Category: Feminism and Gender

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West Point, Swimming, and Developmental Equality

Two separate stories in the news speak volumes about our expectations, assumptions, and knowledge about the lives of children of color.  We know they develop under an expectation of failure rather than success.  Rather than an equal opportunity to succeed, we know, implicitly, that they are funneled to failure.  Thus, when we find children of color unexpectedly successful, we are startled by their transcendence.

We should examine our expectations, our acceptance of the structural discrimination that we passively support or ignore that perpetuates inequality.  Once we do, we have to confront the harshly unequal developmental path for children of color.

The first story is about a photograph of a group of 16 African American women in their dress uniforms as graduating seniors at West Point. West Point still has only a minority of women (the 2014 entering class was 78% male), and remains mostly white (70%).  The women in the photo represented all but one of the Black women graduating, a mere 1.7% of the graduating class.  The women are posed outside the oldest barracks,  a favorite setting for graduation pictures replicating similar groups of graduates for over a 100 years.  Each of the women stands with her arm bent upward ending in a raised fist; some have their arms simply at their side, while a few extend theirs over their heads.

So what did the women in this photograph mean by their pose?

A statement of black female empowerment?  A statement of personal fortitude and accomplishment, and group solidarity?  A statement of protest?  A statement of difference, separating them from other graduates?  A statement of political content, perhaps with #Black Lives Matter or #Say Her Name, movements that have raised consciousness about the inequalities in black lives?

Read as protest, it would violate the norms of universality, of color and gender blindness, and of conduct becoming an officer.  The picture generated enormous controversy for several days.  Each person viewed it from their context, including their view of women, of women of color, and of these women’s place in this setting and institution historically male and white.  Also part of the context was making meaning of their common gesture of a raised clenched fist.   Triggering calls for disciplinary action against the seniors, the controversy finally ended when it was determined that the students had done nothing that required disciplinary action.

For me, in addition to the debate about meaning was the universal unspoken assumption that black women in this place were out of place; not because they did not deserve to be there or to pose like countless other graduates of West Point, but rather, they had transcended the expectation that their place was elsewhere.  Read More

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Big Mike: Non marital families

Amidst a recent move, I had one of those conversations that happen for those of us who teach family law.  My mover, Big Mike, about halfway through the day, discovered I taught family law.  I saw the spark in his eyes. “Well then I really need to talk to you!” he said.  Sometimes this means someone has had a terrible experience with a lawyer, or with a judge.  After all, family law is one of the most common intersections that people have with lawyers.  Just as often, they have a situation they want to discuss.

That was the case with Big Mike, who several trips later up and down the stairs, started to tell me his story, in the hopes that I might have some advice for him. What was fascinating about Big Mike’s story was what it revealed that is remarkably commonplace:  the legal uncertainties and lack of support of non-marital families.

Big Mike has a son who is 11 years old.  When his son was 11 months old, Big Mike came home to a cleaned out apartment, the baby’s mother gone along with his son and her 7 year old daughter.  They had long since ended their relationship, but Mike thought they would work out how to raise their son together.  Instead, she had decided to move to live with a friend in another state.  Big Mike found them and made it clear that he wanted to remain in the life of his son.  She responded by giving him the baby, and since then he has raised his son.  His son’s mother made no further contact nor did she visit.  She remained out of state with her daughter, and subsequently got into a relationship with a man who molested her daughter. She moved a number of times, and continued to make bad life choices.   Meanwhile, Mike maintained contact with his son’s grandmother, who his son visits periodically. Recently the birthmom made contact with him, and her text made him concerned that she might want to try to establish a relationship with her son, or even might seek custody or visitation.  The message indicated her regret for not being a good parent, but that she would like to make amends somehow.  It also hinted at the possibility that she might move back to Florida. Read More

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Fathers, Work, Family and Masculinities

Men’s care work and wage work both are powerfully impacted by the dynamic of masculinities. Masculinities are the male equivalent of female gender norms; they are plural because there are multiple variations, but with a dominant or hegemonic set of standards that set out the hierarchy among men and which men are at the top of the heap.  Just as gender norms powerfully impact women’s lives, the same is true of men’s lives.  Masculinities constrain their engagement and performance of fatherhood, as well as the way in which they work, including limiting themselves and the women they work with. Structural constraints (the assumption work is primary, so the amount, timing and expectations of workers assume no family responsibilities) impact the gender divide in both work and family realms, but the cultural constraints are also powerful.  Even while challenged and in flux due to movement and change in gender dynamics, hegemonic masculinity, the dominant masculinity norm, continues to create hierarchies between men and women, and among men.  Movement in the gender dynamic belies the strength of its underlying foundation.  It is necessary to continue to ask both the woman question and the man question, and in those inquiries, to dig deeper and intersectionally.  So whatever we think we have identified about women and men, we need to ask, “And is this true for all women, all men?”

A series of recent articles about men and women, fathers and mothers, expose the dynamic and range of ways in which the constraints of masculinities remain a significant barrier to equality.

First, a recent opinion piece in the NY Times explores the way that fathers care for their children, noticing a shift in their engagement in the tasks of caregiving but also in the messages and roles they convey about gender to their children.  This is significant movement from the breadwinner definition of fatherhood as singularly an economic role.  But while the shift is important, it is critical to recognize how much distance is yet to be travelled.  The disparity between men and women in family work (caregiving and household work) remains, and it is significant.

A second story, “How Society Pays When Women’s Work is Unpaid,” highlights this family work differential by the concept of the “time gap,” an additional factor to be noticed in addition to the wage gap.  No less a high-profile figure than Melinda Gates laments the significance of this issue for women, but the example she provides of a solution, that of husband Bill taking the kids to school several times a week, is limited.  The message is that no less a man than Bill Gates can be asked to “help.”  But imagine if Bill had written about this instead of Melinda.  Imagine if Bill owned a robust version of taking responsibility for the full range of family work (and planning, and long term thinking) that would constitute real equality.

What gets in the way of both men’s care and doing their share of other household work is masculinities’ defining of men’s and women’s gender roles. Michael Kimmel, one of the leading researchers of masculinities, provides a rich example of this in a profile of a class he teaches in his masculinities program.  Kimmel asks young college men and women the attributes of the Good Man.  Somewhat tentatively, not sure what he is after, they respond “honest”, “caring.”  Then he asks them, what are the attributes of the Real Man.  The answers come thick and fast: “take charge, authoritative,” “take risks,” “never cry,” “walk like a man, talk like a man.” And there it is—the norm that does not embrace care, equality, or women’s equal value.  Rather, it is a norm that would reject engaging in care, or sharing household work, because it is “women’s work.”  The core command of masculinities remains:  “Don’t be a girl.”

And the rejection of things female means the devaluation of women and the defending of what is considered male from female incursion. That clearly has an impact on women’s opportunities and ability to be accepted and valued as equals.  But it also has an impact on men.  It means they are defined and limited in a way that pushes them to be complicit (dominant and gender differentiated), in order to be accepted as a Real Man.

These two threads are clear in two other recent stories. First, a recent comprehensive study demonstrates that when women enter a job category in significant numbers, the compensation for the field declines.

In other words, when enough women are doing the work, it becomes “women’s work,” and therefore it has less value. This is in addition to differential payment of women for the same work (doctors and lawyers making less for the same job based on gender), and differential payment for very similar work by identifying it in a gendered way (housecleaning versus janitorial work). Not only do are women harmed by this, but it also encourages men to defend against women changing the value of the job, keeping it “men’s work,” and deters men from taking work categorized as “women’s work.” Gender segregation and hierarchy is sustained.

The second thread is the defense of male work, defending male turf. One of the most vehement examples of this recently was exposed by two female sportswriters, who published the almost-daily vile, threatening, and nasty feedback they get.  The harassment is not about their work, but who they are; not about their personality or point of view, but about their gender.  In an attempt to combat this, instead of the strategy of ignoring it, sloughing it off as “boys will be boys,” the two sportswriters created a YouTube video, with one of their male colleagues reading the comments to them.  Removing the distancing and anonymity of social media and instead presenting this as if said face to face brings home the misogyny and gender hatred.

The patterns of devaluing, objectification, and harassment demand stronger legal remedies. These patterns should be considered not just as expressions of dominant masculinities aimed at women, but also that they are aimed at men, to punish non-conforming men and to keep all other men in line.

The construction of gender norms, and the limitations imposed on men, returns full circle to affect men’s care. As long as women are not men’s equals at work, that dynamic pushes asymmetric patterns of family work.  As long as men must conform to a masculinities norm at work that devalues care, it will affect their engagement in care.  This has such a powerful impact on family law, and the ability to construct caregiving as men’s work that is part of being a Real Man.  Imagine if the students asked about the meaning of being a Real Man responded by saying “an involved and engaged father” as their FIRST answer.

And then we have to ask the next question: and is this the same for all men?  The news articles did not differentiate by race, class, or sexual orientation, but all of those intersectional identities have an impact on both care and wage work.  Low income African American fathers, for example, are more likely to be in a non-marital household, and are discouraged by the purely economic demands made on them, often impossible to satisfy, of the child support system, while having little support for their caregiving role.  At the same time, a recent study found that Black fathers as a group are more engaged with caregiving than many fathers, contrary to the stereotype of disengagement.  Men of color are at the bottom of the masculinities hierarchy but also engage in resistance to the hegemonic norm.  Their unmet needs as well as their successful resistance suggest issues to resolve and possible strategies that might work for all men. Gay men face unique challenges in creating families and having their family ties recognized, as well as facing harassment and underemployment at work.  A binary gender paradigm that presumes a heterosexual norm disserves them.  Grappling with the questions of work and family equalities therefore requires intersectional analysis.

A range of remedies might be used to grapple with these issues. The bottom line is that we remind ourselves to “ask the other question(s).”

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FAN 102.2 (First Amendment News) Latest First Amendment Salon: Cyber Harassment & The First Amendment

Danielle Citron & Laura Handman

     Danielle Citron & Laura Handman

Professor Danielle Citron (author of of Hate Crimes in Cyberspace) was in fine form as she made her case to an audience (in Washington, D.C. & New York) of First Amendment experts — lawyers, journalists, and activists. Laura Handman (a noted media lawyer) responded with talk of her own cyber harassment experience and then proceeded to make a strong case for the need to develop industry guidelines to protect privacy and reputational interests. Ilya Shapiro (a Cato Institute constitutional lawyer) moderated the discussion with lively and thought-provoking questions, including one about the wisdom of the European “right to be forgotten.” All in all, it was an engaging and informative discussion — yet another between a representatives from the legal academy and the practicing bar.

Laura Handman, Ilya Shapiro & Danielle Citron

Laura Handman, Ilya Shapiro & Danielle Citron

It was the initial First Amendment Salon of 2016. The by-invitation discussions take place at the offices of Levine Sullivan Koch & Schulz in Washington, D.C., and New York and sometimes as well on the Yale Law School campus at the Floyd Abrams Institute for Freedom of Expression.

Selected Excerpts

Professor Citron: Unfortunately, we have “network tools used not as liberty-enhancing mechanisms, but instead as liberty-denying devices.”

Professor Citron: “I am modest in my demands of the law because I am a civil libertarian. My proposals are modest.”

Among others, probing questions and comments were offered by Ashley MessengerLisa Zycherman, Lee Levine, and Victor A. Kovner.

 YouTube video of discussion here.

 Next First Amendment Salon 

May 16, 2016, Chicago: Professor Geoffrey Stone will do a public interview with Judge Richard Posner on the topic of the First Amendment and freedom of speech.

Previous First Amendment Salons 

(Note: the early salons were not recorded)

November 2, 2015
Reed v. Gilbert & the Future of First Amendment Law

Discussants: Floyd Abrams & Robert Post
Moderator: Linda Greenhouse

August 26, 2015
The Roberts Court & the First Amendment 

Discussants: Erwin Chemerinsky & Eugene Volokh
Moderator:Kelli Sager

March 30, 2015
Is the First Amendment Being Misused as a Deregulatory Tool?

Discussants: Jack Balkin & Martin Redish
Moderator: Floyd Abrams

March 9, 2015
Hate Speech: From Parisian Cartoons to Cyberspace to Campus Speech Codes

Discussants: Christopher Wolf & Greg Lukianoff
Moderator: Lucy Dalglish

July 9, 2014
Campaign Finance Law & the First Amendment 

Discussants: Erin Murphy & Paul M. Smith
Moderator: David Skover

November 5, 2014
What’s Wrong with the First Amendment? 

Discussants: Steven Shiffrin & Robert Corn-Revere
Moderator: Ashley Messenger

April 28, 2014
Abortion Protestors & the First Amendment

Discussants: Steve Shapiro & Floyd Abrams
Moderator: Nadine Strossen

Salon Co-Chairs

  • Ronald K.L. Collins, University of Washington School of Law
  • Lee Levine, Levine Sullivan Koch & Schulz
  • David M. Skover, Seattle University, School of Law

Salon Advisory Board

  • Floyd Abrams, Cahill Gordon & Reindel
  • Erwin Chemerinsky, University of California at Irvine, School of Law
  • Robert Corn-Revere, Davis Wright Tremaine
  • Robert Post, Yale Law School
  • David Schulz, Floyd Abrams Institute for Freedom of Expression
  • Paul M. Smith, Jenner & Block
  • Geoffrey Stone, University of Chicago, School of Law
  • Nadine Strossen, New York Law School
  • Eugene Volokh, UCLA School of Law
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Wedlocked or Wedlinked? Will Same-Sex Couples Remake Marriage or Will They Demonstrate Why Others Should Abandon it?

Katherine Franke’s Wedlocked is a model of critical scholarship.  The book’s motto is “be careful what you wish for” as it ponders the potential negative consequences of a newly granted ability to marry.  Written during the ten year period leading up to Obergefell, the book examines comparisons with the impact of legal marriage on freed slaves in the aftermath of the Civil War.  Franke has unearthed a largely untold story of the hardships African-Americans endured because of marriage, and because of the sudden imposition of a new system at odds with long established norms.  She carries the account into the twentieth-first century, noting the ways in which marriage legitimizes some families while it continues to disadvantage others, particularly in communities of color.  Throughout, Franke maintains her outsider stance as she chronicles wrenching stories of injustice, questions whether it is possible to overcome the legacy of racism and homophobia, and worries that the movements for sexual liberation and gender equality will be subsumed by the emphasis on marriage.  The result is a provocative and original account that in many ways is as interesting for what it leaves unsaid as for what it addresses directly.

 

The two best parts of the book are Franke’s reclamation of nineteenth century marriage cases and her musing at the book’s end about whether marriage is really well-suited for same-sex couples.  Franke has dug deeply into the archives, and come up with fascinating accounts of the legalization of slave marriages.  The most thoroughly documented material addresses the efforts of the Union Army, desperate for troops by 1864, to enlist African-Americans to join the fight.  The Emancipation Proclamation had freed only the slaves in the seceded states, and the Union promised emancipation for the slaves in the states, like Kentucky, that had not seceded.  When slaves left to join the military, however, their families faced often brutal retaliation from slave owners.  The families began to flee with the soldiers, but this, too, left them vulnerable, and when a Union Commandant evicted the families from Fort Nelson, Kentucky, in November 1864 without adequate food or clothing, many died of disease or exposure.  Congress, shocked into action by the images of children dying in their mothers’ arms (and the prospects of losing needed enlistments), voted to free not only the soldiers, but their wives and children, with compensation to the slave owners who were still part of the Union (p. 43-44).  While African-American slaves had not been able to marry, women who could establish that they were in a marriage-like relationship with an enlistee could obtain their freedom.  Franke reports, however, that marriage – and the freedom that went with it – exposed the women to new risks.  Even if their masters did not retaliate directly, they no longer had to support them, the Union Army provided little protection or assistance, and managing on their own was perilous.  Franke concludes with two contrasting paragraphs.  The first reflects her skepticism, as she emphasizes the “unintended harms” that can occur when the law gets too far ahead of social attitudes.  To confer a right to marry on people who previously could not marry, and to do so without “taking into account the underlying bigotry that caused their subordinate status, had the unfortunate result of leaving the newly favored group worse off than they were before they were recognized as rightsholders” (p. 49, emphasis in original) In short, marriage can be a problem rather a solution.  Yet, in the next paragraph, Franke acknowledges that the freed slaves did not necessarily see it that way.  While the law in effect adopted a form of common law marriage that tied legal significance to cohabitation, the former slaves were so eager to participate in marriage ceremonies that Kentucky military officials reported running out of marriage license forms.  Marriage was also a valued right for families who had been denied official recognition of their relationships.

 

The middle part of the book continues mining the historical records for marriage cases, and here Franke finds a tantalizing incomplete historical record.  In many parts of the South, prosecutions for bigamy, adultery and fornication were brought against African-Americans with no comparable cases against whites.  She assumes that these cases were part of an effort to use the criminal justice system to reacquire the labor of freed slaves, sending the men off to prisons that then leased out the prisoners’ labor under conditions often worse than slavery.  In other circumstances, however, African-American women brought actions against men who left them for other women.  Franke surmises that the women may have been using the legal system to identify a man responsible for support in an effort to protect their children from being seized and apprenticed to whites ready to put them to work in the fields.  Franke treats these cases as examples of the use of marriage as a trap for the unwary; she observes that the law that automatically legalized slave marriages was a “double-edged sword” (p. 132).  The mostly illiterate freed men and women did not necessarily realize that if one relationship ended and another began, they were guilty of the crime of bigamy.  Yet, many slaves did have multiple families as slaveowners had involuntarily separated couples and some of these couples wished to be reunited when slavery ended, setting up potentially painful confrontations.  Moreover, in the years afterward, freed men and women who wished to enter into new relationships were often not aware of the need to end an older union and, even if they knew about the law, did not necessarily have the resources (and often lacked the grounds) to get a formal divorce.  Franke uses these descriptions to draw parallels to gay and lesbian couples who married in the early adopter states such as Massachusetts only to find it difficult to divorce because of their home state’s refusal to recognize their marriage and their inability to meet the residency requirements for divorce anywhere else.  California couples found themselves in similar predicaments if they entered into domestic partnerships that were automatically converted to marriage as state laws changed, and the couples did not opt out (p. 146).  Franke observes that the “full implications of being automatically married were quite devastating for many black people” (p. 133) and she fears that same-sex couples may also find that marriage law may subject them to oppression from unsympathetic courts.  Her objection is that marriage is a “complicated vehicle through which to address the injustice of racism and homophobia” and that “the freedom to marry risks collapsing into a compulsion to marry” (p. 162).

 

This middle section of the book is less satisfying the initial and ending chapters.   Part of the reason is that while developments during the Civil War are well-documented, with newspaper accounts, congressional debates and letters from the participants providing some of the backstories, the court files after the war include no such details.  Franke is left to guess at the motivation of the parties and she cannot fill in the full context of the cases.  Moreover, as she recognizes, the parallels with the modern position of same-sex couples cannot be exact.  The problems that a lesbian doctor faces, if she is stuck in a marriage in Connecticut because of the civil union she entered in Vermont, are not really comparable to being shipped off to a chain gang and Franke says as much.   In both cases, the difficulties are partly ones of transition from an oppressive system to a not fully developed new one.  The real issue, which occupies the latter part of the book, is deciding what the new system should look like.

 

Franke’s final chapters are intriguing as an exploration of what happens now that marriage equality is at hand.  She acknowledges that the backlash has been less than she feared (though she documents numerous examples showing that it persists) and she notes the risk that same-sex couples’ marriage will be held up as further reason to disparage the less stable relationships of African-Americans and other marginalized groups.  Her accounts of gay and lesbian efforts to adapt marriage to their needs are insightful; she describes, for example, Fred and Melvin, who enlist a surrogate to have a child they intend to raise together.  They marry when the child is seven.  Fred is more interested in parenting than Melvin, however, and they enter into an agreement that if they divorce, Fred would have primary custody, and Melvin would have limited visitation and support equivalent to no more than 25 per cent of their combined responsibility for the child (pp. 220-21).  Such an agreement is almost certainly not enforceable in court and Franke wonders why couples who do not want the obligations associated with marriage are so eager to participate in the institution.  As with African-Americans, she acknowledges the importance of access to an institution that symbolizes full recognition and equal legal rights, but questions whether marriage can ever really address the needs of same-sex couples and, indeed, whether it should retain its ability to channel sexual activity for anyone.

 

This is the true subtext of the book.   Franke’s marriage skepticism pervades the volume; yet, it is couched in parables about unforeseen perils and the inability of a marriage-focused agenda to combat racism and homophobia.  The question her outsider account shies away from is a true insider one; what is marriage for?  Instead, her descriptions of marriage sometimes sound like they might have been authored by the Obergefell dissenters.

 

Franke, for example, tells the cautionary tale of Beth and Ruth.  Beth earned considerably more than Ruth.  During their cohabitation, Beth agreed to pay 80% of their combined expenses, while Ruth promised not to claim a right to Beth’s assets if they should split.  The two later married and divorced without signing a premarital agreement.  When they split, the judge, who had never before handled a case involving a same-sex couple, insisted on dividing not just their savings during the marriage, but their accumulation of assets during their cohabitation, a period that included time when Beth was married to someone else.  Franke objects to the judge viewing their relationship through a “heteronormative lens” and queries whether “this act of translation” does “violence to Beth and/or Ruth, or for that matter to lesbian relationships more generally?”  (P. 213)

 

One wonders, though, why Franke’s advice to Ruth isn’t to appeal and how exactly Franke would decide the appeal if she did.  The point of an appeal would be straightforward: the trial court applied a legal standard that does not apply to heterosexual spouses and is almost certainly wrong as a matter of law.  Courts ordinarily treat property accumulated before the marriage as separate property however long the parties lived together, and given that Ruth and Beth appear to have had an express agreement not to claim each other’s property as a result of the cohabitation, the appeal appears to be an open and shut matter.  Problems of transition, whether in the aftermath of slavery or the advent of marriage equality, are inevitable; it does not necessarily say much about what marriage should become in the new era.

 

Franke hints at, but does not fully engage the latter question (nor does she give many clues to how exactly she would write a decision in Ruth’s favor).   In calling the result “heteronormative,” she suggests that marriage still rests on the exchange between a man with assets and a woman made vulnerable by her assumption of domestic responsibilities, and that same-sex relationships do not necessarily rest on the same exchanges.   The question she does not ask is whether these assumptions are still appropriate for anyone’s relationships.   What has made marriage equality possible is the move away from marriage as an intrinsically gendered institution.  Kennedy’s majority opinion in Obergefell, whatever one thinks of his paean to marriage, acknowledges that the decision is possible only because of the dismantling of gender inequality.   The conservative dissenters, in contrast, opposed the result because of their insistence that marriage retain its intrinsically gendered nature as a way to deal with the consequences of human reproduction.  Marriage equality could command the support of a majority of the Supreme Court because of the rejection of that view.

 

Moreover, heterosexual couples are struggling, in ways not so different from same-sex couples, with the question of what marriage means in an era gender equality.  Let us go back to Beth (who flips homes and has two children from a prior marriage) and Ruth, a union electrician who cycles in and out of the labor market.  The two could easily be named Beth and Rick.  Franke’s insight that marriage is a bad deal for Beth, who in her account both earns the higher income and takes primary responsibility for the children in the home, is right and I have argued elsewhere (with Naomi Cahn in Marriage Markets) that this is an important reason why women like Beth are not marrying the fathers of their children.   Moreover, for Beth this is a second marriage where one of her most important concerns ought to be to preserve her assets for the children of the first marriage.  This is the classic type of case where a premarital agreement is appropriate, and one suspects that as same-sex marriages become normalized, so too will same-sex prenups.

 

The larger question, however, is what purpose (if any) marriage still serves for such couples and whether the conversation between same-sex and different sex couples working through the same issues will enrich or (as Franke seems to suggest) impoverish the discussion.  Franke is right that this conversation today is deeply gendered.  Rick, the electrician, for example, is likely to be seen as mooching off Beth, even if he cleans house and makes gourmet dinners, while the judge seemed to place Ruth in a housewife’s role whether or not she took on more than half of the couple’s domestic responsibilities.   Sociological studies of marriage seem to indicate that it works well for two career couples who can afford to hire domestic help and for traditionally gendered breadwinner, homemaker relationships; it does not seem to work well where one of the spouses is both the primary caretaker and the more reliable breadwinner.  Relationships like that between Beth and Ruth (or Beth and Rick) pose important challenges for society more generally.

 

At the end, therefore, while Franke’s volume offers a compelling critical account that addresses “the perils of marriage equality,” it does not really try to engage the question of what role marriage should play.  To be sure, Franke would dismantle much of it, particularly the insistence on monogamy and the restrictions on sexuality associated with the institution.  The harder issue is the association with children.  Here, Franke’s critical account is telling.  The real problem for African-American families gaining freedom in the Civil War era was the crushing impact of poverty and racism.  Franke rightly criticizes the failure of the Union, eager for the enlistees’ services, to provide for their vulnerable families.  Yet, for Franke, the Union obligation should not have rested on marriage; it should have rested on the need to address the poverty and racism that affected the entire group of freed and not yet freed slaves.  In the nineteenth century, however, the principle method of family provision depended on the combination of male wages and the identification of “legitimate” families entitled to share in these wages.   Progress for African-Americans accordingly depended either on their inclusion in the mainstream system, however much we might like to replace that system with something else, or development of a new, more racially appropriate system, that even if more consonant with the freed slaves own values, was likely to be stigmatized in accordance with the racism of the era.  In short, there were no good choices.

 

LGBT couples today are in a somewhat different position, in part, because marriage is no longer compulsory or universal for anyone.  It nonetheless remains a way of linking parents and responsibility for children and commanding community support for family undertakings.   Franke would prefer a system that does not depend as much on marriage and so would many of us.  She may be right, for example, that marriage promotion efforts stand in the way of greater recognition of the crushing poverty that has become a consequence of a more unequal society.    Encouraging the parents of these children to marry each other is likely to be as ineffective as it is misguided; directly addressing the racism that undermines these communities offers considerably more promise.   On the other hand, one thing that does separate married couples from cohabitants is shared (and legally enforceable) responsibilities to children.  Same-sex couples who adopt see themselves as two equal parents in their own eyes and before the law.  Similar couples, who take on parenting relationships without the formal sanction of either marriage or adoption, are more likely to disagree about their parenting status if the relationship ends.   Couples like Beth and Ruth will be more likely to manage their financial affairs through express agreements, whether inside or outside of marriage, as same-sex unions become more routine.  The much more telling question is the commitment couples like Fred and Melvin make to their children.  Marriage today has become an institution premised on formal equality.  Both spouses are held to equal rights and responsibilities for children born into the union even when, like Fred and Melvin, one parent takes on much more of the emotional and practical responsibility for children.  Adults should be free in the new era to design relationships of their choosing, much as Franke would have them do.  The question for the rest of us, however, is whether there is still a need that for institutions that guide the meaning of parenthood.  That question is not part of Franke’s inquiry.

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Our Precious Perversions

It’s a strange time to be a pervert in America. Donald Trump may well be elected the 45th president, running on a platform of protecting the traditional family by rolling back newly-won, sweeping marriage rights for gays and expanding the first amendment to protect outright anti-gay discrimination. At the same time, the New York Times ran a human-interest story last week about an interracial, sadomasochistic relationship involving a well-known musician and Columbia University professor, calling it, blandly, “A Composer and His Wife.”. Just a few years ago, both would have seemed equally improbable, perhaps even farcical. There’s something vertiginous about both the speed of the progress made by gay marriage advocates and the severity and far-reach of the backlash. How do we understand the simultaneous expansion of marriage regimes and the increasing public articulation of “alternative sexualities”? Are they, as many queer thinkers lament, impossible bedfellows? While public discourse about polyamory and kink is all but ubiquitous, we are still unbearably, insufferably held hostage to the marriage discourse. As Katherine Franke has so beautifully elaborated in her new book Wedlocked, marriage, particularly reproductive marriage, is increasingly the sole vehicle through which we can make space in public to talk about sex. That is one of the many unanticipated and vexing consequences of the push to legalize same-sex marriage. It used to be that marriage was “the place where sex goes to die,” but now I think marriage is just, somewhat disappointingly, where sex goes, period. But is that the end of the story?

As a “recovering” lawyer-turned-sociologist, I’ll focus here on some of the more general socio-legal claims in Franke’s book, which press us to approach the current moment with sobriety rather than celebration. As marriage expands its umbrella to shelter the dyadic, reproductive (“homonormative”) gay family, rights to marriage risk ossifying into obligations. Intermediate forms of relationship recognition, like domestic partnerships, begin to fall by the wayside, and a crag separating the legitimacy of the legal marital form for all other forms of kinship widens to a chasm.

Freedom has rules, Franke tells us, and they are not always the ones we might choose if we were in charge of our won freedom (3). History is instructive here. Attempts to force the plurality of kinship ties forged by newly freed slaves into legal, marital families required a series of arbitrary distinctions (for example, which of a succession of female partners would qualify for an emancipation or pension tied to one man’s military service). Coincident with the transfer of African American families from the “private control of owners to the public control of law” (5) was the political sentiment that any kinship tie outside of those marriages was either unimportant or the sign of social pathology. While we may think of marriage as a means of escaping the burden of social abjection (60), marriage regimes themselves produce that abjection. They are self-reinforcing. Communities with weblike, inventive kinship networks, which often serve protective functions for disadvantaged groups like racial minorities or sexual dissidents, are simultaneously invited into the dominant family form and told their existing affiliations are signposts of their unfitness.

I felt a familiar sense of hopelessness reading Wedlocked. As I’ve watched the gay movement rebrand itself from one focused on sexual and gender liberation to a “focus on the family,” I’ve wondered how we might recuperate some of the radical potential of queer kinship. And now, I’m left wondering how we might use marriage, since clearly it isn’t going anywhere, to assist in this project. In that spirit, I’d like to add a point to Franke’s “Progressive Call to Action for Married Queers,” for which I think we might take inspiration from Mollena Williams and Georg Friedrich Haas, the subjects of the Times story I described above.

It’s a rich story with a banal headline: world-famous composer and college professor finds love after three failed marriages—but this is not just any kind of love. Haas, a white Austrian, meets Williams, a black American, on a typical, bland dating site, and they commence a deep, negotiated power exchange, in which Williams submits to serving Haas, to making his life “as comfortable as possible.” Though the text of the Times story is less direct, this is a configuration familiar to those schooled in sexual diversity. Haas is a dominant; Williams is a submissive. He likely controls much of their joint life, and Williams derives satisfaction from being controlled. (This is not conjecture; Williams, a well-known sex educator, writes openly about her submission on her blog, The Perverted Negress.)

http://www.mollena.com

http://www.mollena.com

The rich layers of complexity in such a dynamic are, I’m sure, not lost on this readership: the juxtaposition of a feminist consciousness with female submission, the racialized power dynamics inherent in the configuration, the likely illegality of some of the sexual practices they admit to engaging in (when was the last time we saw the word “caning” in the New York Times?), the fact that such a relationship can also be, and indeed is, a marriage. Yet, while each of the dynamic concerns appears in a single sentence, the word marriage weaves its way through the narrative, the most dynamic portrayal being his failed previous marriages and his journey into this one.

But BDSM, a “compound acronym that connotes sexual interactions involving bondage/discipline, domination/submission, and sadism/masochism” often leans into and not away from the law. It is likely that Haas and Williams have both a marriage contract and an extra-legal bdsm contract detailing the terms of their Dominant/submissive dynamic. And perverts are not the only ones making such creative use of law. Martha Ertman’s new book, Love’s Promises, profiled in an earlier symposium on this blog, describes those used by a range of what she terms “Plan B” families to negotiate the terms of cohabitation and parenting in ways formal law fails to address.

If marriage “cleaves the sex out of homosexuality” (6), we certainly shouldn’t see marriages like this one in the popular press. But, increasingly, we do. And while gays have struggled mightily to distance ourselves from this type of depiction to preserve our standing as viable legal and political subjects, now that we have attained it, perhaps it’s time to let some of that abjection back in. In a context of legal and social exclusion, both racial minorities and non-heterosexual people form a variety of kinship structures that mediate relations of intimacy and of care and dependence. Think, for example, of the “army of ex-lovers” responsible for caring for the first sufferers of hiv/aids. What happens to forms of non-marital intimacy under a marriage regime? They risk disappearing. Perhaps one thing we might do is take a lesson from Haas and Williams and make sure we don’t lose our precious perversions to the marriage discourse.

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“What Have We Gotten Ourselves Into?”: Reflections on Katherine Franke’s Wedlocked

In 1989, Paula Ettelbrick, then legal director of Lambda Legal Defense and Education Fund, and her boss, Tom Stoddard, debated the importance of same-sex marriage for the struggle for lesbian and gay rights. Whereas Stoddard argued “the gay rights movement should aggressively seek full legal recognition for same-sex marriages,” (Thomas Stoddard, “Why Gay People Should Seek the Right to Marry,” Out/Look, Fall 1989, pp. 9-13), Ettelbrick, in contrast, argued that “marriage is not a path to … liberation” and that a more desirable and promising project was “providing true alternatives to marriage and … radically reordering society’s views of family.” (Paula Ettelbrick, “Since When Is Marriage a Path to Liberation?,” Out/Look, Fall 1989, pp. 14-17).

Katherine Franke’s powerful and engaging new book, Wedlocked: The Perils of Marriage Equality, is in the Ettlebrickian tradition of skepticism about the centrality of marriage to LGBT rights. But Franke’s project is different in at least two significant ways. First, Franke provides dramatic historical evidence on how gaining the right to marriage affected freed African-American slaves in the 1860s and thereafter. Franke argues that this historical evidence is deeply relevant to our thinking about same-sex marriage today. Second, unlike Ettelbrick, Franke writes after the stunning success of the quest for marriage equality for LGBT people. As readers of these words surely know, in Obergefell v. Hodges 135 S. Ct. 2584 [2015]), the Supreme Court, ruled that the U.S. Constitution requires states allow same-sex couples to marry. Franke’s project was conceived and mostly carried out before Obergefell, but the book has been recast as a cautionary tale about the risks of same-sex marriage both for individual LGBT people and for the LGBT rights movement. Or, as she nicely puts it, part of Franke’s project is to ask the LGBT community post-Obergefell “[w]hat [we have] gotten ourselves into” (209).

Some of Franke’s continued antipathy towards same-sex marriage stems from her concern that marriage will change LGBT people more than LGBT people will change marriage, in part, because marriage is designed for heterosexuals not for LGBT people. The thought is that when LGBT people marry, we are joining an institution that will constrain us, not empower us. No doubt there is some truth to this concern, but I think Franke overestimates the assimilationist impact marriage will have on LGBT people. There are other social forces besides marriage that have shaped and will continue to shape LGBT people (and heterosexuals, for that matter). Further, marriage is a much more supple and much less static institution than we assume it is. Even setting aside the speedy expansion of access to marriage for same-sex couples since the turn of the century, marriage has radically changed in the past fifty years. For example, it has gotten much easier to get divorced, most (although not all) gender asymmetries in family law have disappeared, cohabitation is now recognized for some legal purposes, procreation is no longer seen as a crucial aspect of marriage, and prenuptial (and postnuptial) agreements are now more common and courts are much more willing to enforce them.

Franke knows this but she remains concerned about marriage for LGBT people in particular because, she says, “as a legal matter, gaining marriage rights really boils down to surrendering the breakup of your relationship to governance by rules set by the state, rather than the ad hoc improvisations that same-sex couples used before they were able to marry” (209). She offers an example of two women in a serious but on-again/off-again relationship for over a decade or so. At one point, in an attempt to repair their relationship, the couple reached an agreement that they would not commingle their finances but that they would live together and contribute to their joint expenses in proportion to their abilities (specifically, the more-moneyed spouse would pay 80% of their household expenses). Subsequently, the couple married and, later, divorced. When the less-moneyed spouse sought equitable distribution of all the marital assets, the trial judge not only awarded her half of all of the couple’s assets, the judge also looked “backward,” past the date of marriage to when the couple started dating (because the couple had functioned as a married couple since that earlier time), and treated the assets over that long time period as subject to equal distribution (209-212).

For Franke, this is a disturbing story that exemplifies how “the pre-scripted roles of marriage—husband and wife—[are] mapped onto gay men and lesbians in ways that reproduce hetero-gendered subject positions” (20). I am much less troubled by this story than Franke is. The judge ignored the parties’ pre-marital oral agreement to keep their finances separate apparently, in part, because they subsequently married and, when they did, they didn’t memorialize their agreement in writing in the form of a prenuptial agreement. It seems reasonable, given this context, to apply the default rules of equitable distribution, that is, unless the parties explicitly contracted around these rules when the relationship was formalized. The same approach would be taken in the case of a similarly-situated heterosexual couple: the default rules of equitable distribution would be applied unless the parties contracted around them in the manner prescribed by the relevant state law. I think this is justified even though, as Franke points out, “[w]hen couples say ‘I do’ they are oblivious to the many legal rules that now govern their marriages…” (9) (This quote continues by saying that couples “can’t just pick and choose” (9) which rules to follow; to a great extent, however, couples can pick and choose, by opting for a pre- or post-nuptial agreement—although relatively few couples do this, especially if this is their first marriage.)

I am a bit more equivocal about the judge’s decision to “back date” the couple’s marriage. Note, however, in many instances, this sort of retroactivity is justifiably applauded by advocates of LGBT rights. Consider a state that didn’t recognize marriage between people of the same sex until Obergefell required it. Now imagine two women in that state who were a couple for decades and who would have gotten married there if they could have. Further, imagine that one of them tragically died the day before Obergefell was decided and that there was some important benefit that the surviving partner would have gotten had they married before the late partner’s death. Here, “back dating” this couple’s marriage seems quite appropriate if there is a plausible way to do so under the law. But doing so in this situations like this seems similar to doing so in the case Franke describes. For various reasons, I favor “back dating” in both cases over not doing so in either.

Returning to the broader themes, in contrast to Franke, I think that it is just as likely that marriage, rather than “heterosexualizing” same-sex couples, is “supple enough to accommodate a new cast of characters” even though they might “bust open marriage’s essentially heterosexual form” (20). Consider two differences between same-sex couples and different-sex couples. First, same-sex couples’ relationships are, on average, more egalitarian than those of different-sex couples in various respects including, most notably, the sharing of household duties and parenting responsibilities. Second, same-sex couples consisting of two men are significantly more likely to have “consensual non-monogamous” relationships, that is, relationships in which they agree on circumstances when it is permissible to have “extramarital” sex. For all we know, same-sex marriages might push the institution of marriage towards being more egalitarian and increase the likelihood that couples will discuss issues of sexual fidelity before either spouse has extramarital sex. Just as many of us of were surprised by the speed that the United States went from 0 to 50 in terms of the number of states that allowed same-sex marriage, so too we might be surprised by the impact this development has on the institution of marriage.

* * *

The most vocal advocates for LGBT rights in the 1970s wanted more than equal treatment for LGBT people; gay liberationists wanted to change the very structure of society, to “liberate the homosexual in everyone.” With respect to marriage, gay liberationists saw it as a sexist and oppressive institution. As Ettelbrick put it, gay liberationists aimed to “transform our society from one that makes narrow, but dramatic, distinctions between those who are married and those who are not married to one that respects and encourages choice of relationships and family diversity.” Franke clearly regrets the loss of the liberationist aspect of the gay rights movement.

I share Franke and Ettelbrick’s view that the gay movement’s foundational liberationist tendencies are important, but I don’t believe the movement gave up on other forms of relationship recognition by seeking marriage through litigation, legislation and a campaign to change public opinion. In fact, recent scholarly work has shown that the quest for marriage equality and the quest for alternative modes of relationship recognition were synergistically intertwined. (See Michael Boucai, “Glorious Precedents: When Gay Marriage Was Radical,” Yale Journal of Law and Humanities, vol. 27, p. 1 [demonstrating the “liberationist” motivation behind early gay marriage litigation in the United States], and Douglas NeJaime, “Before Marriage: The Unexplored History of Nonmarital Recognition and Its Relationship to Marriage,” California Law Review, vol. 102, p. 87 [showing the “dialogical” relationship between LGBT rights advocacy for marriage, on the one hand, and advocacy for alternative modes of relationship recognition, on the other].) This complicated history makes me less worried that “[g]aining the right to marry [will create] the expectation that all in the community conform to traditional notions of coupling, and can have the unintended consequence of making the lives of lesbian and gay people who aren’t in traditional relationships more precarious, not less” (13).

That said, I share Franke’s concern that the alternative modes of relationship recognition developed over the past few decades are at risk of disappearing after Obergefell. To use the terminology used by William Eskridge, there is a question whether the non-marital modes of recognition will be “sedimentary,” namely, whether, when a new relationship form is opened up or created (e.g., marriage for same-sex couples) and more benefits are given to certain couples, the old relationship form that gave fewer benefits (e.g., domestic partnerships) will continue to exist. (The question, in other words, is whether the old relationship for will remains as “sediment.”) (See, William N. Eskridge, Jr., Equality Practice: Civil Unions and the Future of Gay Rights, p. 121 (2002].) According to Eskridge, sedimentation engenders pluralism about relationship recognition, and this should please advocates of alternative modes of relation recognition. However, Franke is concerned that sedimentation is not a robust phenomenon in the United States and her discussion in the latter part of Chapter 3 provides reasons to think she is right. That said, some jurisdictions have retained alternative forms of relationship recognition even after they have embraced civil unions or same-sex marriage. Colorado, for example, has retained its unique designated beneficiary law (which allows two unmarried people to give each other some or all of a limited set of legal rights, benefits, and protections to make certain decisions about each other’s health care and estate administration as well as treatment in medical emergencies, during incapacity, and at death) even after it passed civil unions and its still retains them after Obergefell. But now that same-sex couples can marry, there is a risk that many alternative forms of relationship recognition that have been created in the past three decades will disappear. And that would be a loss for all of us, not just LGBT people.

* * *

My comments thus far have mostly ignored the original historical research Franke did about the Civil War and Reconstructionist-era marriages of freed slaves. That history is both fascinating and deeply troubling, but I remain mostly unconvinced of its relevance to LGBT rights post-Obergefell. African-American slaves did not have the right to marry anyone. In contrast, lesbians and gay men in the United States, even before Massachusetts became the first state to solemnize same-sex marriages, did have the right to marry: importantly, though, we didn’t have the right to marry the people we wanted to (namely, people of the same sex). Perhaps bisexuals best illustrate the point I am making here. A bisexual could marry some of the people he or she wanted to marry (those of a different sex) but not others (those of the same sex). The contrast between the absolute prohibition on marriage for African-American slaves and the partial—albeit dramatic, immoral and unconstitutional—prohibition on marriage for LGBT people undercuts the analogy at the heart of Franke’s book. Instead, a better (although far from perfect) analogy is to antimiscegenation laws that were common throughout the United States for much of its history.

That said, I learned a great deal from Franke’s book, especially from her discussion of the archival research. Her attempts to connect this history to LGBT rights and explain the different receptions of the marriages of freedpeople in the 1860s and thereafter and the marriages of LGBT people in the 2000s and thereafter are insightful and provocative. I encourage you to read this fine book and to engage with it as I have tried to do here.

Edward Stein
Maurice Greenberg Visiting Professor of Law, Yale Law School
Professor of Law & Director, Gertrud Mainzer Program in Family Law, Policy, & Bioethics, Cardozo School of Law
email: Edward.Stein@yale.edu OR ed.stein@yu.edu

1

Neither Freedom Nor Equality

Be careful what you wish for – that’s the clear warning that Katherine Franke gives the reader in her new book, Wedlocked: The Perils of Marriage Equality. In the book, Franke offers a far-reaching and incisive critique of marriage, based on the ways in which marriage was both sought after and suffered through by two distinctly different populations: newly freed slaves after the Civil War and same-sex couples in the wake of marriage equality. Careful not to make direct comparisons between the two populations, Franke presents the experiences of both groups side by side and draws out similarities that are always striking and often surprising. The intertwining stories of these two groups provide a window into “what it means to elaborate a new conception of freedom and equality through a form of state licensure.” (p. 11)

Freedom and equality frame the discussion and serve as touchpoints for Franke as she details the unintended consequence of access to marriage for both populations. What becomes clear, as the book progresses, is that the elaboration of freedom and equality through marriage is quite different than the reality of obtaining freedom and equality through marriage. Franke’s first overarching theme – marriage is not freedom – comes through sharply in the wide-ranging stories she tells about couples, both then and now. Marriage does not and cannot equate with freedom because it is a form of state control. This is not news, but the way in which Franke adeptly draws out the myriad ways in which marriage is used as a mechanism for domestication and governance is compelling. But Franke does not stop there. She deepens this argument by describing the peculiar genius of marriage which is that, despite its being a freedom-constraining relationship, the promise of equality that it offers is sufficiently tantalizing to make the trade-off not only acceptable but even desirable. As she presses on the idea of equality in the context of marriage, however, Franke develops her second, twin theme – that marriage rights do not necessarily produce equality. Not only is freedom illusory; equality is not guaranteed.

Beginning with freedom, Franke presses on this concept throughout and skillfully underscores how marriage operates as a “tactic of governance” (p. 62) that is both plastic and persistent. One particular loss of freedom that concerns Franke derives from marriage being deployed by the State as a technology of power that regulates sexuality, erasing all forms of “fantasmatic curiosity.” (p. 115) The embrace and imposition of marriage on both populations has placed alternative sexualities in service of hetero- and now homonormative ideals. Franke regrets in particular with the gay community that, under the yoke of marriage, “we have lost for now the opportunity to explore the possibilities of a ‘lawless homosexuality.’” (p. 115) Marriage is (as I have explored elsewhere) deeply implicated as a part of the “civilizing process.” As such, marriage demands that sexuality be confined to be legitimized and that individuals discipline their internal, sexual drives. Consequently, relationships that tolerate alternate sexualities – such as bigamy, informal marriage, and multi-party relationships – have been penalized, and might be again, in the rush to ensconce marriage as the one legitimate container for sexual intimacy and activity.

Marriage also entails another, related, loss of freedom because it demands not only sexual but also social conditioning. Marriage is a public-facing relationship that requires that families look and act a certain way: a husband and wife, several children, a well-ordered household. Measured against these perfect families, Franke’s “fluid families” come up short and are penalized for their different-looking, non-traditional forms. Women bear a particular burden of regulation and correction, because the picture-perfect form of marriage is a hierarchical and gendered one. “Fluid families” are therefore disrupted and disciplined not only because of their expressive sexuality but also because they do not conform to gender-based hierarchy. In the context of freed slaves, “female-headed households, or even matrifocal families, in many slave communities were pointed to as evidence of the dysfunction, or even the pathology, of slave family life.” (p.81) Even current marriage laws, however, “take matrimony to be a legal relationship that is fundamentally structured by gender inequality.” (p. 209) Accordingly, Franke worries about the effects of marriage on same-sex couples and how it might transform previously gender-fluid relationships into gender-filled ones. Whether or not same-sex couples will change marriage or marriage will change them, encouraging same-sex couples to reinscribe conventional gender roles in their relationships, remains to be seen. The sociology is in the making. Nevertheless Franke’s warning to monitor the impulse to gender within marriage is apt, especially given power imbalances that result in many couples due to asymmetrical earnings in a marriage.

Finally, marriage represents an immediately relevant form of state intervention and loss of freedom because it imposes default rules about money, resources, and sharing. Marriage economics are, as Franke points out, intimately related to the gendered nature of marriage and marriage as a form of “private welfare.” (p. 90) Because of legal assumptions about the specialization of household labor and marriage as an economic partnership, divorce laws mandate forced sharing, absent private contracting. Same-sex couples are not always aware of these rules (not unlike their different-sex counterparts) and, furthermore, divorce courts don’t always know what to do when confronted with couples who might have been married sooner than they were, had they been allowed to do so. Franke’s story of Ruth and Beth underscores these problems and highlight the possibility of unjust enrichment. (p. 211) Equally likely, however, is the possibility that long-term same-sex couples who have been economic partners for years will be dealt with unfairly by courts refusing to recognize those years of partnership upon divorce. That is to say, while backdating to the beginning of the dating period is one option courts have when constituting the marital estate, they also have the option of not taking into account anything that happened previous to the marriage and thereby artificially circumscribing the assets available to distribute at divorce. Given the reluctance of courts to accord property claims to unmarried cohabitants – and the almost complete rejection by state legislatures of the ALI principles (p. 156) – this may be the more likely danger. Either way, Franke establishes through an abundance of examples that freedom has little relationship with marriage.

Having deconstructed the notion of freedom with respect to marriage – the freedom to marry is really an invitation to relinquish personal freedom to the State – Franke goes on to suggest that the promise of equality through marriage may also be illusory. Marriage inequality operates on several levels. For starters, the right to marry for same-sex couples does not necessitate the right to equal treatment by a legal and societal culture still hobbled by bias and discriminatory desire. One noteworthy thread that runs through the book is that bias has an afterlife – it does not just disappear but rather gets channeled into new outlets and finds new modes of appearance. In the case of marriage equality, inequality may appear in the guise of reinvigorated enforcement of adultery and bigamy law with respect to same-sex couples. (p. 151) Laws that have been on the books for decades, never invoked, may be animated anew because of reconstituted homophobia. Gay men and lesbians, Franke remarks, “have long been accustomed” (p. 152) to outdated laws being selectively applied in order to penalize gay sex. Marriage equality may not change this. This bias may also find other ways to get into court. With same-sex couples having and adopting children, as well as divorcing, bias could easily show up in family court. It is, in fact, simple to speculate about how discrimination and stereotypes might find their way into judicial determinations about property division, spousal maintenance, and child custody. This is a matter, in many respects, of cultural change lagging behind legal change on certain issues and in certain locations. Franke does not have the space, nor is it necessarily a part of her project, to take on the question of how to move cultural change forward, to full acceptance of same-sex relationships and sexuality. The necessity of doing so, however, remains.

There are also other inequalities engendered by the push for equality. In fact, the larger problem with marriage “equality” may be that it creates inequalities within and between various communities. This is a major point in the book and one that weaves together the stories of the gay and African-American communities in the contemporary landscape. In short, the problem with the move to gain rights through marriage, thereby making marriage the standard by which other relationships are “both made legible and assigned value” (p. 112), is that it renders other relationships different and lesser. As Franke argues, “winning the right to marry should not result in making non-traditional families … even more vulnerable for their failure to take a nuclear form.” (p. 111) Perhaps one of the most damaging aspects of this bias “offloading” is that it penalizes and further stigmatizes African-Americans because of the high prevalence of non-normative families in African-American communities. (p. 61) The promise of equality is, consequently, tempered by competing claims to relationship legitimacy and the continuing legacy of racism.

Freedom is not free and equality is not equal. Looking at the possible losses rather than gains in freedom and equality that result from obtaining the right to marry, one is left to wonder two things. Why do we need marriage? And, if we do need marriage for certain purposes, how can and should we manage the technology of marriage so that it serves as a mechanism for enabling freedom and equality?

An answer to the first question is that we don’t need marriage for everything. Consequently, one way to reduce marriage governance is to stop provisioning goods and resources through marriage to the extent that we currently do. There are indisputably good instrumental and practical reasons to marry, given the structure of our current system. As Windsor winningly demonstrated, it is manifestly unfair to ask same-sex couple to be taxed when different-sex couples are not. And, on the flip side, if many different-sex couples count financial planning among the reasons for marriage, why shouldn’t same-sex couples do the same? The thousand-plus benefits that the government provisions through marriage constitute an extremely compelling reason to get married. This has led to a phenomenon of many same-sex couples “holding their noses” and getting married.

This argument, however, does not justify marriage on the merits. There is nothing inherent to marriage that makes it the right or only way to provision benefits. In fact, the answer to the benefits question may be to have the State provision them outside of marriage. Franke does not explore how else we, collectively, might choose to provision benefits or the responsibility of the State to do so in a more equality driven manner. She does, however, nod at the question of redistribution when she suggests that all “married queers” think about what it means to enjoy economic advantage through marriage and reshape their behavior accordingly. (p. 235) Actions like these will help decrease the marriage privilege and smooth out differences among the various types of intimate relationships. This will also prevent couples from being channeled into marriage without any real desire for it.

Another answer is that we need marriage for certain people because, for these couples, the substance of marriage is compelling. Marriage, for some, is a positive good. Consequently, a second strategy – compatible with the first – is to commit to making marriage more equal for those who choose to be in it for affirmative substantive reasons. Franke rightly critiques the fact that “marriage has been recharged as the most august holding environment for the elaboration of one’s mature and authentic self.” (p. 61) Trying to find the charm and charisma of marriage, however, it may be that marriage is deeply appealing because it is a site for making and maintaining a unique connection with another person. The modern ideal of companionate marriage reinforces this ideal and demonstrates how marriage is more than money. Marriage provides a way for individuals to commit to one another, offer continuing support, and receive both love and encouragement. Marriage is of course not required for this type of relationship to develop and flourish. Marriage does, however, serve a signaling function and provide a legal framework for resource sharing and caretaking of multiple kinds.

For these people, marriage is an unalterable part of the social landscape. For them, Franke offers valuable suggestions in her “Call to Action For Married Queers,” including asking spouses to monitor their economic privilege, be aware of gender, and resist offloading bias on other, various non-normative groups. The notion alone of queering marriage is a project worth pursuing in an attempt to help further change the nature of marriage. In this vein, one additional suggestion for Franke’s Call to Action is for married queers – and unmarried ones as well – to open and protect robust critical, queer spaces both inside and outside of marriage. Franke’s message about preserving queer spaces in the context of sexuality is equally important in the political context. Part of keeping marriage equality in play and in question is curating spaces of play and resistance – critical spaces in which divergent practices and personae can be explored. Franke laments that the push to marriage has foreclosed many of these spaces in the gay community. These spaces, however, can be perpetually reinvented through critical inquiry and activity, and they will be the sites of cultural as well as legal resistance.

Ultimately, Wedlocked deftly deconstructs the notions of both freedom and equality with respect to marriage. What remains is to think through how to counter marriage primacy, change marriage internally, and keep open the space for critical play.

0

Submission Deadline Extended: Leading From The South: Politics Of Gender, Sex And Sexualities Proposal

DEADLINE EXTENDED: To be consCFPidered for participation, please send an abstract (500-600 words) and your contact info byMarch15, 2016 to: snx.latcrit@gmail.com.

The South-North Exchange on Theory, Culture and Law (SNX) invite you to submit proposals to participate from its 2016 Conference: Leading From The South: Politics Of Gender, Sex And Sexualities to be celebrated in Santo Domingo, República Dominicana from May 19-21, 2016.

We invite papers across disciplinary boundaries and from all constituencies, on how the global South has been leading current shifts in the politics of gender, sex and sexualities. Specifically, we seek to examine and explore past and present South-North relations regarding the legal treatment of subjects in terms of their sex, gender and sexual identities. We seek to establish a fruitful interdisciplinary dialogue that would proffer a holistic perspective on how certain policies have shaped and will shape the social and legal regulation of subjects based on their gender, their bodies and their desires. For that reason we seek papers on: Marriage, Families, Adoption, Labor, Violence, Child Rearing, Children’s Rights, Reproductive Rights, Poverty, Immigration, Discrimination, State Protections, State Criminalizing Practice, Emerging fields of State Regulation, and Health (among others).

The conference’s proceedings will be held in Spanish and English (with simultaneous translation). For more detail see the official Call for Papers attached.

Follow us on Facebook! (www.facebook.com/snxlatcrit)

If you have any questions, feel free to email me at: arosario-lebron@law.howard.edu.

Aníbal

2

A Historian’s Comments on Katherine Franke’s Wedlocked

In Wedlocked: The Perils of Marriage Equality legal scholar Katherine Franke compares the African American experience with marriage in the wake of the Civil War, with the quest for marriage equality for queers. Relying on a wide variety of archival sources and the experiences of lawyers specializing in queer family law, Franke details the problems that African Americans faced in their first encounters with marriage, drawing vital conclusions about the care queer people should take when we consider the implications of our newly won right to marry. As Franke so astutely asks, why should queers, who only recently gained the right to be free of state criminalization of our sexual lives in Lawrence v. Texas (2003), immediately invite the state to regulate those newly gained sexual freedoms through the institution of marriage? This question seems especially important given the profoundly gendered nature of Anglo-American marriage. Why would a people, who, by the very nature of our desires, trouble the gender binary, sign up for an institution that has historically been premised on it? Marriage, as Franke states, has “its own well-entrenched agenda” and thus “is a particularly value-laden institution within which to lodge claims for full citizenship.” (143)

Franke frames each chapter with a discussion of African Americans initial experiences with marriage, and thus, with the state. Rather than freeing black families to organize their families as they pleased, she finds that marriage instead opened them up to new forms of white violence, domination and control. For example, in the wake of the Civil War, Franke demonstrates that many states automatically married African Americans who lived in relationships that appeared “marriage-like” without their consent, or at times, even knowledge. People who had been living together in a variety of arrangements suddenly found themselves actually married. This preemptory state move did have some positive effects. After all, marriage licenses cost money– money that most couples in desperately impoverished African American community did not have. However, this also resulted in couples who had no intention of marrying, or any knowledge of the legal requirements of marriage, ending up married.

These automatic marriages opened African Americans to state discipline when they violated the laws governing marriage, such as monogamy and the need for divorce when ending relationships. This proved particularly devastating when the state, often at the instigation of jilted partners, began to prosecute African Americans for crimes directly related to their status as married or unmarried people—bigamy, adultery and fornication. Franke speculates that southern state governments bent on maintaining white supremacy, might have deliberately used violations of marriage law to deprive African American men of the vote, as many states then and now, had laws that disfranchised felons. Even more pernicious, she also wonders if states may have been motivated to prosecute African American men to pull them into the convict lease system. Convict lease, the use of convicts as unpaid laborers for either private or state projects, became a virulently exploitative form of labor discipline directed against African Americans well into the twentieth century.

Franke’s second major point revolves around the formation of alternative structures of family in both the African American and queer communities. Slave law (which traced descent through the mother) combined with traditions brought from West Africa, made slave families broadly matrilineal and matrilocal. Furthermore, the pressures of slavery, particularly the need for abroad marriages (husbands and wives who lived on separate plantations) and forced separation through sale, produced both polygamy (also found in West Africa) and serial monogamy. Finally, the disruptions of slavery encouraged a commitment to much broader family ties among slaves than among whites in the antebellum period. Slave communities relied both on extended kin, particularly aunts and grandmothers, and on what anthropologists call “chosen kin,” people with no blood ties who nevertheless take on family responsibilities. Historians have argued that this diversity of family forms encouraged resiliency among both individuals and the broader African American community.

While feminist historians have rightly cast these differences in a positive light (feminist evolutionary biologists point out that matrilineality produces better child outcomes than other systems), Franke demonstrates how whites (then and now) used diversity in family forms as proof of African American’s racial inferiority. Because they did not or could not always follow the “ideal” nuclear family form with a breadwinning husband and an economically dependent wife, whites consistently denied African American humanity. Denigrating them as inherently “immoral” people who had disorganized and dysfunctional families, whites in the 19th century argued against African American claims for citizenship rights.

Like African Americans, queers have developed a variety of family forms and embrace a much broader definition of family membership. Historically, queer couples, particularly men, have negotiated rather than assumed monogamy, even in long term relationships. Queers also rely extensively on “chosen families” made up of friends and ex-lovers. Finally, when they have children, queers deploy a number of strategies that, Franke points out, stretch the boundaries of legal definitions of families. In addition to the more “homonormative” (to borrow Lisa Duggan’s apt term) choices like couples adopting children, or having a child through ART, some queer folk create families with more than two parents. A lesbian couple, for example, who ask a gay male friend to provide sperm, might also ask him to be a “duncle” (donor uncle) who maintains a relationship with the child that, while not like a father, still provides important support and love. There are a myriad of ways in which queer families strain the traditional legal definitions of family with alternative models that, like strategies among African American, increase our resiliency.

Given these shared characteristics, Franke cautions queers about the dangers that marriage may pose to these much broader family ties. First, she points out, marriage would not protect any of these relationships. The fact that a lesbian couple could marry, for example, would do little to solidify their gay donor’s relationship to their child, much less, say, that of his siblings who may well be functioning as a third set of aunts and uncles. Second, Franke points out that the marriage equality movement itself has cast families not based on marriage as inferior and dysfunctional in order to emphasize the harm produced by policies that restrict marriage to one man and one woman. In their attempts to win marriage equality, she argues, proponents for marriage equality have thrown the rest of our family forms under the married nuclear family bus.

Finally, the granting of marriage equality has, in many states, actually damaged the ability of people to protect family members through means other than marriage.   In many states that have granted gay marriage, legislatures and private institutions have eliminated with domestic partnership registries or benefits. This denies all couples the right to choose between marriage and other kinds of relationships. As Franke points out, some couples may not be interested in the full set of responsibilities contained in marriage, but may still want the more limited set of benefits that derive from domestic partnership. Among other things, while marriage is easy, divorce can be difficult and expensive. Many couples may want to be recognized as partners, but might not be ready for marriage and the attendant risk of spending a lot of money should they break up. All in all, Franke is absolutely right that marriage does not solve all of our complex family problems, and in fact, when not thought through carefully, it may increase them. She argues persuasively for more choices in our family forms, rather than fewer.

Since I have been brought on board as the pet historian, I do feel I must add a little historical context to Franke’s text. Her arguments about the dangers of marriage are apt, but she provides little explanation, beyond a desire for “equality,” as to why the queer community turned to marriage. This leaves the reader wondering why in the world we would pursue such clearly problematic strategy, especially since, as Franke rightly indicates, gay liberation and feminist activists of the 1970s rejected marriage as an oppressive institution. The answer, of course, lies in the very real family crises the queer community confronted in the 1980s. As historian George Chauncey argues, both the lesbian baby boom and the AIDS epidemic forced the queer community to confront the problems attendant to having no easy way to legally acknowledge our family ties. Issues of custody, medical decision making, benefits and inheritance compelled us to turn to marriage as a one-stop-shopping for family rights in the context of the life and death decisions we confronted. In fact, had U.S. law not attached so many rights and benefits to marriage, it seems unlikely queers would have pursued marriage as a goal. (Chauncey, Why Marriage, 87-136))

To me, the most interesting part of Franke’s argument lies in the discontinuities rather than continuities between African American experience in the wake of the Civil War, and contemporary queer experience. She expected, for example, that queers, like African Americans, would experience an upsurge in discrimination and hostile attention from the state upon marriage. But this has, she freely admits, largely failed to happen. Similar to African Americans who brought their spouses before the courts for adultery, some queers have used the rules of marriage (and particularly the assumption of monogamy) to disadvantage ex-partners in matters of child custody and property settlement. She also has found a revival of interest among conservative lawmakers to strengthen (rather than doing away with) state laws against sex crimes like fornication and adultery, which are rarely enforced but remain on the books. However, Franke did not find that states used these laws disproportionately against queer people in the wake of queer marriage victories, as states did against African Americans in the 19th century.

Franke attributes this difference to the way gayness, and by extension, marriage equality, have broadly been seen as white, even if, in fact, many people of color identify as queer. She points out that most of leadership of “big gay” organizations are white and middle class, as have been the majority of plaintiffs in gay marriage cases. This perceived whiteness has increased the respectability of the movement, perhaps to the detriment of African American families, who have been unable, as hard as they try, to shed racist stereotypes of family disorganization and dysfunction.

Second, Franke argues that seeking civil rights through marriage itself represents a “traditional,” perhaps even conservative path. Marriage equality advocates have argued that they should be allowed to participate in marriage as it is currently defined. They have not, for example, pointed out the myriad of ways having two men, or two women, marry might challenge the deeply gendered nature of the institution itself. As she explains, “when the conservatives sign up for marriage equality, they do so because it dawns on them that their interests in traditional family values, in the nuclear family, in privatizing dependency, and in bourgeois respectability are stronger than their homophobia.” (203). Gay marriage, she argues, has allowed gays to take the “sex” out of “homosexuality.” It has allowed us to make homosexuality about family, intimacy and caregiving, rather than various kinds of stigmatized sexual activities, which, she and I both agree, continue to be fun, and worthy of championing.

Franke then raises, but does not answer, the essential question of why blackness has continued to carry such negative valences, even as queers have been able to “rebrand” homosexuality as family friendly, all-American and not really about sex at all. Here, my work on the relationships between gays and family in the post-war period may provide us an answer. Very broadly, I argue that the gay community’s strategy for gaining social acceptance put family bonds to the work of destigmatizing homosexuality.

“Coming out,” first popularized with gay liberation in the early 1970s, asked queer people to tell family and friends about their sexual orientation. The idea was that this would liberate them as individuals, but that it would also liberate the community by challenging heterosexual family members to rethink long held negative stereotypes about homosexuality. Furthermore, once out, the lived experience of queers in America exposes our kin to the depth of hostility and discrimination we face. However, the intense racial segregation of most American cities, ensures that we continue to live, work, and go to school with our own racial groups. U.S. public policy in the 20th century, particularly the Federal Housing Authority, actively promoted segregation, denying both whites and racial minorities the opportunity to live and go to school together, and therefore to know each other in intimate and productive ways. This is one of the many forms of systemic racism white Americans continue to ignore. Deploying kin and the bonds of love in the service of liberation has been a tremendously successful strategy for queers, and it explains why we, as Americans have come so far in such a short period of time on issues of sexual diversity, but have, at the same time, failed to make much progress addressing race, racism, and profound racial disparities.

Franke’s text is a reminder to the queer community that we are at a political and moral crossroads. While we still face some forms of discrimination, particularly the violence directed at trans folk, the fortunes of gender normative queer people have risen substantially. Having engaged in so much creative work around family, equality, and liberty over the last fifty years, we must now choose whether to retreat with our (now) homonormative families to the white suburbs, or to continue the fight for greater equality for all Americans. We know the vicious sting of discrimination, and we know what it’s like to fight desperately for our families as we define them. The question is, will we take those lessons into the fights against poverty and racism? History will judge us in the alliances we make, and the battles we bring. Like Franke, I would like to see us to continue in our queer battle to support all families, not just the ones we can defend through marriage.