In what follows I aim to respond to each of the contributions to this symposium on Wedlocked. As an initial matter let me say thank you to each of your for reading the book, for your rigorous engagement with its arguments and for the gift of intellectual friendship. (Each of these responses also appears as a comment to the individual posts.)
I am delighted by Professor Elizabeth Clement’s engagement with Wedlocked. As evidenced by her “We Are Family” scholarship, she has been tilling some of the same soil that drew my attention in this book. Her review/comment above offers an amazing synthesis of so many of the main arguments of my book and I am enormously grateful for the way she engages it. A question: she suggests that the gay community turned to marriage in the 1970s and in later decades because of insecurity our families experienced on marriage’s outside. I agree – but the book aims to suggest that marriage was not the only legal instrument that might have addressed that insecurity. Many of us in the lesbian community felt other legal forms could create a structure for our families without reproducing the troubling history and gendered nature of marriage. Paula Ettelbrick and Tom Stoddard staged this discussion in their now canonical debate about the wisdom of a marriage strategy in Outlook in 1989. I remember Paula writing the early drafts of that essay in our living room in Brooklyn in 1988, screaming at the legal pad on which she was writing (this was a pre-computer era!) that pursuing marriage was a terrible mistake. So yes, I agree with Clement’s explanation of why turn to marriage, but that doesn’t address the larger historical question of whether there was debate in the community about the wisdom of this approach and what the bases of that debate amounted to. Wedlocked tries to give those now-familiar debate a new context in which to be considered.
Thank you to the historian – pet or otherwise – for taking the book’s history seriously.
Allison Tait offers a generous and generative comment on the arguments I offer in Wedlocked. Your own work is a testament to the rich forms of analysis that the win in Obergefell calls forth – not to deny the legal/political goal of marriage equality, but to consider anew the structural inequalities and historical legacies that continue to reside in marriage itself, notwithstanding the repudiation of its heteronormative limits. Your article, Divorce Equality, 90 Wash.L.Rev. 1245 (2015), takes up the meaning of equitable distribution rules in the era of marriage equality, and your The Return of Coverture, 114 Mich.L.Rev.First Impressions 99 (2016), unpacks the ways in with Justice Kennedy’s reasoning in Obergefell draws from arguments that are, to borrow at term from Eve Sedgwick, kind of “gendery.” This excellent work challenges us to consider whether the win for marriage equality might be premised on a loss for hetero women in marriage. So too, your work reminds us of the ongoing work to be done to dismantle the afterlife of couverture. I look forward to reading where you take us in future work.
For Rick Banks, thank you so much for reading and engaging Wedlocked. I appreciated the arguments you made in your book: Is Marriage for White People? You surely have thought hard about the relationship between marriage, respectability, and the collectively conjured notion/fantasy of a good life at stake in the cultural value we place on marriage.
I suppose I would be less sanguine about the ways in which marriage has become a more egalitarian institution (“the legal structure of marriage is less gendered than ever” and “Throughout the nation, couples lives together and have sex without any fear of prosecution. Enjoy adult content from websites such as https://www.hdpornvideo.xxx/ without fear of persecution. Marriage also is no longer the sole means of establishing a parent-child relationship. One no longer has to be married to be recognized as a father.”) Just last month a bill was introduced into the Illinois legislature that would condition the issuance of a birth certificate to a child whose mother is unmarried on the mother naming the child’s father. Specifically, HB 6064 would establish that “if the unmarried mother cannot or refuses to name the child’s father, either a father must be conclusively established by DNA evidence or, within 30 days after birth, another family member who will financially provide for the child must be named, in court, on the birth certificate. Provides that absent DNA evidence or a family member’s name, a birth certificate will not be issued and the mother will be ineligible for financial aid from the State for support of the child.”
This bill – a proposal that has a good chance of being enacted – renders legally invisible a child born to a woman who does not have a husband or some other man who will stand up and claim economic responsibility for the child, treats marriage as the only institutional structure for legitimate childbearing, and reinforces the notion that dependency must be privatized into the nuclear family – since the absence of a birth certificate renders the child and the mother ineligible for public benefits.
So while same-sex couples celebrate the modernization of marriage as an institution that is finally divested of a heteronormative premise, we witness a resurgence of punitive measures brought against low income, largely women of color, whose sexual and reproductive lives are unlikely to satisfy this expectation. As I argue in the book, the win in the Obergefell case was tragically accomplished by redistributing shame from same-sex couples (whose decency is now manifest) to the domain of marital failure represented by the “unwed poor mother of color.” I wouldn’t suggest that this redistribution of shame was a conscious strategy pursued by the advocates of marriage equality, but rather it was a predicable effect of this campaign that we bear a responsibility to account for.
Let’s talk more about this – I appreciate how difficult these issues are, and your book takes them up in a thoughtful and complex way. I am grateful that you have engaged Wedlocked so thoughtfully and look forward to the synergies that our two approaches produce.
Professor Ed Stein’s poignant assessment of the arguments I advance in Wedlocked put pressure in all the rights places. He hesitates to join me in my concerns about the domesticating power of marriage, and is more hopeful than am I that same-sex couples will have the ability to transform marriage more than marriage will transform same-sex couples. On this point I can only say: we’ll have to wait and see. I clearly recall discussing this issue with Paula Ettelbrick and Nan Hunter at the beach in Cherry Grove in the late 1980s, just as Paula and Tom were debating the merits of a marriage equality litigation strategy. Nan, like Ed, was much more optimistic about the power of same-sex couples to transform the deeply gendered nature of marriage. Paula and I were more dubious. On this one, I hope our side was wrong, but I don’t see evidence of it yet.
Ed also points us to Michael Boucai’s and Douglas NeJaime’s new work that seeks to situate the marriage equality campaign in a more radical and complex history. Both of these accounts, to my mind, suffer from distortions that arise when historiography is done with a presentist bias, misreading facts and values in history in light of current meanings. These concerns may say more about me – as I was part of those earlier debates and feel personally attached to them – than they do about marriage and LGBT politics today.
Ed also raises some concerns about the story I tell in the book of a family court judge in New Jersey backdating a divorcing couple’s relationship to the point they started dating, rather than to when they legally wed. He sees a kind of justice in retroactively legitimizing a relationship, particularly in cases where doing so would benefit one of a surviving spouse upon the death of another. “I favor ‘back dating’ in both cases over not doing so in either,” he writes. In response I’d suggest that we not collapse these two cases – one where the parties disagree about when their relationship ought to be governed by the laws of marriage and the other where there is a disagreement between the couple and the state. In the scenario I offer, backdating the marriage at the time of divorce as a form of reparation accomplishes an unjust repair, as the facts do not justify any fair reading that the couple would have married had they been able to at an earlier time. In the example Ed offers the only thing that kept the couple from marrying earlier was a state prohibition from their doing so, thus resulting in an unfair distribution of benefits upon one spouse’s death. Facts here matter, and a wholesale solution that sweeps everyone into marriage’s shadow strikes me as creating its own set of injustices that the law can avoid by undertaking individualized inquiries about the marital intent of the parties in the pre-Obergefell era.
Thank you Ed for reading the book and for engaging it so carefully.
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.
My comments on Professor Kim Mutcherson’s review of Wedlocked, Queering the Family in an Age of Marriage Equality, lead me to Professor Tey Meadow’s reflections, “Our Precious Perversions.” Mutcherson asks what the queer outside of marriage might look like, and Meadow suggests that queerness may be found on marriage’s inside. Meadow wonders aloud of how we might use marriage to “recuperate some of the radical potential of queer kinship,” and notes the frequency with which the media casts a prying eye on married couples who are committed to “polyamory and kink” among other non-normative sexualities. So, Meadow proposes, since marriage is here to stay, let’s see what happens if and when we cultivate perversion within the marital form.
The couple highlighted in Meadow’s review is “A Composer and His Wife,” a white Austrian man and an African American women who have chosen to supplement their marital contract with a kind of pre-, or extra-nuptial agreement: a BDSM contract that structures their marriage through a set of scripts of subjugation, discipline, and punishment. (A recent Note published in the Harvard Law Review explores the enforceability of these sorts of contracts, Nonbinding Bondage, 128 Harv. L. Rev. 713 (2014).) This sort of agreement suggests a wide range of interesting readings. Given that the legal and cultural structure of marriage, unmodified by anything like a BDSM contract which can be seen on websites similar to watch my girlfriend, entails power relations and scripts of subjugation, discipline, and punishment, can the addition of the BDSM contract merely amplify what is already going on in a “vanilla-esque” marriage? Or does the component of explicit consent to a relation of power contained in these extra-marital contracts render the power relations within a marriage more just? Is justice, for that matter, a value even relevant to marriage, whether of the modified or unmodified sort?
Returning to Professor Mutcherson’s provocations, should we, or might we consider the composer and his wife’s relationship queer in some way? By the term queer I don’t mean simply strange or odd, but rather self-consciously aiming a kind of subterfuge, irony or exploitation of law’s internal contradictions. Yet the composer and his wife seem uninterested in law, or Law, and instead find old desires satisfied in new ways through the forms of dominance and subjection that structure their life together. That structure doesn’t come from marriage, but from their extra-marital “agreement.” I wonder, as I read the New York Times article (curiously in the Arts section as a music review) about their relationship and why they chose to marry. The husband, Georg Friedrich Haas, the Times reports, has suffered three “failed marriages” and what renders this marriage a “success” is his capacity to “come out” as “the dominant figure in a dominant-submissive power dynamic.”
Actually, I’d rather disassociate the marriage from the BDSM relationship, similar to what can be found websites like www.twinki.xxx here – these are actually two overlapping forms of governance that coexist harmoniously so long as the relationship is working. Yet, once one or the other party wants out, the law of marriage, or even criminal law, will likely trump whatever side agreement they’ve made with one another, and the consent upon which that agreement was premised. What was consensual caning or whipping when things are going well becomes assault, or worse, a hate crime when things fall apart. The law has taken a very dim view of consent in BDSM agreements, refusing to allow parties to consent to what would otherwise be considered assault. (See the Spanner, Twyman and other cases.)
In this sense, the submissive wife in this marriage, Mollena Williams-Haas, consents to her submission in the shadow of the law of marriage and criminal assault, laws that have not evacuated the scene of her subjection, but rather await her summons. Marriage does not serve as a container or holding environment for the celebration of their perverse desires, rather it merely tolerates the forms of power to which they have contracted and stands ready to assert its own form of governance as soon as it is inclined to do so. In this regard, it would not have been surprising to see the Domestic Violence Unit of the Manhattan District Attorney’s office arrest Georg Haas after the Times ran this story. After all, he confessed in print to criminal assault. What is more, feminist reforms to the law have contributed to the law’s capacity to intervene in a marriage to offer “protection” to the more vulnerable member of the relationship – a complaining witness or victim is not necessary to initiate a criminal prosecution in the domestic violence context. For better or for worse, the law would have a very hard time distinguishing between a woman suffering from battered women’s syndrome and Mollena Williams-Haas’s consent to systematic subjugation in her marriage.
Meadow ends the review with the following: “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.” I want to take this kind of call seriously, but I’m not sure what it means. What lesson, lesson about marriage, should we draw from Haas and Williams’ relationship? What difference does it make that they are married? In what ways does the fact that their precious perversions are taking place in a space governed by the law of marriage hold out any kind of radical re-working of marriage itself? Meadow may share something here with Ed Stein, who in his review of Wedlocked posed the possibility that same-sex couples may rework the meaning of marriage in new and exciting ways.
Professor Jana Singer offers a direct challenge to one set of arguments I make in Wedlocked, that is that lifting of the bar against same-sex couples marrying may have the negative, and unintended effect, of undermining some of the progressively distributional rules contained in the current law of divorce and equitable distribution. These rules, I argue, have evolved in such a way as to account for the gendered nature of marriage and as a corrective of the gender-based economic inequality that is often reinforced at the end of a marriage. Professor Singer argues that I overstate the degree to which distributional rules at the time of divorce are guided by a commitment to address gender-based power in marriage specifically, or in the wage labor market more generally.
In one respect, Singer’s critique of this argument in Wedlocked echoes some accounts of why the marriage equality movement gained such success so quickly: marriage rights for same-sex couples represented the logical next step in what has been a decades-long modernization of the rules of marriage, from status to contract. In many respects I suppose Professor Singer is correct, but one of the insights I sought to offer in the book was the notion that gender remains quite sticky in the minds of many family court judges – creating a situation where it is difficult for them to shake loose from the notion that a marriage is made up of a husband and a wife. The anecdotes I offer in the book illustrate the circumstances in which judges interpret two women in a marriage in terms that render one of them a husband and the other a wife – economic disparities and wage labor market power differentials between the two female spouses are looked to to slot one of them in the husband role and the other in the wife role. Any understanding of the nature of their relationship and the agreements they made between one another that do not mirror a husband/wife script are invisible to these judges.
That all said, Professor Singer’s comments are well-taken and it remains to be seen how judges presiding over same-sex divorces will apply heteronormative presumptions and preferences. Let’s check back in in ten years!
Michele Zavos brings the eye of a legal practitioner with years of lesbian-feminist activism to her reading of Wedlocked. Given that I wrote the book intending it to be both interesting and accessible to smart non-academic readers I am delighted that Michele has contributed to this symposium.
Michele and I came of age around the same time and we both have watched more radical politics of the 1970s and 1980s evolve into today’s more conventional gay rights movement. The HIV/AIDS epidemic played a critical role in my life, both personally and professionally (most of my career as a litigator before going into the academy was devoted to HIV discrimination cases), just as it did for Michele. The lessons I drew from that period all point in a direction other than marriage: we developed complex and strong families or kin-of-choice during that period, relying not only on a “spousal-equivalent” (remember that term?) for the care that was needed when one got sick, but turning instead to a web of friends, ex-lovers and others. An inability to marry wasn’t what stood between people with HIV disease and their loved ones, rather visceral homophobia and AIDS-phobia posed a much greater threat to our security and care.
To say that the politics of this era “morphed into Evan Wolfson’s focus on establishing marriage equality” papers over the ugly battles that ended in the capture of “our” national organizations by the “freedom to marry” campaign. As I mentioned in my comment to Elizabeth Clement’s contribution to this symposium, I witnessed first hand the toll that that evolution in the LGBT movement took on the likes of Paula Ettelbrick, activists who believed strongly that our work should be focused on shoring up life outside marriage. It felt to Paula and others like a hostile takeover.
I appreciate that Michele may have a somewhat different story to tell about the shift in values in our community. That’s cool. But what Wedlocked aimed to do, among other things, is restore a critical, left perspective on the promise of state recognition. Surely that recognition is something many same-sex couples my want, but our politics ought to aim for something deeper than satisfying what feels good. (I would frame the desire many people in the lesbian and gay community have as a yearning for recognition by the state more than for “belonging” as Zavos puts it.)
Professor June Carbone’s generous and generative reading of Wedlocked poses one of the most difficult questions we face in the post-Obergefell era: What is marriage for? Professor Carbone would surely agree with the position I take in the book, namely that prohibiting same-sex couples from marrying is clearly wrong and ought to be treated as unconstitutional. But agreement on this point doesn’t necessarily entail agreement on the reasoning underlying the unconstitutionality of a ban on same-sex marriage. Nor would it entail agreement on the question of whether marriage remains an institution we ought to fight for and defend now that the Supreme Court has rendered it a more egalitarian institution.
It is these more difficult questions that Professor Carbone’s reading of Wedlocked unearths. Returning to her framing of the question: “What is marriage for?”, the book aims to point out how marriage is necessary to, or “for,” family security if and only if we abandon efforts to render non-marital families more secure. The dissolution of civil union and domestic partnership laws in the aftermath of winning marriage equality contributes to reinforcement of marriage as the best, if not only, means to “make a family.”
Professor Carbone poses an equally challenging question when she asks whether the divorcing lesbian couple I describe (Ruth and Beth) could just as easily be Ruth and Rick – and that the issues I raise about the structures of power in their relationship are similarly at stake in many heterosexual relationships. Carbone pushes this inquiry further to consider deeply gendered assumptions about marriage more generally. “Are,” she asks, “these assumptions still appropriate for anyone’s relationships? What has made marriage equality possible is the move away from marriage as an intrinsically gendered institution.”
I’m not sure I agree that marriage is no longer an intrinsically gendered institution. Of course it isn’t for some people, but in many cases marriage seems to exert a kind of gendered gravitational pull on a couple – both same- and different-sex couples – in ways that turn them into “husbands” and “wives” or “Dads” and “Moms.” I watch this pull with same-sex couples of a certain class when they decide to have kids: one stays in the wage labor market and the other stays home to be a full time parent. In ways too complex to unpack here, we may be watching the butch/femme roles that used to characterize so many lesbian relationships transform into wife/husband roles (I deliberately contrasted butch/femme to wife/husband so as to disrupt the idea that butches would become husbands and femmes would become wives. Spousal roles have turned out not to map onto previously familiar identities of butch and femme. Class, rather than gendered or sexual identity tends to drive spousal roles in many cases.)
As I discuss in Wedlocked the fact that marriage transforms two people into one economic unit brings with it certain moral hazards. These hazards include the perverse incentive for one person in the couple to become economically dependent on the economic and legal structure that marriage creates – and in the event the marriage ends, renders that person more vulnerable when they exit the marriage. This person is usually the “wife/mother” regardless of their sex. It is this moral hazard that I think bears attention as we consider how same-sex couples might transform the gendered nature of this institution. Creating circumstances where men can be wives and women can be husbands isn’t the kind of gender radicalism I have in mind, to be sure.
I guess marriage is most appropriately for those couples that want to maintain a deeply gendered relationship. As I end the book: “If those are roles you’re happy with, then marriage is for you. But if you intend to resist their pull, then alternative relationship forms ought to be a viable alternative. In ways as yet under-examined by the lesbian and gay community, to be wed is to be locked into a set of traditions and roles that we had no part in creating and that were not formed with us in mind.”