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9 posts from August 2011

August 31, 2011

Franke on "The Afterlife of Homophobia"

From Gender and Sexuality Law blog:

By Katherine Franke[1]

Consider two events that dominated the news in the summer of 2011: Anthony Weiner resigned from Congress after it became public that he had been tweeting to some of his female Twitter followers photos of himself in various stages of undress, and New York State became the largest and most significant state in the U.S. to grant same-sex couples the right to marry.  Two iconic images captured this juxtaposition: a thumbnail of Weiner’s bulging briefs and wedding cakes topped with same-sex couples.

While these two events may bear no strict causal relation to one another, they are meaningfully related synchronically.  How so?  The panic that unfolded upon the revelation of Representative Weiner’s taste for a kind of public sexuality that Twitter enabled was fueled in important respects by something I’ll call the afterlife of homophobia; an afterlife that appeared in the wake of the success of same-sex couples’ demand for marriage equality rights.   The summer of 2011 marked an important turning-point in the geography and politics of sex: public sex, previously a domain dominated by the specter of a hypersexualized gay man, became the province of the irresponsible, foolish, and self-destructive heterosexual man, such as Anthony Weiner.  Meanwhile, homosexuals were busy domesticating their sexuality in the private domain of the family.  Just as hetero-sex shamefully seeped out into the open, homo-sex disappeared from view into the dignified pickets of private kinship.  While Anthony Weiner was exploring—at his peril—new sexual publics that social media made possible, same-sex couples celebrated their official, legal inclusion in the domain of the traditional, sexual private.

The twin projects of privatization and legitimization of homosexuality began, of course, with Justice Anthony Kennedy in his 2003 opinion in Lawrence v. Texas, in which he put an end to the identity of the homosexual as the sodomite by refiguring the homosexual in homosocial terms.  As I have written elsewhere:

With respect to the right to make decisions about intimate affiliations in private settings, Justice Kennedy notes that “[p]ersons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do,” and that the statutes at issue in Lawrence and in Bowers “seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals.”  Note that the analogy here is between persons in a homosexual relationship and heterosexual persons.  Thus, the issue in Lawrence, as well as in Bowers, was not the right to engage in certain sexual conduct—that, says Kennedy, would be demeaning to John Lawrence and Tyron Garner.  They would be disgraced just as a married couple would be if the claim were made that “marriage is simply about the right to have sexual intercourse.”  Kennedy writes that “[sexual conduct] can be but one element in a personal bond that is more enduring.”  More enduring than what?  Than sex?[2]

Justice Kennedy’s finding in Lawrence that the Texas sodomy law violated a fundamental liberty right was premised upon a story he made up about Lawrence and Gardner being in a relationship in which their interactions allowed them to elaborate their “concept of existence, of meaning, of the universe, and of the mystery of human life.”  Dale Carpenter’s work on the backstory of this “relationship” tells a quite different tale— but the truth of the matter is really irrelevant.[3]  What is important is that the Supreme Court was willing to welcome lesbian and gay people into the community of rights-bearing citizens not because of the sex we have, but rather because of the “enduring personal bonds” we seek—bonds that gain constitutional protection for reasons that are not squarely or even obliquely about sex.

This new emplotment of gay life, one animated by characters who are kin not hookups, whose connection is romantic not sexual, is taken up in the briefs in the marriage equality cases.  The homosexual portrayed in these filings is the soccer mom, the partner who is a good provider, the loving father, the de-facto daughter-in-law, and the fellow who attends stamp-collecting conventions.  The legitimate homosexual is he or she who is willing to keep quiet about the sex part of homosexual.  In this sense, the space cleared out by the vanquishing of sodomy law’s homophobia is a space for the desexualized gay subject who longs for the stability and fidelity of “enduring personal bonds.”

In the marriage cases, the decent, loving, faithful gay character is met by adamant arguments from the other side insisting that marriage is essentially a procreative enterprise, and that since only a man and a woman can procreate, marriage can only be made up of husbands and wives.  In response to this heterosexualization of marriage, the same-sex couples insist that “we too have children, just not the way you do.”  It makes sense for the plaintiffs in these cases to insist that there are ways to make babies that aren’t essentially heterosexual, but the consequence of this argument is that homo-sex loses any political, legal, or social significance.  Marriage, it seems, is where homo-sex goes to die.  While the path of the argument may not have been one we initiated, lesbian and gay advocates have been complicit in the marginalization, if not erasure, of homo-sex and other forms of sex that are the excess over reproduction. Of course the female orgasm, contraception, and abortion have a stake in this politics as well.  But who, if not lesbian and gay people, see themselves as having an interest in carrying a brief for sex?  Sex for its own sake, and as part of a politics of freedom.

How did we get to this curious place, a place with a politics that would be almost unimaginable to the sexual freedom fighters of Stonewall?  Once here, should lesbian and gay-rights activists care about sex in public any longer?  Should we cede that terrain to misfits such as Weiner while we celebrate the legitimization of same-sex love that marriage rights afford, or do we maintain a stake, or at least an interest, in the notion of sexual publics?  Better yet, now that homo-sex has become privatized is sex in public only of interest to those who define themselves as Queer?

The space evacuated by the repeal of sodomy laws need not be taken up immediately or entirely by the domain of kinship and the family—but there is a great risk that it would be.  This space could be one in which a kind of sexual legibility might emerge that is not private, does not entail property relations, is not matrimonial, does not take the couple form, and is not necessarily enduring.  The terms of its zoning would be beyond marriage, kinship, or the family.  Although serious attachments may form, they simply wouldn’t be ones whose terms of legibility are set out by the state.  It is these spaces that are most threatened by homophobia’s afterlife.

In a time when homosexuality has been heteronormativized (so long as it conforms to the hygienic rules of marriage) certain forms of sex-based shame and perversion have been rendered all the more vulnerable to social and legal stigma.  Here we find the afterlife of homophobia.  Homophobia’s work has shifted from buttressing the criminalization of sodomy, and from justifying the ongoing exclusion of same-sex couples from legal marriage, to imposing a kind of penalty on those people, regardless of their sexual orientation, who cannot or will not organize their desires, their attachments, and their values in a way that echoes the model homo-citizens recounted in the briefs in the same sex marriage cases.  The desires these cases leave out find themselves ostracized into a domain of increasingly marginalized illegitimacy, if not degeneracy.  Now, as much as, or even more than ever, these outlaws are regarded by more conventional members of the community as out of step with the main current of gay politics—and indeed they are seen to pose a threat to that politics insofar as they undermine the claims to decency, respectability, and dignity that the plaintiffs in the marriage cases claim entitle them to the benefits of legal marriage.

So here’s where Public Sex can be so crucial as a site for resisting homophobia’s afterlife and for imagining a kind of sexual citizenship that isn’t defined by and through the redemptive pastorality of marriage.  It’s time sex pushed back and resisted a hygienic sexual politics that aims to cleanse homosexuality of its raunchier elaborations, and demanded a legitimate presence in quasi-public spaces such as Twitter and Facebook, along with the more commonly understood public space of the street, the bar, or the bookstore.  Since same-sex marriage advocates have surrendered to, if not embraced, the heteronormativity of the private family, the public sphere may be the last refuge for sexual liberty.  In this sense, Anthony Weiner may be more of an ally in the cause to defend sexual liberty than are lesbian and gay rights advocates.  The elaboration of sexual publics (and by this I don’t mean weddings) and new forms of Public Sex are essential as counterweights that can challenge the hegemony of the matrimonialized gay subject/gay couple.

[notes after the jump]

Continue reading "Franke on "The Afterlife of Homophobia"" »

August 30, 2011

The big picture: marriage itself continues to evolve, with a big push from economics

Following is the transcript from a PBS News Hour segment on "the new geography of marriage;" video here. Both experts being interviewed, who come from quite different political vantage points, agree that divorce rates are driven in significant measure by economics, a pattern that gets reflected geographically in state-by-state comparisons. There is also a broader societal shift in marriage norms, which both different-sex and same-sex couples share.

Extrapolating from these data, one prediction is that we will see significantly higher divorce rates among same-sex couples who are struggling financially (which will be mapped as those who tend to live in the South and West, where the average income is lower) than we will see in same-sex couples who are more economically secure. 

[RAY SUAREZ] Among the newly-released studies is a first-of-its-kind Census Bureau analysis of marriage and divorce rates by region. The report, published last week, found that the South and West had the highest rates of divorce, while the Northeast ranked the lowest of the four regions. 

At the same time, the number of unmarried Americans has reached a historic high, as the census also found that 30 percent of Americans have never been married, the largest percentage in the past 60 years. And yet another census snapshot released by the Williams Institute at the University of California, Los Angeles, found that same-sex couples have dispersed from urban enclaves to other parts of the country. 

Joining us now to look at what all this may mean for the institution of marriage and its role in American life are David Blankenhorn, founder of the Institute for American Values, and Elaine Tyler May, professor of American studies and history at the University of Minnesota. 

David Blankenhorn, are we in the midst of a redefinition of American marriage, why people get married, when they do it in their lives, even where they do it and what they think it's for? 

DAVID BLANKENHORN, Institute for American Values: Yes. 
I think the shift in broad terms is toward -- for marriage as an institution to marriage as a private relationship, an option for a private relationship. You know, in our parents and grandparents' generation, when you got married you were joining an institution that had authority, told you the rules. You were supposed to act in accord with its procedures. Now the shift is toward private ordering. Each individual couple defines the relationship for themselves. One way to think about it is, in an earlier day, the marriage vow defined the couple. And now it's really the couple defining the marriage vow... 

RAY SUAREZ: Professor May, you have been writing about marriage for decades. Do you buy that definition, couples, rather than submitting themselves to established ideas, shaping marriage for themselves? 

ELAINE TYLER MAY, University of Minnesota: Well, I don't think it's that new, really, that couples have been shaping the institution of marriage. I think what's different is that people don't need to marry anymore for the same reasons that they did in the past, and that there have always been changes in the patterns of marriage demography for the last 100 years or so, and longer ago than that. 

...[W]hat we see today is a very different kind of pattern... But we have to think about all the changes that have happened in the society..., women being able to work at jobs that they used to have no access to.... I think what we're seeing now is ...people are marrying because they want that sense of commitment, they want that sense of citizenship that marriage confers, and they want to express themselves as part of a couple that is committed to each other by love. 

RAY SUAREZ: David Blankenhorn, when you look at these statistics, unprecedented numbers of people, well, in recent history reaching 30, 40 and 50 without ever having been married, not divorced, but without ever, ever having been married, large numbers of people choosing to have children inside unions that they make outside of marriage. Are you saying that we're in a new place, or do you accept Professor May's idea that -- just sort of taking a snapshot for an institution that's always changing? 

DAVID BLANKENHORN: Well, the institution is always changing. That's true. But we are in the middle of a definable long-term shift away from the authority of the institution. The most fundamental sign of this, I think, in terms of social meaning is that, several generations ago, a majority of Americans said that, if you're having trouble in your marriage, you should stay together for the sake of the children. 

And now a majority of Americans say that you shouldn't do that; that's a bad idea. So, another -- a related issue is the, really, breaking of the link between marriage and childbearing. It used to be that you would never -- you know, having a child outside of marriage was frowned on by society. You really wanted to avoid that.

Now it's perfectly acceptable among many Americans. So [in] this shift away from the institutional authority of marriage..., I think the profoundest consequences have to do with the living arrangements of children, but it has to do also with just a new way that we're thinking about what it means to be married. 

RAY SUAREZ: Professor May, a lot of the new data has to do with where things are happening, gay couples moving outside of enclaves to suburban collar counties, the marriage statistics coming in from the South and West showing persistently higher rates of divorce than in the Northeast and Middle Atlantic. Talk a little bit about what you see when you look at a map of America. 

ELAINE TYLER MAY: Well, I think what we see is what we have always seen. And that is that, when people are in economic distress, they're much more likely to face marital tensions and much more likely to divorce. And we have large numbers of people in poverty and in stressful economic situations in the South and the West, more so than in the Northeast. And I think that explains a lot of what we're seeing here. 

I think what we have to watch out for is the notion of cause and effect. And you often hear that, when people have marriages that fall apart, that is a cause of poverty. Well, it is for women and children, for sure, because they have a harder time supporting themselves, but the fact is that it's poverty itself and economic stress that causes divorce in the first place. 

And that's why I think we're seeing more of it in these areas where there are greater concentrations of people who are struggling. Now, as far as gay couples are concerned, I think it's clear that, as the country has become more gay-friendly all over, that gay people have felt that it was OK to live wherever they wanted to and be accepted... 

RAY SUAREZ: Let me go back to David Blankenhorn for a response. What do you see happening geographically with American marriage, both in divorce and gay households? 

DAVID BLANKENHORN: I agree with what Professor May says. I would add to the issue of more poverty in the high divorce states, you also have younger people, people with lower levels of education and higher rates of geographical mobility. And all of those factors, plus low-income, correlates with more family instability. 

...[A]nd I agree on the issue of the sort of mainstreaming, you know, the acceptance of gay and lesbian people, gay and lesbian relationships, and the sort of breaking up of the enclaves. Gay and lesbian people now can live anywhere they want to live. And I think that's what we're seeing in these numbers.

White House gets testy about obstruction from Senate, goes visual

From the White House web page:


August 29, 2011

States pass anti-Phelps-style protest laws, sure to be challenged

In Snyder v. Phelps, the Supreme Court ruled last spring that the loony Westboro Church contingent that haunts servicemember funerals with placards condemning tolerance for homosexuality could not be sued for infliction of emotional distress based on the content of their protest. Several states have responded with statutes that seek to address the question, as McClatchy News Service reports:

...California lawmakers [have] joined their counterparts in Arizona, Illinois and other states in passing tougher new restrictions on protests at funerals. In particular, legislators hope to deter members of a small, aggressively loud Kansas church who travel long distances to picket military funerals, where they often proclaim that dead soldiers are God's punishment for America's sins....

Judges, however, will have the final say on whether legislation muffling speech near funerals can survive First Amendment challenges. A review of relevant cases suggests the new restrictions may reach farther than courts have been willing to go.

"There will be a challenge to the California legislation," Topeka, Kan.-based attorney Margie Phelps promised Friday. "We're preparing the suit now."

A federal appeals court already is considering separate challenges to funeral protest restrictions imposed in Missouri and Nebraska. Phelps said a ruling by the 8th U.S. Circuit Court of Appeals could come "any day." Potentially, she added, the Supreme Court could take up the controversy "within a year."

Phelps represents the Westboro Baptist Church of Topeka, whose members primarily come from the extended Phelps family. They've traveled across the country to picket military funerals, decrying America's sins and deploying signs with graphic messages such as "God Hates Fags" and "Thank God for Dead Soldiers."...

"Westboro's funeral picketing is certainly hurtful and its contribution to public discourse may be negligible," wrote Chief Justice John Roberts, but "as a nation we have chosen ... to protect even hurtful speech on public issues to ensure that we do not stifle public debate."

But the court's 8-1 decision avoided taking a position on state laws and noted that states could potentially impose some "content neutral" restrictions on the "time, place or manner" of funeral protests... 

The California bill ... establishes a 1,000-foot buffer zone in which protests would be banned an hour before and an hour after a funeral service. Arizona imposed a no-protest zone extending 300 feet, while Illinois likewise extended a no-protest zone to 300 feet around military funerals.

The size of the no-protest zones could pose one problem. In 1994, the Supreme Court upheld a 36-foot buffer zone shielding women entering Florida abortion clinics. The court in 1988 likewise upheld a Wisconsin city's law banning picketers "before or about" a private home.

But the high court indicated there are limits to how far a no-protest buffer can stretch. In the 1994 case, justices struck down a broader 300-foot buffer zone around abortion clinics.

"The 300-foot zone would ban general marching through residential neighborhoods, or even walking a route in front of an entire block of houses," then-Chief Justice William Rehnquist noted, adding there was not "sufficient justification for this broad a ban on picketing."

August 28, 2011

Northern District of California court to consider release of Prop 8 trial video

Tomorrow at 9 am PDT, federal Judge James Ware, to whom the Perry v. Brown case was transferred after Judge Walker's retirement, will hear arguments on plaintiffs' motion to release to the public the video tapes made of the trial, which occurred more than a year ago.

Monday's L A Times will carry this op-ed by Lucy Dalglish, the E.D. of the Reporters Committee for Freedom of the Press (excerpted):

"What transpires in the court room is public property." Writing those words in 1947, the U.S. Supreme Court affirmed a principle so intrinsic to our national character that it predates the Declaration of Independence.

America's founders believed that justice was facilitated by openness. In 1774, the first Continental Congress specifically stated that trials should occur "in open court, before as many of the people as choose to attend." Their reasoning was that public openness would ensure the honesty of judges, witnesses and jurors, who could not "injure [the defendant] without injuring their own reputation."...

In today's fast-paced, globalized, digital society, audiovisual records are the best way to bring a trial or court hearing to life and to throw open the doors of our justice system to "as many of the people as choose to attend," not just those lucky enough to sit in the courtroom...

Proponents of Proposition 8 contend that the trial videos should be sealed to prevent the potential intimidation of their two expert witnesses who testified against gay marriage in this case, or the possibility of intimidation in unrelated hypothetical future cases.

The plaintiffs, who successfully presented strong evidence that persuaded the then-chief judge of the U.S. District Court for the Northern District of California to declare Proposition 8 unconstitutional, point out that these claims of intimidation are not only unsubstantiated but also moot, since the trial is over and the witnesses' names and testimony are already part of the public record.

... It is simply time for the courts to acknowledge that video records are a natural, lawful and useful evolution in the American judicial tradition of open court proceedings and judicial records.

The beneficial influences of such a video record have already been demonstrated in studies showing that witnesses tend to be more truthful, specific and detail-oriented when facing a camera they believe is recording their testimony...

The concept of an "open court, before as many people as choose to attend," is reinforced through the power of video: Virtually anyone who wants to "attend" or study a trial can now do so, and in a case such as Perry, where the lives of millions of Americans are materially affected by the outcome, such a development is clearly in the public interest...

August 25, 2011

I thought they all lived somewhere else

Ah, the power of numbers and maps. Using Census Bureau data (that counts only households, and therefore can identify same-sex couples but not individual lgbt persons), Williams Institute ace demographer Gary Gates continues to generate analyses that tell us and the rest of the world where we are and where we cluster.

And there is clearly something about this information that strikes the world as big news, big enough for the N Y Times to run an article about it on page 1 above the fold. Good golly, those gays really are everywhere! Like maps of divorce rates, health insurance coverage, foreclosures, obesity, religiosity, you name it - if you can map it, it must be real.

And so my friend Gary, the merry wizard of Westwood, gleefully crunches numbers.

August 24, 2011

Will marriage make a difference in will contests?

From Keen News Service:

One obituary described Ellyn Farley as a happy, studious, pet-loving attorney married to her spouse Jennifer Tobits and only “reluctantly” wearing dresses to attend Mass. The other described her as a fierce litigator and champion to the underdog, survived by her parents, her brother, various aunts and uncles, a godmother, and “good friends for life who will be in her heart forever, Jennifer and Nancy, of Chicago; and numerous cousins and other devoted friends.”

The first was published in the Chicago Tribune, the city where Farley lived with her spouse Jennifer Tobits. The latter was published in the Roanoke Times, in Virginia, where Farley grew up. The first was drafted by one of the lesbian couple’s friends and was reviewed and edited by Tobits. The latter was coordinated by Farley’s parents who, according to Tobits, did not consult her about its contents. The first makes clear that Farley was married to a woman; the latter scrubs that reality out of her life story.

Now, Farley’s surviving spouse, Jennifer Tobits, and her parents, Joan and David Farley, are squaring off in two different courts over their different portrayals of Farley. In probate court in Illinois, they are fighting over Farley’s will. In a federal court in Pennsylvania, where Farley’s law firm is headquartered, they are trying to influence a judge’s determination of who should properly receive the benefits of Farley’s profit-sharing plan.

“This is the new era,” said Shannon Minter, legal director of the San Francisco-based National Center for Lesbian Rights. “We are all familiar with hearing stories about parents stepping in and not honoring their children’s relationships and trying to take all the assets. Now that so many couples are in marriages or civil unions or domestic partnerships, it’s still happening; but we have a degree … of legal protections that we didn’t have before.” But in this new era of litigation, Minter said, “there is a lot of confusion” caused by the federal Defense of Marriage Act (DOMA).

DOMA is the federal law that prohibits the federal government from recognizing marriages between same-sex couples...Farley’s parents, represented by the right-wing Thomas More Society, a pro-life law firm, say DOMA precludes the courts from awarding any of Farley’s death benefits to Tobits. Minter of NCLR, which is representing Tobits, says DOMA does not apply to private employers, such as Farley’s law firm.

Continue reading "Will marriage make a difference in will contests?" »

SCOTUSblog hosts debate on constitutionality of marriage exclusions

Over at SCOTUSblog, there is yet another symposium/debate on gay marriage, specifically on whether/when/how and why laws banning it or barring recognition of it are likely to hit the dust. Combatants include 

Carlos Ball – Rutgers University School of Law

Bob Barr -  Former Representative for  Georgia’s Seventh Congressional District

Thomas Berg – University of St. Thomas School of Law

Dale Carpenter – University of Minnesota Law School

Erwin Chemerinsky – UC Irvine School of Law

David Cruz – USC Gould School of Law

William C. Duncan – Marriage Law Foundation

John Eastman – Chapman University School of Law

William Eskridge – Yale Law School

Maggie Gallagher – Institute for Marriage and Public Policy

Charles Fried – Harvard Law School

Andrew Koppelman – Northwestern University School of Law

Pamela Karlan – Stanford Law School

Robert Levy – Cato Institute

Laurence Tribe – Harvard Law School

Brian Raum – Alliance Defense Fund

Ruthann Robson – CUNY School of Law

Robin Wilson – Washington & Lee School of Law

Kenji Yoshino – New York University School of Law

Here's a sane contribution - with which I happen to agree :>) - from Andy Koppelman:

The Court hasn’t recognized a new suspect classification in decades, but it won’t need to take that step in order to strike down [DoMA].  For non-suspect classifications, the constitutional test is what is called rational basis review:  the law will be upheld in court if it is “rationally related to a legitimate state interest” (New Orleans v. Dukes). This usually means that the law will be upheld.  In a few rare cases, however, the Court has used the rational basis test to strike down laws.  In these cases, the Court deploys what scholars have called “rational basis with bite,” to distinguish it from the toothless test that is ordinarily applied.  This is the basis on which the Court is likely to invalidate DOMA.

August 09, 2011

Colombia following Canadian / South African path to gay marriage

In Colombia, the countdown has begun on the two years that the Constitutional Court gave Congress to extend marriage rights to gay couples. The Constitutional Court ruled late last month that Columbia’s gay and lesbian citizens currently lack the full set of rights afforded to heterosexual married couples in Columbia, and instructed the Columbian Congress to pass a remedy through “comprehensive, systematic, and orderly legislation” by June 20, 2013 to address the imbalance. The court’s ruling added that should country’s lawmakers fail to pass legislation within that time, LGBT couples will be permitted to go before a notary or a court to have their partnership officially recognized.

The combination of a determination that exclusion from marriage is unconstitutional and a decision to, in essence, punt the case to the legislature to fashion a remedy is not new. In 1999, after this kind of ruling in its state supreme court, Vermont adopted a civil unions law. (The Vermont legislature has since amended its marriage law to allow same-sex couples to marry.) In Canada (2005) and South Africa (2006), the Parliament established the right of same-sex couples to marry after the courts directed it to act.

In the past, the Colombian Congress has failed to enact protections for gay couples despite judicial rulings. In February 2007, the Constitutional Court of Colombia extended several common-law marriage property rights to same-sex couples. In April and June, the two chambers of the Congress of Colombia approved a same-sex couples bill, which would have been the first in Latin America, and then-President Uribe was expected to sign it. A few days after the June vote, however, a group of conservative senators broke party discipline on what is usually a routine vote on the final reading of a bill and defeated the measure by five votes.

In 2009, the Constitutional Court weighed in again, with a decision declaring that cohabitating same-sex couples must be given all of the same rights as unmarried heterosexual couples receive in common law marriage. These include nationality, residence permits, testimonial privilege, and inheritance. No legislative action was needed for this ruling to be implemented. (Brazil's Supreme Federal Court rendered essentially the same kind of ruling earlier this year, declaring that same-sex couples could establish what Brazilian law recognizes as "stable unions.")

Now the Colombian court is leaning on the legislature to finish the job and amend the marriage law, making this issue one of the major flashpoints in national politics.