UC Santa Cruz
Recent Supreme Court decisions regarding same-sex marriage, United States vs. Windsor and Hollingsworth vs. Perry, were greeted with celebration by LGBT people, by American liberals, and most of all, by American LGBT liberals. Polls indicate that support for gay marriage is quickly becoming a centrist issue in American politics, a fact that has Republicans scrambling to triangulate for the midterm elections. In light of the historic nature of Windsor, and the groundswell of public support for gay marriage, leftist and queer critics of marriage have been mostly subdued.
Queer critiques of marriage have, in the last two decades, become a part of a well-known political theory critique of rights. According to this critique, rights privatize; rights individualize; rights normalize. Therefore, they undo much of what these theorists regard as most promising about political action—its collective moments, its way of creating public spaces and events, its way of bringing disagreement to the level of perception—at the very moment that the demands for rights succeed. Perhaps no critic of rights has made this point, regarding gay marriage in particular, so succinctly as Michael Warner. His book The Trouble with Normal shines klieg lights on the conservative impulses and entailments of the fight for same-sex marriage. With critiques like his in mind, many political theorists have come to regard struggles for rights, rather than their achievement, as the setting for genuinely political—that is, collective, contested, and powerful—events.
I have been inspired time and again by Warner’s analysis (it’s particularly brilliant in the hands of undergraduates), and I find a great deal of truth in the larger critique of rights that animates it. When the first analyses of George W. Bush’s 2004 presidential win identified (wrongly, it turns out) his party’s mobilization of anti-gay marriage sentiment as the linchpin of GOP victory, it seemed that the gay marriage movement had done double damage to its putatively progressive politics. But now I find myself compelled by the striking political rebound of the LGBT movement, in and since the November 2012 elections, a turnaround that has pivoted on same-sex marriage. What should we make of this push for and attainment of rights? What is its political potential?
While these questions have been in the back of my mind, I happened to read “Flagrant Conduct” by Dale Carpenter, which describes the background, events, and legal strategy behind Lawrence v. Texas. That case, handed down 10 years ago to the day of the Windsor decision, struck down “homosexual conduct” laws everywhere as unconstitutional. It’s worth taking a moment to remember Lawrence, because it stands behind something we now read and hear everywhere (especially in the last weeks), when it comes to how Americans are writing and talking about gay people. In the era of homosexual conduct laws and Bowers v. Hardwick, public discussion of homosexuality was carried out almost exclusively in terms of sex acts. While this discourse lives on, both in the far right and in pornography (a coincidence that’s worth pondering), everywhere today we are hearing and speaking of gay lives as a matter of relationships, affection, and love.
Carpenter’s account makes clear that changing the legal discourse in this direction was Lambda Legal’s core strategy in Lawrence. This strategy was strikingly successful, as judged by Justice Kennedy’s Opinion, in which he frames “homosexual conduct” entirely in terms of developing intimacy and establishing relationships. In fact, neither sex acts nor the vaunted privacy of the bedroom were ever even mentioned in the opinion or the oral arguments, despite these having been the very matters upon which Bowers had turned. Proponents of gay marriage broadly embraced the new discourse of relationships, affection, and intimacy that Lawrence validated.
Queer theorists and activists were apt to be wary of this shift, especially as talk about intimacy became ever more centered on the validation of marriage. Throughout decades of vilification of same-sex erotic and sexual expression, many had fought to promote sex-positive messages in their communities, and to the general public. This strategy was crucial in the face of the AIDS crisis, given the urgent need for frank talk about sex to counter the epidemic. Overall, one might worry that the coupling of intimacy and state recognition that marriage preforms threatens to push non-normative expressions of same-sex affiliation back into the shadows.
But reading Carpenter’s book alongside the reactions to the more recent Supreme Court rulings has pulled me back from that conclusion. Carpenter argues that, despite the claims of Houston police officers, John Lawrence and Tyron Garner were not having sex when the officers entered Lawrence’s apartment. (The men never entered a statement about this, since disputing the charge of homosexual conduct on factual grounds may have foreclosed the constitutional question.) Lawrence and Garner’s relationship was “platonic;” they were not a couple. In other words, even friendship among gays and lesbians was subject to criminalization by homosexual conduct laws like Texas’s. Bringing this back to the critique of rights, the right articulated in Lawrence (something like intimate affiliation) is, effectively, quite the opposite of individualization, of privatization, and perhaps even normalization. Could Lawrence have been a step toward the queering of rights?
While Windsor is the logical extension of Kennedy’s Opinion in Lawrence, it may appear to narrow the conversation from the broad array of relationships forged by gays and lesbians, to those validated by the legal pairing—to represent, in other words, the recrudescence of rights’ normalizing and privatizing power. But this view would put the carriage before the horse. Sex bounded by procreation is no longer what the law hails as the primordial source of relationships. Instead it hails human love, with its power (celebrated by Augustine and vaunted by romantic moderns everywhere) to exceed boundaries of every kind. While the state may regulate sex, it declares that it must not regulate human love; indeed, the state now figures itself as responding to it.
To be sure, this discourse of love in its own way conceals the material privileges of marriage, including its historical and practical relation to property. But this shift to a discourse of love brings with it openings for queering marriage. There is, of course, the scrambling of the gender codes and hierarchies that long defined marriage along with normative sexual conduct. And the reaction to Windsor of conservatives now fearing the legalization of plural marriage —and of polyamory activists in favor of it —hints at further queer potential in the new discourse framing gay identity in terms of friendship, of intimacy, and of love. Not surprisingly, liberals are quick to dismiss this possibility, perhaps out of anxiety that polyamory might spoil the wedding party—but a queer radical might take heart in conservatives’ insistence that same-sex nuptials can transform marriage beyond their recognition.
More to the point, however, the fight for a right to same-sex affiliation and marriage has unleashed forces that cannot be normalized, individualized, and privatized away as gay marriage wins further legal victories. The move away from a discourse that frames gay identity in terms of sex, to one that speaks of affection, intimacy, and love is itself the most important aspect of recent legislative and legal victories. This is particularly so because of the language it gives to the young. Discovering oneself to be gay is no longer framed largely in terms of a desire for certain acts that are mainly represented in the pornographies populating the right-wing imagination and profiting the sex industry. Instead, new generations will articulate themselves in terms of how a person relates, feels affection, befriends, and loves. This, more so than formal legal equality, is the heart of the matter we are witnessing in these times.