why Lesbians and Gay Men Should Read Martha Fineman," American University Journal of Gender, Social Policy, and the Law 8 (2000): 167-76;
86. and Pascoe, "Sex, Gender, and Same-Sex Marriage."
87. Polikoff, "We Will Get What We Ask For";
88. Polikoff, "Why Lesbians and Gay Men";
89. Ettelbrick, "Since When Is Marriage?";
90. Pascoe, "Sex, Gender, and Same-Sex Marriage."
91. Polikoff, "We Will Get What We Ask For."
92. Interestingly, some queer theorists have positioned themselves in opposition not only to gay and lesbian political strategies but to gay and lesbian studies. They argue that they have different political and theoretical motives than those scholars they consider part of gay and lesbian studies. Simplistically, one could describe the differences between the objects of queer theory and gay and lesbian studies as between, for example, the construction of the normative and that of the deviant, between the construction of heterosexuality and that of homosexuality, and between the study of sexual practices a.nd that of sexual identities. See, e.g., Warner, introduction; and Duggan, "Queering the State." This narrative is from a particular queer theory perspective, however, and it is certain that those in gay and lesbian studies could tell a different story.
93. Lambda Legal Defense and Education Fund, "Roadmap to Equality."
94. Warner, introduction, xxvi-xxvii.
95. Cohen, "Punks, Bulldaggers, and Welfare Queens."
96. Eng, "Out Here and Over There," 50.
97. Goodridge v. Department of Public Health, 798 N.E.2d 941 (Mass. 2003).
98. Goodridge, 798 N.E.2d at 949.
99. Goodridge, 798 N.E.2d at 949.
100. Goodridge, 798 N.E.2d at 961.
101. Goodridge, 798 N.E.2d at 964.
102. Goodridge, 798 N.E.2d at 965.
103. Goodridge, 798 N.E.2d at 967.
104. Goodridge, 798 N.E.2d at 954.
105. Goodridge, 798 N.E.2d at 954.
106. V. Spike Peterson, "Sexing Political Identities/Nationalism as Heterosexism," in Women, States, and Nationalism: At Home in the Nation? ed. Sita Ranchod-Nilsson and Mary Ann Tétreault (London: Routledge, 2000), 60.
107. Lauren Berlant and Elizabeth Freeman, "Queer Nationality," in Warner, Fear of a Queer Planet, 193-229.
108. Volpp, '"Obnoxious to Their Very Nature,'" 73.