Families in Queer States: The Rule of Law and the Politics of Recognition

Radical History Review

Volumn 2005, Issue 93, 2005, Pages 122-141

  Weston, Kath ^a  

^a NONE

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EID: 85050788929     PISSN: 01636545     EISSN: 15341453     Source Type: Journal    
DOI: 10.1215/01636545-2005-93-122     Document Type: Note

References (24)

1. David Cole and James X. Dempsey, Terrorism and the Constitution: Sacrificing Civil Liberties in the Name of National Security (New York: New Press, 2002); Michael Welch, Detained: Immigration Laws and the Expanding I.N.S. Jail Complex (Philadelphia: Temple University Press, 2002); Moustafa Bayoumi, “How Does It Feel to Be a Problem?” in Asian Americans on War and Peace, ed. Russell C. Leong and Don T. Nakanishi (Los Angeles: UCLA Asian American Studies Center Press, 2002), 81–89; Linda Greenhouse, “Word for Word/Rumsfeld v. Padilla: The Supreme Court Asks, Who Will Guard the Guardians?” New York Times, May 9, 2004.
2. Pam Belluck, “Governor Moves on Non-Massachusetts Couples,” New York Times, May 19, 2004; Pam Belluck, “Governor Seeks to Invalidate Some Same-Sex Marriages,” New York Times, May 21, 2004; Adam Liptak, “Typical Greenpeace Protest Leads to an Unusual Prosecution,” New York Times, October 11, 2003. The sailor-mongering law, Liptak explains, was drafted to discourage proprietors from “luring crews to boarding houses” and brothels by climbing onto ships on the way into port. Greenpeace activists had boarded a cargo ship arriving in Florida to call attention to the illegal importation of mahogany.
3. Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life, trans. Daniel Heller-Roazen (Stanford, CA: Stanford University Press, 1998), 168. See also Achilles Mbembe, “Necropolitics,” Public Culture 15 (2003): 11–40.
4. Frank Bruni, “Vatican Exhorts Legislators to Reject Same-Sex Unions,” New York Times, August 1, 2003.
5. See, for example, Veena Talwar Oldenburg, Dowry Murder: The Imperial Origins of a Cultural Crime (New York: Oxford University Press, 2002); and Rudi C. Bleys, The Geography of Perversion: Male-to-Male Sexual Behavior Outside the West and the Ethnographic Imagination, 1750–1918 (New York: New York University Press, 1995).
6. Kath Weston, Families We Choose: Lesbians, Gays, Kinship, 2nd ed. (New York: Columbia University Press, 1997); Judith Stacey, In the Name of the Family: Rethinking Family Values in the Postmodern Age (Boston: Beacon, 1996). On the politicization of kinship during this period, see Rayna Rapp, “Toward a Nuclear Freeze? The Gender Politics of Euro-American Kinship Analysis,” in Gender and Kinship: Essays Toward a Unified Analysis, ed. Jane Fishburne Collier and Sylvia Junko Yanagisako (Stanford, CA: Stanford University Press, 1987), 119–31.
7. Phipps v. Santiago (New York State Court, settled 1998). See the case summary on the Web site of Lambda Legal, whose attorneys represented Santiago and Santos. www.lambdalegal.org/cgi-bin/iowa/cases/record?record=62 (accessed April 19, 2005).
8. In re: Workers’ Compensation Claim of Larry Courtney, New York State Workers’ Compensation Board, filed 2001. See case summary on Web site of Lambda Legal, www.lambdalegal.org/cgi-bin/iowa/cases/record?record=183 (accessed April 19, 2005).
9. In the matter of the estate of Marshall G. Gardiner, No. 85,030, Kansas State Court of Appeals, May 11, 2001. The judgment is listed on the Web site of the Kansas Supreme Court/Kansas Court of Appeals, www.lambdalegal.org/cgi-bin/iowa/cases/ record?record=193 (accessed April 19, 2005).
10. Perdue v. Mississippi State Board of Health, Cause No. G-2001-1891 S/2, Chancery Court of the First Judicial District of Hinds County, Mississippi, March 5, 2003.
11. Gabriel Dean, “Exiled from Main Street: U.S. Immigration Laws Compel Some Gay Americans to Leave Country,” Creative Loafing Atlanta, September 11, 2002, www.atlanta.creativeloafing.com/2002-09-11/feature.html (accessed April 19, 2005).
12. John Borneman, “Until Death Do Us Part: Marriage/Death in Anthropological Discourse,” American Ethnologist 23 (1996): 215–38; Ellen Lewin, Recognizing Ourselves: Ceremonies of Lesbian and Gay Commitment (New York: Columbia University Press, 1998); Ruthann Robson, “Resisting the Family: Repositioning Lesbians in Legal Theory,” Signs 19 (1994): 975–96. For a sense of the differing positions taken by GLBT people regarding marriage, see Thomas B. Stoddard, “Why Gay People Should Seek the Right to Marry,” Out/Look: National Gay and Lesbian Quarterly 2, no. 2 (1989): 9, 14–17.
13. Weston, Families We Choose.
14. Kath Weston, “Made to Order: Family Formation and the Rhetoric of Choice,” in Long Slow Burn: Sexuality and Social Science (New York: Routledge, 1998), 83–93.
15. For example, Guy Hocquenghem, Homosexual Desire, trans. Daniella Danqoor (1978; Durham, NC: Duke University Press, 1993); Barrie Thorne, “Feminism and the Family: Two Decades of Thought,” in Rethinking the Family: Some Feminist Questions, ed. Thorne and Marilyn Yalom (Boston: Northeastern University Press, 1992), 3–30.
16. Cherríe Moraga, The Last Generation: Prose and Poetry (Boston: South End, 1993); and Cherríe Moraga, Loving in the War Years: Lo Que Nunca Pasó por Sus Labios, 2nd ed. (Boston: South End, 2000).
17. For background on the case, in an article that takes her criminalization as fait accompli, see Larry Di Giovanni, “Diné in Shock over Cody’s Crimes,” Gallup Independent, December 11, 2002.
18. On heightened state scrutiny, constitutional protections, and citizenship, see David Cole, Enemy Aliens: Double Standards and Constitutional Freedoms in the War on Terrorism (New York: New Press, 2003); Eithne Luibhéid, Entry Denied: Controlling Sexuality at the Border (Minneapolis: University of Minnesota Press, 2002); and Welch, Detained.
19. Judith Butler, “Is Kinship Always Already Heterosexual?” in Left Legalism/Left Critique, ed. Wendy Brown and Janet Halley (Durham, NC: Duke University Press, 2002), 243.
20. Here my argument differs, in its attention to precedent and legal process, from Borneman’s in “Until Death Do Us Part.” Borneman treats “the relentless debate about ‘families’ in both anthropology and popular culture” as a “disguise” for “what is actually at stake: social and legal recognition and protection of marriage” (216). On the contrary: gay marriage, far from constituting the preeminent object of queered familial desire, has come to dominate representations of queer families due in part to the pursuit of those forms of recognition that can themselves hope to be acknowledged by the law.
21. Brown and Halley, Left Legalism/Left Critique.
22. Kevin Gover, “We Shouldn’t Have (Indian) Trust in the Supreme Court,” Indian Country Today, August 21, 2002. Justice Breyer’s warning was scarcely allayed by the court’s double take on sovereignty in its 2004 ruling in U.S. v. Lara. See David Wilkins, “Justice Thomas and Federal Indian Law—Hitting His Stride?” Indian Country Today, May 5, 2004. “Termination, even wrapped in a black robe, is still termination,” testified David Getches, a professor at the University of Colorado at Boulder Law School, before the Senate Committee on Indian Affairs (quoted in Jim Adams, “Campaign against ‘Terminators in Black Robes,’ ” Indian Country Today, October 16, 2002). See also Getches’s “Beyond Indian Law: The Rehnquist Court’s Pursuit of States’ Rights, Color-Blind Justice, and Mainstream Values,” Minnesota Law Review 86 (2001): 267–362.
23. See John Mohawk, “Abandoning the Principle of Law Is the Wrong Way to Go,” Indian Country Today, April 7, 2004; Barbara Olshansky, Secret Trials and Executions: Military Tribunals and the Threat to Democracy (New York: Seven Stories, 2005); and John W. Dean, “How the War on Terrorism Is Shrinking Congressional Powers,” parts 1 and 2, FindLaw’s Legal Commentary, writ.findlaw.com/dean/20021011.html (accessed April 19, 2005). Dean argues that the expansion of executive powers in the United States at the turn of the twenty-first century contravened provisions of the U. S. Constitution. On implications of the abrogation of international law, see John Gray, “Power and Vainglory,” Independent, May 22, 2004. On grassroots opposition to these developments, see Elaine Scarry’s careful analysis of municipal resolutions that have authorized resistance to the 2001 USA PATRIOT Act, “Resolving to Resist: Local Governments Are Refusing to Comply with the Patriot Act,” Boston Review (February/March 2004), www.bostonreview.net/BR29.1/scarry.html. According to Scarry, “The documents consistently register the view that both the people and the laws of the country are endangered. Together the local resolutions constitute a treatise on self-governance and the rule of law.”
24. I am indebted to Kumkum Sangari and Sheba Chhachhi for clarifying the urgency of this point.