Yearly Archives: 2013

(Same) Sex and the City

Jun 26, 2013 Melissa Murray1 comment

Places of transformation and constant activity, cities have always loomed large in the cultural imagination.  Clark Kent left the cornfields of Smallville for Metropolis, and in the process, discovered his true identity as Superman.  Carrie Bradshaw fled to New York City, where she discovered Manolo Blahniks and (after some false starts) true love.  The tale of escape from rural life to urban opportunity is not merely one that plays out in fantasies.  Instead, such migration accounts for large-scale demographic shifts in American society.  In the first half of the twentieth century, African Americans fled the racism and parochialism of small Southern towns for the (relative) freedom and opportunity of Northern and Western cities.

More recently, cities have figured prominently as sites of LGBT identification and acceptance.  Consider the popular “It Gets Better” campaign, which aims to combat the feelings of isolation and despair that LGBT youth often face.  Premised on the idea that coming out and assimilating into a welcoming LGBT community are integral for a happy adulthood, It Gets Better often assumes that LGBT persons seeking a “life worth living” will do so in the cosmopolitan confines of an urban metropolis.  Indeed, in one ad, Michael Bloomberg, the mayor of New York City, rolls out the welcome mat for LGBT youth.  “New York,” he advises, “has always been the place where anyone can go and be who they are supposed to be, regardless of ethnicity, religion, gender, or sexual identity.”

It is not surprising that cities play such a prominent role in the It Gets Better campaign.  From San Francisco and West Hollywood to Atlanta and New York City’s Chelsea neighborhood, gay life and culture seems synonymous with urban living.  And the presence of mainstream LGBT rights groups in these urban centers also makes clear the importance of the urban in the legal construction of gay life and culture.  But if gay rights and quotidian life as an LGBT person depends on city living, what about LGBT people who do not live in cities?  How do we reconcile this vision of gay identity with those LGBT persons who lack the financial wherewithal or the desire for metropolitan living?  How do these people fit into the dominant social and legal tropes of gay life?

These are the questions that Luke Boso poses in his excellent article Urban Bias, Rural Sexual Minorities, and the Courts.  As Boso argues, the conventional narrative that privileges gay urbanity is problematic on a number of fronts:  First, it is unduly exclusive, directing attention to those privileged persons with the ability (financial and otherwise) to leave their communities of origin to make their way to a city.  It also presumes that cities are welcoming spaces for gay arrivistes.  It does not account for those who may feel ill-at-ease—or are made to feel ill-at-ease—because of their less urbane manners or their seemingly provincial attachments to religion and family as key sources of emotional support.

Second, though the conventional narrative is essentially one of liberation, it discounts the degree to which city life may not “necessarily liberate poor people or people of color who find race and class hierarchies within gay communities.”  To that end, the insistence on the gay urban narrative elides further discussion of these hierarchies and helps to cultivate an image of gay life and culture that is largely white and affluent.  This portrait, in turn, fuels critiques of the gay community as socially connected, politically powerful, and affluent—the sorts of images that stymie efforts to denominate LGBT status a suspect class entitled to heightened scrutiny in constitutional analysis.

Third, according to Boso, urban bias is not simply the byproduct of mainstream gay culture.  Judges and other decision-makers further entrench urban biases by “internalizing stereotypes about gay people and gay identity and by explicitly approving the belief that sexual minorities do not belong in small towns.”  With this in mind, Boso recounts a number of cases in which judges access the gay urban narrative in ways that penalize rural LGBT people who try to live openly within the confines of their rural settings.  On this account, the gay urban narrative impedes non-urban LGBT folk who must depend on their local courts, rather than grassroots activism and high-level impact litigation, to protect and advance their rights.

There is much to admire about this article.  In drawing attention to the experiences of rural sexual minorities, Boso takes an intersectional approach, considering the ways in which race, class, education, religiosity, and place all play a role in shaping the LGBT experience.  In so doing, he joins scholars like Russell Robinson, who have critiqued the mainstream LGBT rights movement as inattentive to the needs of those LGBT people who fall outside of its white, urban, privileged paradigm of LGBT identity.

But what I most enjoy about this Article is Boso’s subtle critique of the neoliberalist impulse that undergirds the gay urban narrative.  As Boso recounts, coming out and moving to a city where one can become thoroughly assimilated in mainstream gay culture has become an expectation of gay life.  On this account, one cannot passively wait for a happy ending.  In order for it to get better, the onus is on the individual to uproot herself, flee to a city, and immerse herself in the LGBT community.  If she fails to do so—or if she cannot do so—she deserves whatever lackluster existence can be wrung from her provincial setting.

In insisting that the individual gay man or lesbian is exclusively responsible for his or her future happiness, the gay urban narrative echoes neoliberalism’s prioritization of private responsibility over public provision.  But the trouble with neoliberalism is that its emphasis on private responsibility absolves the state of any obligation to provide assistance to individual citizens.  And this is Boso’s point.  The gay urban narrative makes it incumbent on the individual to take responsibility for transforming her life by relocating to a city.  The state is utterly absolved of any duty to provide LGBT people with the tools—anti-discrimination legislation, employment protections, heightened scrutiny for constitutional claims—to live happy and successful lives wherever they are located.  Thus while the gay urban narrative is one that sounds in the register of liberation, it may actually limit efforts to advance LGBT rights on other fronts.

Boso’s challenge to think about gay life beyond the city is incredibly timely.  Gay urban narratives frame the claims in the two same-sex marriage challenges currently pending before the Supreme Court.  Edith Schlain Windsor, the petitioner in United States v. Windsor, recounts coming out in New York City in the 1960s, meeting the woman who would become her wife at a dance in Greenwich Village, and living a happy life together until her wife’s untimely death.  Likewise, Kris Perry and Sandy Stier, the petitioners in Hollingsworth v. Perry, were both raised in non-urban settings—Bakersfield, California and an Iowa farm town—before moving to the Bay Area, where they came out, met, fell in love, and raised a family together.

Boso’s article complicates Windsor and Perry and prompts important questions.  Do these cases —and their trajectory to the high court—depend on an urban setting and the access and privilege available to LGBT persons who reside in metropolitan areas?  Do claims for same-sex marriage serve the needs of LGBT people who do not live in cities?  Does marriage, like the gay urban narrative, simple affirm the idea that gay people are responsible for their own well-being, letting the state off the hook for more meaningful public interventions that would improve gay (and straight) life, whether urban or rural?  The answers to these questions are not obvious, but Boso’s important article provides a useful starting point for a much-needed conversation.

Colonial and Postcolonial Constructions of Family Law

May 24, 2013 Philomila Tsoukala

Western legal regimes tend to characterize family law as a field regulating private relations between adults, as well as between adults and their children and as “the opposite” of both public law and the law of market exchange. During the latter part of the twentieth century, feminists analyzed how the legal treatment of family relations as private amounted to a public endorsement of private coercion.¹ More recently, comparative law scholars have begun to study and understand the emergence of family law as a distinct field in western legal thought.² Over and over again, the emergence of family law, a surprisingly recent phenomenon, is associated with constitutive moments in the making of modern states: from federalism in the U.S. to the construction of nation-states in Europe. Sylvia Wairimu Kang’ara’s Beyond Bed and Bread: Making the African State Through Marriage Law Reform is an important new contribution to this literature, demonstrating the central role that reforming marriages played in the construction of colonial and post-colonial states in the parts of sub-Saharan Africa colonized by Britain.

The Article begins by analyzing the central role that the invalidation of customary marriages in Africa played in colonial administration. During the initial legal encounter between common law and African customary laws, judges invalidated large swaths of prior legal relations. In a (professed) effort to align colonial practices with English morality, colonial administrations superimposed a classical legal scheme of thinking about the family and the market at a moment when most of the African economy depended upon a different household model.  Instead of the separate spheres ideology that characterized family law of the classical legal tradition, African customary marriages were based on an economically active household—often composed of polygamous units engaging in economically important exchanges of property through marriage, such as the bride-price. Starting from an assumption that individual free will was the building block for any civilized legal system, colonial judges invalidated customary marriages as repugnant to English colonial morality. They looked hard, but did not seem to find any African subjects capable of becoming “individual holders of exclusive and absolute rights” in the classical legal tradition.  Critically, customary marriage’s failure to cultivate subjects that were suitable rightsholders marked the first step toward property expropriation in the name of empire building.

In this way, Kang’ara shows that, far from being an act with merely moral significance, “defining marriage was an important act of conquest and a corner stone of the market oriented state” that emerged via colonialism. To begin with, under the customary legal system, marriage and communal land tenure were inextricably linked. English common law disrupted this link by disentangling customary marriage law from property law.  Under the common law view, customary marriage was morally repugnant and therefore invalid.  Judges proclaimed communal ownership of property and other resources presumptively valid, but inefficient, and therefore inferior to the common law’s regime of individual property rights. This mass invalidation of customary marriages and communal land tenure had, of course, enormous distributional consequences. In the formal economy, it allowed employers and bureaucrats to ignore rights that the newly introduced commercial law was supposed to award the colonized, such as workers’ compensation claims for wronged workers’ spouses. In the informal economy, it allowed the emergence of newly-entitled heads of households, opportunistically invoking formal property rights to exclude traditional communal rights to resources.

But as Kang’ara shows, this sweeping invalidation of African law became unsustainable when colonial administrators realized that vast swaths of conquered territory would be ungovernable without it. This realization led to a “legal dualism,” with English colonial courts supposedly applying customary law. In marriage law, courts started accepting the possibility of “converting” customary unions into formal, Western-style marriages. The possibility of conversion had significant, unintended distributional consequences. Previously polygamous men now had to choose one formal wife, leaving pauperized polygamous wives in their wake. Jurisdictional conflicts between African courts and colonial courts ensued. Struggles between kin members asserting succession rights on the basis of customary law and newly-minted Christians asserting individual rights over property acquired during marriage intensified.

Kang’ara then tells the story of a dramatic shift in attitude towards customary law, which came about with the advent of socio-legal jurisprudence in the first half of the twentieth century. Rejecting the idea of the inferiority of customary law, Professors Eugene Cotran (1938- ) and Antony Allott (1925-2002) of the School of African and Oriental Studies in London provided what Kang’ara calls the “doctrinal staging” for modern family law in post-colonial, national states. Cotran accomplished the first step, identifying characteristics common to all African customary marriages despite huge fragmentation in marriage practices. Allott further noted that African marriages performed functions such as capital production and investment commonly attributed to English corporate or property law, thus dignifying an institution largely stigmatized in early colonialism. These moves led to the Restatement Project of African customary law (1968), whose main characteristic, according to Kang’ara, was the excavation of individualism within African customary law.  To that end, Cotran classified customary marriage rules as core or peripheral.  A marriage that violated core rules was invalid; one that violated merely peripheral rules was valid.  Consent and capacity to consent were deemed core, while dowry, animal slaughter, and cohabitation were deemed peripheral. Polygamy could be set aside in the Restatement Project not because of its moral repugnance, but because of its supposed lack of economic significance and its value simply as a cultural totem. This classification was, of course, conspicuously close to western ideas about marital validity and the non-economic nature of family relations, but it provided post-colonial courts with an opportunity to expunge customary law “without committing treason against African national pride.”

In all, Kang’ara has drawn a compelling picture of the complex set of legal interactions that led to the building of modern African family law. Far from a coherent customary law that was initially shut out of courts only to become accepted eventually, Kang’ara provides several illustrations of the idiosyncratic legal hybrids that emerged from the interactions of English common law and customary marriages. Moreover, she argues that these hybrids emerged to deal with problems common in liberal legal regimes everywhere, namely, the tensions between individualism and community against the background of a market-driven economy. In the colonial context, individualism was read onto “western” law and community onto African customs, at the same time as common law in the U.S. was reading community onto the family and individualism onto the market. For instance, the initial conversion of customary marriages into Western-type marriages left a legacy of individual property owners borrowing against previously communal property. When borrowers defaulted and their family members tried to protect themselves against foreclosure, courts appealed to the idea of the customary African trust to protect dispossessed family members. Kang’ara astutely observes that these court-created customary trusts in favor of family members were similar in effect to the gradual weakening of titled-based property distribution upon divorce in the United States, through equitable remedies and the eventual adoption of equitable distribution statutes. In the African context, the number of potential losers from a legal insistence on individual rights in marital property was broad. It involved more kin members than the divorcing homemaker in the United States, but the legal mechanism devised to deal with their plight was similar in function.

Kang’ara’s work highlights the central role that disentangling the family from the economy has played in creating market-driven regimes and provides new insights about how this process unfolded in parts of sub-Saharan Africa formerly colonized by Britain. These insights are relevant for comparative family law scholars and theorists of legal pluralism, as well as for law and development scholars. The family and its regulation have been and remain central in the political economy of liberalism. To see this centrality, one needs to go beyond claims of culture and identity and focus instead, as Kang’ara urges, on the profound transformations that liberal regimes demanded of pre-modern households.

The article manifests a somewhat ambivalent relationship to the idea of African customary law as an effect of the colonial encounter rather than a pre-existing system of legal rules. Even though Kang’ara amply demonstrates the invention of “African customary law” from the initial colonial period through the post-colonies, she occasionally seems to imply a clean distinction between a pre-existing customary law and western law.  This is a complex problem deserving further attention.  The importance of the contribution, however, remains unchanged. It provides a valuable window into colonial and post-colonial constructions of family law, highlighting surprising commonalities with parallel processes elsewhere in the western world.

Comparative Pragmatism versus Comparative Formalism in the Abortion Context

Apr 22, 2013 Caroline Bettinger-Lopez

In recent years, with the increased internationalization of the judiciary, we have witnessed growing support from advocates, policymakers, and judges for applying international and foreign law in a domestic context.  To be sure, U.S. courts have demonstrated greater reluctance toward this approach than many courts in other parts of the world.  As Margaret Marshall, Chief Justice of the Supreme Judicial Court of Massachusetts, has noted, “justices of some foreign constitutional courts traverse the world of global jurisprudence with an agility that leaves an American judge breathless.”³ But what happens when judges, intending a comparative approach, incorrectly interpret foreign jurisprudence?  And even when these judges get the law right, are they looking at the right thing when they focus on comparative law rather than comparative practice?  Rachel Rebouché considers these complex questions concerning international and comparative law as she tracks important global developments in abortion law over the past few decades.

Rebouché starts with a challenge to the conventional wisdom that U.S. abortion law symbolizes protection of women’s constitutional rights while German abortion law symbolizes protection of fetal constitutional rights.  While that dichotomy may have been true when Mary Ann Glendon first described it in 1987, Rebouché argues, the United States and Germany have, in fact, moved in opposite directions concerning abortion law and practice and the availability of abortion services.  Developments in the U.S. since Roe v. Wade have made the constitutional right to an abortion “unrealizable for many women due to restrictive state and federal laws and the absence of providers in many areas.”  By contrast, abortion law and practice developments in Germany have gone in the opposite direction, expanding access to abortion, rather than limiting it in the interest of protecting fetal rights.  Though a 1975 decision by the Federal Constitutional Court of Germany (“FCC”) supported protection for “unborn life,” more recent developments have prioritized access to abortion—a position that sounds in the register of women’s rights—above fetal rights.  A 1993 FCC decision reiterated that abortion is an unlawful act, but eliminated criminal punishment upon demonstration of proof of counseling (which is readily available in most regions of Germany at counseling centers that tend to be pro-choice) before the twelfth week of pregnancy.  Moreover, state welfare funds are available in cases of financial need, which is interpreted so generously by most regional legislatures that in some regions, the government pays for nearly every abortion. The broad availability of state-funded abortion services has led some commentators to argue that “Germany, in effect, permits abortion for any reason.”  While the U.S. and German legal developments have had enormous influence on the constitutional decisions of national courts in Colombia, South Africa, Portugal, and Mexico, these latter national court decisions, Rebouché argues, have stopped short of engaging with the “implications and evolution of abortion jurisprudence in the United States and Germany.”  More troublingly, these national court decisions have, at times, misinterpreted U.S. and German law.

Rebouché sets out to explore “how and why courts and lawyers rely on a particular formulation of comparative law as evidence of modern and universal trends in abortion law reform,” and the consequences of this comparative methodology. She contends that legislative and jurisprudential developments that expand the legal grounds for abortion do not actually correspond with better or more extensive health care services, as evidenced by the U.S. and German examples.  Moreover, she warns against an overly “formalist understanding of comparative constitutional law that makes it difficult to see the consequences and practices, both before and after law reform.”

Instead, Rebouché offers an approach she calls “comparative pragmatism” – that is, “a comparative approach that focuses less on constitutional case law and more on public health concerns.” A focus on availability and accessibility of health care services, both state-supported and private, and on the state’s power to enforce abortion laws, might serve multiple functions: to “elicit solutions that fit with diverse community needs, deter counter-movements against liberalization, … encourage flexible strategies that align with the relative power of the state at issue, [and] contradict the prevalent misconception – particularly abroad – that Roe currently provides U.S. women with abortion on demand.”

Rebouché notes the irony of national courts, especially those in the global South, framing comparative citation to courts and scholars in the global North as exemplary of claims of universal rights. Such a focus, she claims, overlooks or marginalizes extralegal or informal conduct, with important consequences for women’s health: new legislation or court decisions may result in bureaucracy, backlash, and stress on state resources.

Because “the dominant, rights-oriented approach is a model dependent on state implementation,” Rebouché cautions, “the answer to implementation problems will be more law.”  In financially-challenged states, the result may be ample law that has no possibility of practical application.  In such situations, Rebouché offers, informal regimes such as an informal sector for abortion provision could inform legal developments.

I love the premise of Rebouche’s article, and her examination of the abortion law and practice landscape in various countries is fascinating.  While the idea of examining legal realities alongside legal principles makes great sense, I would suggest that we need not overlook or reject a rights-based approach in order to embrace comparative pragmatism.  Indeed, legal standards and progressive change often evolve side-by-side, mutually informing one another. Without an established legal principle to use as a point of departure toward implementation, practical realities can easily change with the political tides. Moreover, I would be interested to see Rebouché further explore how national courts can actually engage in reliable comparative pragmatism. Are there examples of courts that have looked to comparative practice rather than comparative law? If such examples do exist, how do such courts square that inquiry with their understanding of their function as interpreters of the law? Finally, I would be curious to see Rebouché further explore the question of whether advocates’ facilitation of this pragmatic comparative inquiry could ever risk undermining a progressive agenda, and if so, what the ethical implications would be.

Rebouché’s insistence that national courts, and the advocates who submit briefs to those courts, should focus their comparative inquiries on the practical realities of abortion law and practice abroad is a fresh and welcome antidote to overly formalist approaches to comparative law.  Her article is a fascinating and provocative read, useful for family law, constitutional law, and international law scholars alike.

Same-Sex Marriage—A Liberty for All

Mar 27, 2013 Clifford Rosky

For more than twenty years, the constitutionality of laws against same-sex marriage has remained a hot topic among scholars, lawyers, and judges in the United States.  This month, the U.S. Supreme Court will finally hear argument on the constitutionality of two such laws—the federal law known as the Defense of Marriage Act and an amendment to the California Constitution known as Proposition 8.

After so many years and so many challenges, it has become increasingly difficult to find arguments and angles on this topic that are genuinely novel.  In recent years, it often feels as if the question has been exhausted—as if both sides have already said what is worth saying, and we all are just repeating ourselves, pleading and praying for Justice Kennedy’s vote.

Yet in his recent article, Professor Michael Boucai (Buffalo) manages to stake out a powerful new claim for same-sex marriage—a claim based on homosexual liberty, rather than the equality of lesbian and gay people or the fundamentality of marriage itself.  In the article’s opening sentence, Boucai explains: “This Article proposes that same-sex marriage bans channel individuals, particularly bisexuals, into heterosexual relations and relationships, impermissibly burdening the sexual liberty interest protected under Lawrence v. Texas.”

As Boucai recognizes, his argument from sexual liberty “departs dramatically” from the paradigms of advocacy and scholarship on this subject.  In one case after the next, same-sex couples have claimed that laws against same-sex marriage infringe on the couple’s fundamental right to marry and discriminate on the basis of sexual orientation and sex.  Without gainsaying the validity of these claims, Boucai illustrates that it is not only couples but individuals who are injured by laws against same-sex marriage—in particular, “individuals with open choices about whether and with whom to partner.” Among this “larger class of persons,” Boucai focuses specifically on “bisexuals,” whom he reasons are especially “vulnerable” to marriage’s system of burdens and benefits.

While Boucai’s article is packed densely with valuable observations and insights, his argument seems likely to be remembered for three contributions to the legal academy’s understanding of queer theory, same-sex marriage, and constitutional law.

First, although volumes of commentary have been published on Lawrence v. Texas, Boucai adds an eloquent reminder of what the opinion actually held. In Lawrence, the Supreme Court invalidated a Texas law against same-sex sodomy under the Due Process Clause of the Fourteenth Amendment.  Although the Court’s opinion has been closely analyzed by a long list of judges, advocates, and scholars, Boucai wryly observes that much of this analysis ignores the holding itself. Lawrence did not, Boucai insists, vindicate the equality of lesbian and gay people, but the liberty of all persons to “choose” homosexual relations and relationships.

Boucai’s reading of Lawrence offers a useful corrective to those judges, advocates, and scholars who have focused too resolutely on the opinion’s oblique references to the links between the Equal Protection Clause and the Due Process Clause, and the tendency of sodomy laws to “demean” or “stigmatize” a class of persons who the Court only occasionally refers to as “homosexual.”  Although Justice O’Connor analyzed the law in these terms—as a law targeting homosexual status under the Equal Protection Clause, rather than homosexual conduct under the Due Process Clause—Boucai astutely reminds us that her opinion was not joined by a single Justice in Lawrence itself.

In Boucai’s terms, Lawrence is ultimately about more than just the freedom to choose homosexual relations, or even homosexual relationships; above all, the decision protects “the exercise of conscience that mediates between an actor and her acts.”  Drawing on the work of Jed Rubenfeld and Carl Schneider, Boucai argues that laws against same-sex marriage have a “disciplinary” or “channelling” effect.  By holding out a dizzying array of sticks and carrots, such laws prod and lure individuals into heterosexual pairings.

Next, Boucai identifies the bisexual as the paradigm of this channeling dynamic—the most obvious example of an individual who might be seduced by marriage’s distribution of privileges and penalties. Ironically, however, Boucai demonstrates that gay-rights advocates have systematically occluded bisexuality and bisexuals from constitutional challenges to same-sex marriage bans. Especially telling is his dissection of Ted Olsen’s direct examination of Sandy Stier, one of the plaintiffs in the Prop 8 litigation, on the subject of her heterosexual past.  As Boucai explains, “Olson took pains to show that his client Sandy Stier, who previously had been married to a man, really is and always was a lesbian”—even before she knew it herself.  With meticulous care, Olsen prompts Stier to testify , “I was not in love with my husband, no” to stave off the charge that her sexual orientation is “this and then it’s that and it could be this again.”

Using this erasure as a segue back into his constitutional analysis, Boucai concludes by identifying three reasons that advocates have so carefully excluded any evidence of bisexuality from the litigation of same-sex marriage claims.  As Boucai frankly admits, the existence of bisexuality would confound three claims that are commonly made in constitutional challenges to same-sex marriage bans: (1) the claim that laws against same-sex marriage target homosexual status, (2) the claim that they negate the identity of lesbian and gay people, and (3) the claim that they target an immutable trait.

For a few moments, Boucai gamely suggests that bisexuality has a place within this constitutional framework. In the end, however, he largely rejects each of these claims as regressive and fruitless—so much unwanted baggage from the same-sex marriage quest.  In Boucai’s terms, these traditional challenges to same-sex marriage bans smack of the “politics of containment,” insofar as they entertain the premise that the state may legitimately seek to deter homosexual relations and relationships:  “All three arguments implicitly concede the deterrence of homosexuality is bad because it is useless, not because it is wrong.” It is this premise, above all, that is the target of Boucai’s argument.  In his view, “Lawrence affirms [that] containing ‘the spread of homosexuality’ is no longer a viable governmental purpose.”

In this respect, Boucai’s article stands out as a rare articulation of what queer theorist Lisa Duggan famously termed a “no promo hetero” argument—a claim that both depends on and transforms the liberal discourse of disestablishment, rather than the language of fixed minorities and fundamental rights.⁴  In Boucai’s terms, the liberty protected by Lawrence is not only universal, but “universalizing.” By emphasizing “the difference between liberating homosexuals and liberating homosexuality,” Boucai affirms that antigay policy rests upon “an immeasurable and often inchoate homosexual potential in many ostensible heterosexuals.”  In conclusion, Boucai notes that his argument “need not be limited to same-sex marriage,” and indeed, “provides a conceptual basis for rethinking a range of issues, . . . only some of which rank . . . on the gay movement’s agenda.”  If this is a hint of things to come, we have much to anticipate from Boucai’s remarkable fusion of queer theory and constitutional law.

Embracing Queer Childrearing

Feb 25, 2013 Darren Rosenblum

For the nascent lesbian and gay rights movement (before “queer” was repurposed), children and young adults were the most taboo of rights topics.  Gay rights meant sexual liberation, as popularized in films like “Cruising” and songs like the Village People’s “YMCA.”  Apart from Harvey Fierstein’s gay mama role in “Torch Song Trilogy,” queer parents were invisible.  Widespread allegations of “recruiting” young people led advocates to avoid discussions of queer influences on children.  As a gay youth activist in the mid-1980s, I remember the resistance and anxiety around gay youth issues within the national and local gay rights movement.  Even in the ensuing decades, advocates’ references to gay and lesbian parents defensively emphasized similarities to straight parenting.  Only recently have we begun to consider differences between queer and straight parents without a heterosexist lens.  Pop culture, from “Modern Family” to the “New Normal,” has recently given us a window for reconsideration, albeit one rife with bubble gum stereotypes.

Cliff Rosky avoids such traps with his latest work, Fear of the Queer Child.  There, he unpacks the long history of heterosexism in parenting and delineates its remnants.  In his previous work, Like Father, Like Son: Homosexuality, Parenthood, and the Gender of Homophobia, Rosky assessed judicial treatment of gay and lesbian parents though gender-differentiated stereotypes in custody and visitation cases.  There, his deft articulation of the interrelationship between sexual identity and gender stereotypes in the parenting context stood out as especially new.  His assertion was that gender – of the parent, the child and the judge – plays a dominant role in the elaboration of homophobic and heterosexist stereotypes about gay and lesbian parents.  The proof he deployed confirmed my long-held belief in the centrality of gender to heterosexism.  In particular, he found that “recruitment” was a charge levied against parents of sons, and explored how the male judges were more likely to adhere to stereotypes about gay and lesbian parents.  Like Father, Like Son avoided a facile identitarianism and did not get stuck in a lengthy refutation.  Fear of the Queer Child holds even more potential to affirm the positive and yes, different, nature of queer parenting.

Rosky extricates heterosexism’s genealogy with regard to children, a task necessary to dispose of this baggage.  The fear of the queer child is “the fear that exposing children to homosexuality and gender variance makes them more likely to develop homosexual desires, engage in homosexual behaviors, deviate from traditional gender norms, or identify as lesbian, gay, bisexual, or transgender.”  Rosky draws on multiple historical periods to assert the presumed “contagion” of sodomy and the concomitant fear of initiation of children into homosexuality.  Fear drove the purge of homosexuals from civil service jobs, including teaching, in the 1950s, and persisted well into the post-Stonewall era with the efforts of Anita Bryant and California’s movement to “Save Our Children” from lesbian and gay teachers in the late 1970s.  Rosky traces this history to the present where opponents of LGBT rights do not trade in such starkly homophobic stereotypes; instead, they deploy more “palatable” indoctrination claims to achieve their ends.  But it is not just opponents of LGBT rights who credit these stereotypical notions of gay parenting.  Rosky shows how the LGBT movement has adopted a defensive and even “apologetic” response to false allegations: “[b]y focusing on the empirical questions of how children become queer, LGBT advocates have sought to bracket the normative question of whether children should become queer.”  Although he pulls some of his punches, it is clear that Rosky finds that the “fear of the queer child” is not solely a heterosexual phenomenon. LGBT advocates pursue a strategy that leads them to adhere to assertions that LGBT parenting is just like straight parenting.  For example, LGBT advocates did not embrace empirical studies that suggest LGBT parenting leads to different outcomes than heterosexual parenting.  Likewise, they overlook studies that show children of LGBT parents are more likely to understand gender in nonconformist ways or even be queer – and that could support arguments that queer parenting can be better.  This resonated for me as a queer parent.  Sameness discourses may have a strategic value even if they may undermine queer parenting’s contributions, notably a more egalitarian division of labor and support for nontraditional gender roles.

There are contexts however, where the LGBT fear of the queer child takes on a more normative bent.  LGBT interventions on parenting in the current French debate over marriage equality reflect this same defensive posture. Many gay parents and parents-to-be embrace the central role of a strong female figure in a child’s life – a reflection of the deep legitimacy of the sex binary in France.

Rosky artfully interweaves gender and sexuality theory to define family law’s anti- queer parenting posture.  Rosky’s most compelling conclusion moves beyond the queer child taboo to advocate that the state should adopt a neutral posture with regard to the straight or queer positionality of parenting and of children.  His “no promo hetero” posture with regard to childrearing would bar the state from heterosexist positioning and allow families to embrace queer childhood.  Rosky’s scholarship does justice for the queer kid I was in the 1980s by calling out heterosexist presumptions (within gay rights and progressive movements) that sidelined those of us in the gay youth movement.  His work reminds us of the importance of undermining heterosexist legal regimes and the (more) pointed and active role progressive scholars should play in moving beyond the fear of the queer child.