Time for rights? Loving, gay marriage, and the limits of legal justice

Fordham Law Review

Volumn 76, Issue 6, 2008, Pages 2849-2872

  Reddy, Chandan ^a  

^a UNIVERSITY OF WASHINGTON   (United States)

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EID: 46049115667     PISSN: 0015704X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (52)

1. Walter Benjamin, On the Concept of History, in Selected Writings 391 (Michael W. Jennings ed., 2003).
2. Michel Foucault, The Archaeology of Knowledge 7 (A.M. Sheridan Smith ed., 1972).
3. 388 U.S. 1 (1967).
4. See generally id.
5. 379 U.S. 184 (1964).
6. It is perhaps not accidental that the Supreme Judicial Court of Massachusetts's decision affirming gay marriage in Goodridge v. Department of Public Health, 798 N.E.2d 941 (Mass. 2003), took effect on May 17, 2004, fifty years to the date of the U.S. Supreme Court's decision in Brown v. Board of Education, 347 U.S. 483 (1954), which has often been considered the precedent-setting modern civil rights case.
7. See generally Janet Halley, "Like Race" Arguments, in What's Left of Theory 40 (Judith Butler et al. eds., 2000).
8. Siobhan B. Somerville, Queer Loving, 11 GLQ 335, 337-38 (2005).
9. See id. at 337, 344; see also Mary Eaton, Homosexual Unmodified: Speculations on Law's Discourse, Race, and the Construction of Sexual Identity, in Legal Inversions: Lesbians, Gay Men, and the Politics of Law 45 (Didi Herman & Carl Stychin eds., 1995);
10. Darren Lenard Hutchinson, Out Yet Unseen: A Racial Critique of Gay and Lesbian Legal Theory and Political Discourse, 29 Conn. L. Rev. 561 (1997).
11. Somerville, supra note 8, at 347. On the extension of normalization to African Americans and its creation of nonheteronormative differences of race, see Roderick A. Ferguson, Aberrations in Black: Toward a Queer of Color Critique (2004).
12. Somerville, supra note 8, at 357.
13. Jasmyne Cannick, Gays First, Then Illegals, Advocate, Apr. 4, 2006, http://www.advocate.com/exclusive_detail_ektid28908.asp.
14. Id.
15. Id.
16. On the worldliness of the civil rights movement rused and appropriated as American exceptionalist drama, see Nikhil Pal Singh, Black Is a Country: Race and the Unfinished Struggle for Democracy 1-57 (2004).
17. Black's Law Dictionary 84 (6th ed. 1990).
18. Id.
19. Indeed, the fact that in cities (like New York) that have LGBT and black demographics within their urban social landscape, blackness is also an enunciation of immigrant conditions that belies the nationalization of black differences upon which Cannick's analogy rests. By the 1990s, nearly forty percent of New York City's black population was immigrant or of immigrant descent. New York City's Newest, N.Y. Times, Mar. 14, 1996, at A22. In many ways, this extends to and correlates with an earlier twentieth-century history of blackness in New York City. In the 1920s and 1930s, nearly one in every four black persons in the city was an immigrant. Winston James, The History of Afro-Caribbean Migration to the United States, http://www.inmotionaame.org/migrations/topic.cfm?migration=10&topic=1 (follow Winston James hyperlink). Black racial formations reveal complex conditions of national heterogeneity and mixed juridical status, making analogies such as Cannick's susceptible to the differences they seek to mark as inconsequential. On the rising percentage of immigrants as the fulcrum of black demographics in the 1990s, see New York City's Newest, supra.
20. Lisa Duggan, The Twilight of Equality?: Neoliberalism, Cultural Politics, and the Attack on Democracy 65 (2003);
21. Jasbir K. Puar, Terrorist Assemblages: Homonationalism in Queer Times 1 (2007).
22. Loving v. Virginia, 388 U.S. 1, 7 (1967).
23. Naim v. Naim, 87 S.E.2d 749, 750-51 (Va. 1955).
24. Loving, 388 U.S. at 7.
25. See Howard Winant, The World Is a Ghetto: Race and Democracy Since World War II 133-36 (2001);
26. see also Jodi Melamed, The Spirit of Neoliberalism: From Racial Liberalism to Neoliberal Multiculturalism, 24 Soc. Text 1 (2006).
27. See Kimberlé Williams Crenshaw, Race, Reform, and Retrenchment: Transformation and Legitimation in Antidiscrimination Law, in Critical Race Theory: The Key Writings That Formed the Movement 103, 110-15 (Kimberlé Crenshaw et al. eds., 1995); see also Singh, supra note 15.
28. Both Patricia Williams and Kimberlé Crenshaw have argued a similar point, one in relation to property law and the other in relation to antidiscrimination law. Both use critical race theory to suggest that it is not enough simply to unmask the ideology of the law as a guarantor of capitalist social relation and capitalist hegemony. Rather, we must acknowledge that the legal sphere actively produces, constrains, and shapes racial identities and meanings, and rearticulate those meanings. Here, the state is not just a site that sits above or separate from racial struggle, but a central domain of conflict over racial meanings. Both Williams and Crenshaw stress that formal equality - the legal remedy of racism within U.S. racial capitalism from the 1970s onward - is limited to what Crenshaw calls "[s]ymbolic subordination." This formal equality fails to address "[m]aterial subordination." Yet neither Williams nor Crenshaw suggest that formal equality is the only manner in which race can be adjudicated in the law. Rather, current law and legal norms concerned with "racial remedy" have rarely championed the racial meanings promoted by race-based social movements or intellectuals of those movements, such as critical race theorists. See Crenshaw, supra note 24, at 114; Patricia J. Williams, The Alchemy of Race and Rights 216-36 (1991).
29. William N. Eskridge, Jr., Equality Practice: Liberal Reflections on the Jurisprudence of Civil Unions, 64 Alb. L. Rev. 853, 855-56 (2001).
30. Id.
31. That is, Eskridge circumvents any account of the history of slavery, continental genocide, and racialized immigration as the primary conditions of determination of the state regulation of marriage. Instead, marriage regulation by the state, and the practices of racial marking and ascription of which it is a part, are rused in Eskridge's normative account as the unequal state recognition of its subjects via marriage regulation. For an account that reveals the centrality of these conditions of determination for the writing of marriage law in the state of Virginia, see Peter Wallenstein, Race, Marriage, and the Law of Freedom: Alabama and Virginia, 1860s-1960s, 70 Chi.-Kent L. Rev. 371, 372, 389-406 (1994).
32. Randall Kennedy, Marriage and the Struggle for Gay, Lesbian, and Black Liberation, 2005 Utah L. Rev. 781, 788.
33. See George Chauncey, Why Marriage? The History Shaping Today's Debate over Gay Equality 161 (2004).
34. Kennedy, supra note 29, at 797-98.
35. Id. at 801.
36. See id. at 788.
37. 539 U.S. 558 (2003).
38. Loving v. Virginia, 388 U.S. 1, 13 (1967) (Stewart, J., concurring) (citation omitted).
39. Chauncey, supra note 30, at 16.
40. Michel Foucault offers the term "discontinuities" to discuss ruptures, transformations, or changed arrangements within a modern social formation. See Foucault, supra note 2.
41. This is the logic and mode of relation that undergirds the (white) liberal institutional desire for Black History Month or any other month or week dedicated to the public recognition of groups historically marginalized by the inheriting institution's (coded as "our") modernity.
42. Chauncey, supra note 30, at 161.
43. Benjamin, supra note 1, at 392.
44. Id. at 391.
45. Id.
46. By unrecognizable intimacies, I mean that they are forms of intimacy that are undesirable to us as intimacies. See Katherine M. Franke, Becoming a Citizen: Reconstruction Era Regulation of African American Marriages, 11 Yale J.L. & Human. 251 (1999).
47. Loving v. Virginia, 388 U.S. 1, 3 (1967).
48. 323 U.S. 214 (1944).
49. Loving, 388 U.S. at 2.
50. Id. at 12. It is worth asking if the Supreme Court would have ratified Loving in the way that it did if the plaintiff in the case were an African American man or woman; that is, if in adjudicating the case of a black man's or woman's right to marry, would the Court have placed the same emphasis on one's fundamental "right" for the orderly pursuit of "happiness"? Indeed if we take the "man" seriously in this statement, we see that Loving overturns white supremacy only by affirming the liberal theory of the male prerogative for private life as the precondition for formal equality in the public sphere. What would happen to that "right" if it had been seized by a black woman or man?
51. In fact, what is very interesting about the majority opinion is that the majority did not work with a white/black or white/nonwhite racial economy so characteristic of most of the Court's civil rights decisions in this period. Rather, the majority refuted the reasoning of the racial segregation of intimacy by pointing out that the law only prohibited black/white interracial marriage and not those between these groups and other racial groups.
52. The construction of marriage as a right within American federal and state jurisprudence can be tracked to decisions in the 1920s. See Meyer v. Nebraska, 262 U.S. 390, 399 (1923). For a discussion of the implication of this right of marriage argument for equal protection claims, see Walter Wadlington, The Loving Case: Virginia's Anti-Miscegenation Statute in Historical Perspective, 52 Va. L. Rev. 1189, 1216 (1966). Wadlington writes, "Although the language of Maynard v. Hill indicated the great importance accorded to marriage in our society, the Court did not speak of marriage in terms of a right. However, marriage was specifically so characterized in 1923 in the majority opinion in Meyer v. Nebraska." Id.