Queering the Family in an Age of Marriage Equality

It was a pleasure to read Katherine Professor Franke’s provocative book, Wedlocked, and an even greater pleasure to be able to engage in this on-line discussion about Professor Professor Franke’s long simmering work. As a lesbian of African descent raising bi-racial children with a Latina co-parent, I came to this book with personal and professional relationships to many of the topics about which Professor Franke writes so eloquently. I left the experience of reading her book with numerous thoughts and questions to which I cannot do justice in a blog post. So, recognizing that I cannot do it all, I’ll use my space to reflect on one piece of Professor Franke’s narrative that resonated strongly with me, which is contemplating how families with children created by lgbt people do or do not radically, or even modestly in some cases, actually queer the idea of family. By this I mean, as I’ll explain in more detail below, just as is true in the context of marriage, being queer and creating a family does not always mean that you have queered the family. In that case, then, I wonder what it means to queer the family in our modern context and, perhaps more importantly, what we gain or lose by couching the narrative of change in the idea of queerness rather than using other language to describe and understand the end of the hegemony of the nuclear family.

My scholarly work exists at the intersection of family law, bioethics, and reproductive justice, with a particular focus on assisted reproduction and how non-coital forms of baby creation can, but don’t always, challenge traditional notions of family and belonging. Consequently, one piece of Professor Franke’s book that deeply resonated with me was her discussion of the ways in which same sex couples engage in a process of queering the family by virtue of how they create families with children. Professor Franke gives 3 such examples, one involving a very open open adoption of an infant by two African-American lesbians who, it appears, have been significantly integrated into the birth family of their child; one involving two white gay men who hired a gestational surrogate with whom they continue to have contact long after their child’s birth (In the interest of full disclosure, like Professor Franke, I am friends with the two men about whom she writes and am thrilled about the family that they were able to create); and another involving a male couple and a female couple who created biological children together and raised those children with the lesbians as primary parents and the men as loved family figures who are not social parents.

Professor Franke offers up these stories to illustrate how gay people, like African Americans (and, of course, these groups are not mutually exclusive), have played with, rejected, and, in some cases, transformed the traditional/nuclear family. She explains, “These three stories are typical of the ‘queerness’ of many families being formed by lesbians and gay men who want children in their lives.” I’m unsure what to make of the quotation marks that she uses around the word queerness, but it is the use of that word that is especially striking to me. I am happy to praise and celebrate the ways in which these families got created with care and deliberation. I also think, though, that it’s critical to recognize the ways in which they might not be all that queer depending on how that word is being deployed. If queer simply means not the nuclear family model of one man, one woman, and their biological children living in a single household, then a huge number of families are queer in this country, which starts to make them seem more mainstream even if not traditional. If we mean something more specific by using the term queer, perhaps requiring parents who identify as lgbt, then all of the families that Professor Franke describes surely qualify, but at that point the designation of queer sweeps in huge numbers of families that are almost identical to traditional family structures save for sex or gender identity. So, what makes two white gay men with financial privilege hiring a surrogate to carry a child for them and maintaining a relationship with that surrogate radically different from a white man and white woman (married or in a serious long-term relationship) making the same decisions? And when I think of the lesbians who are clearly committed to creating a family structure for their daughter that allows her to maintain close ties to her birth mother and her extended family of origin, I read that story not as a queer story per se, or certainly not only a queer story, but as an example of the kinds of extended networks of kin, caring, and community that have so long been a deep part of African American familial traditions extending to those families created by same-sex couples. The story, then, is best told as an intersectional one about how multiple identities shape the families that we create.

That I’ve opted to focus on what perhaps appears to be such a small part of Professor Franke’s broad and exciting narrative may seem out of place or out of touch, but I am fascinated by this question of how we understand what it means to dismantle dominant family structures and conquer familial hierarchies. I share Professor Franke’s concerns about how some of the legal strategies used in marriage equality litigation may actually have damaged those who create what I tend to describe in my work as outsider or marginalized families, rather than queer families. For me, the important dividing line in how families exist in our world is the distinction between families that can be formed by law and protected by law versus those that are treated as anomalous, or inferior, or even thought to be dangerous by some conservative politicians and policymakers. These outsider families are not necessarily radically upending notions of family and thus may not fall neatly into how some think about what it means to queer family. In fact, they may be much more closely aligned with traditional notions of family in many ways, but they are not granted legal legitimacy because they do not wholly track what has long been deemed the norm.

I am deeply mindful of the critical ways in which outsider families can create impacts beyond the circumstances of the individual family members such as in Moore v. City of East Cleveland in which the Supreme Court struck down a statute that excluded certain non-nuclear family units from living together in the City of East Cleveland (in that case, the offending family consisted of a grandmother, her son, and two grandsons) or consider how same sex couples are pushing some family courts and state legislatures to acknowledge more than a two parent dyad for any one child either through legislation or through case law. These are changes that matter and that make it harder to claim that there is one family structure that rules above all others. But, as we push the boundaries of family, as Professor Franke warns in the context of her history of marriage for freed slaves and for lgbt people in our present world, we should be careful what we wish for. We do not want to reinforce familial hierarchies by forcing people into specific family arrangements in order to warrant recognition (2 parents only), nor do we want to fetishize outsider families such that those who do not fit that model are denigrated for their choices (i.e., the adoptive parents who choose a closed adoption or the birth mother who opts for such an adoption thus perhaps not being queer enough in their choices). In thinking about the ways in which reproductive justice calls for us to respect the right to have a child, not have a child, or parent that child in a safe and healthy environment, the upshot for me is that the reproductive justice paradigm does not demand that outsider families conform to some particular form in order to help dismantle hierarchy. The end goal, or at least one end goal, is to recognize that most orthodoxy about how people choose to wrap themselves in the webs of dependence and intertwinement that family connotes are deeply personal (though not necessarily private) and the job of our laws and policies is to facilitate these personal choices without unjustifiable bias or prejudice. And as the demand for equitable law and policy continues, as Professor Franke makes clear, those demands for protection and acknowledgment can help to de-center marriage in family life, which is almost certainly a good thing for many people.

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3 Responses

  1. It’s so helpful to query what we mean when we talk about “queering” families or anything else. “Outsider” and “marginlized” are more precise, and helpfully name a particular harm (or benefit). It does seem likely, as Katherine contends in “Wedlocked,” that marriage equality makes married same-sex couples decidedly less “queer” than others, re-drawing categories of belonging and exclusion. But the question of kids brings up new categories of belonging, like Kimberly’s suggestion that heterosexual and gay couples who hire surrogates may not be all that different. Or, if some surrogates prefer to work with a gay male couple because it’s emotionally complex to navigate a relationship with the woman who wishes she could carry a child but can’t, differences between straight and gay commissioning couples may lie as much in gender as in sexual orientation. “Wedlocked” serves to remind activists and scholars to remember those on the margins for all kinds of reasons — race, class, three-parent families, living-apart-together — and re-service Domestic Partnership and Reciprocal Beneficiary provisions toward that end, a hugely important task as we find our way through what may be a post-gay world.

  2. Professor Kimberly Mutcherson’s rich engagement with “Wedlocked” pushes on what might be one of the most challenging issues I raise in the book: what threat does marriage equality pose to the viability of queer families? In asking this question she provokes us, well really me, to be more precise about what I mean when I deploy the term “queer” – what actually makes a family queer, if not merely reducing the notion to lesbian or gay parents? And given that the ideal of the heterosexual nuclear family has long ago surrendered to the reality of a wide range of family forms, isn’t queer the new norm? (Professor Mutcherson writes: “If queer simply means not the nuclear family model of one man, one woman, and their biological children living in a single household, then a huge number of families are queer in this country, which starts to make them seem more mainstream even if not traditional.”)

    In effect, what Mutcherson is highlighting is the way in which queer gets thrown around rather promiscuously these days, and she invites me to be more precise when I figure the win in the marriage equality fight as posing a threat to queerness.

    So here are some thoughts: queerness is not a stable identity that ought to be added to the list of categories we protect in law or for whom we create national organizations that fundraise in its name (eg: NGLBTQ Task Force). It is not a hipper version of gay or lesbian that, when rendered as a verb, will somehow “queer” marriage by populating the institution with fabulous same-sex couples.

    Rather that approaching law and demanding recognition, queerness inhabit the interstices between forms of legal recognition, gaining its coherence, and in some cases pleasure, from the ways it resists legibility in law’s terms. The examples in the book of families I term “queer” offer a glimpse of this possibility: defying the law’s injunction to organize kinship within a grid of intelligibility, and privilege, that serves larger social interest, such as the privatization of dependency. Queer families are not simply non-nuclear – as Mutcherson suggests – but are made up of attachments of intention, an intention to a kind of subterfuge or irony or exploitation of law’s internal contradictions.

    Kim, thank you for this provocation and for your engagement with “Wedlocked.”

  3. My thanks to all of you for your insightful and provocative comments. As a lawyer working with couples trying to sort out the legal complexities of their “queer” lives, I deeply appreciate the broader perspective all of you bring to my daily life.

    The one comment I would make is that I believe you are under-estimating the intensity of what I call “margin fatigue.” By that I mean that many of my LGBT clients are worn out by the complications of being legal outsiders, with the punitive tax burdens and high legal fees to protect their family, and legal uncertainties dating back decades. Whatever they may feel inside about their unique personal and sexual relationships, most of them seem quite content with simply being “married” or “married with children.” It’s my sense that my clients are quite aware of how the legal normalization of their relationship affects them, but for the most part, they are quite happy with the growing inclusion into legal conformity. Of course there are many who live outside of this realm who find the assimilationist tendencies of the marriage movement to be oppressive, and I hope this faction doesn’t fade away. But like it or not, I believe that the gay and lesbian rush to the altar reflects a widely held preference for conventionality over queerness.