Yearly Archives: 2014
Dec 8, 2014 Melissa Murray
In 2008, America elected its first black president. In the same election, a slim majority of Californians voted to enact Proposition 8, a ballot initiative that amended the California constitution to prohibit legal recognition of same-sex marriages. Almost immediately, the election of the nation’s first black president and the enactment of Proposition 8 were linked in the media coverage of these two events and in the popular imagination. Black voters, it was argued, turned out in droves to support Barack Obama; and these same voters cast votes to deny gay men and lesbians the right to marry. According to the conventional wisdom, a group that historically struggled against prejudice and oppression had furthered the oppression of another minority group.
In his recent article, Marriage Equality Post-Racialism, Russell Robinson takes on this stock narrative of the 2008 election, and in so doing, launches a broader discussion of the racial discourse and politics of the marriage equality movement. As other scholars have done, Robinson relies on empirical evidence to dispute the claim that black voters were solely responsible for Proposition 8’s enactment. Critically, however, Robinson goes beyond merely setting the empirical record straight to offer astute observations about the intersection of race and sexuality, and the role of race in the effort to secure marriage equality for LGBT persons.
In particular, Robinson surfaces a shift in the discourse surrounding the marriage equality movement. After the enactment of Proposition 8, gay rights activists and pundits argued that black support for Proposition 8 constituted a betrayal of the gay community—a community that, like the black community, was engaged in a struggle for core civil rights. According to Robinson, this “black betrayal hypothesis” relies on analogies between the black civil rights movement and the LGBT rights movement. Indeed, it rests on the view that the black people and LGBT people have a common legacy of shared struggle against similar forces of discrimination and oppression. And as Robinson documents in painstaking detail, part of the strategy to secure marriage equality has emphasized these shared connections between the struggle for racial equality and the gay rights struggle in order secure the right to marry for same-sex couples.
To be clear, Robinson does not dispute that homophobia and racism share common elements. However, his fundamental argument is that such analogies, and the discursive shifts they undergird, are ultimately unproductive. Arguing that “gay is the new black,” Robinson maintains, elides important distinctions in the histories of each group and their respective struggles for civil rights. Further, the comparison suggests that the struggle for black civil rights has been successfully concluded and that the marriage equality is the last civil rights frontier to be conquered. And most troublingly to Robinson’s mind, the effort to analogize the LGBT rights struggle to the black civil rights struggle overlooks those individuals who belong to both groups.
In documenting the dangers of analogy (and the discursive moves it underwrites), Robinson offers three key insights. First, he disputes the claim that African Americans “pos[e] a unique threat to marriage equality” because of rampant homophobia in the black community. According to Robinson, one of the most troubling aspects of the gay-black analogy and the “black betrayal hypothesis” is that they mark African Americans as hyper-homophobic (and indeed, pathological in their homophobia), while discounting the degree to which other demographic groups, such as the religious or the elderly, may also hold homophobic views. Moreover, the emphasis on homophobia among blacks occludes the fact that “there remains a significant amount of old-fashioned racism in the gay community.” In making this observation, Robinson goes beyond the descriptive to make a normative claim—“holding minorities to a higher standard in terms of supporting other minority groups effectively makes prejudiced majority group members less blameworthy.” Such charges, he posits, divert much-needed attention from “the shared social obligation to promote equality.”
Robinson’s second insight concerns the use of race in marriage equality litigation. Relying on the briefs and other papers filed in various legal challenges to opposite-sex-only marriage regimes, Robinson documents the way in which race figures prominently in marriage equality advocacy. For example, in an effort to secure suspect class status (and the more rigorous judicial scrutiny that such status requires) marriage equality advocates frequently argue that gay men and lesbians are less politically powerful than African Americans. Such claims, Robinson contends, result in an unfortunate “oppression Olympics,” pitting blacks against LGBT persons and overlooking the degree to which both groups remain marginalized in the political process. This “oppression Olympics” relies on a postracial narrative that posits blacks as “doing ‘quite well,’ while [lesbians and gays struggle] to achieve parity.” This narrative, in Robinson’s view, is inattentive—indeed, indifferent—to “contemporary black struggles with mass incarceration, homelessness, unemployment, and health disparities, such as HIV/AIDS.” Instead, as the claims are framed in marriage equality briefs, the “central measure of progress is the right to marriage. Because “blacks can marry, and gay people cannot,” blacks have progressed further and enjoyed more political capital than their gay and lesbian counterparts. In this sense, marital, rather than material realities frame the understanding of equality.
The intense focus on marriage equality as the lynchpin of the LGBT rights struggle informs Robinson’s third claim: that the effort to secure marriage equality (and the analogies and discourse that support the effort) reflects a bid for formal equality for gay men and women. According to Robinson, marriage equality advocates “tend to endorse” a notion of equality that “simply requires law on its face to treat people without regard to sexual orientation.” While this kind of equality is attractive in principle, Robinson argues that it is deeply impoverished, and would do little to benefit the most marginalized in the LGBT community, including those LGBT persons who also identify as racial minorities. To this end, Robinson contends that the marriage equality movement’s embrace of formal equality is myopic and “short-sighted.” As he notes, “[m]arginalized members of the LGBT community, including people of color and those who are socioeconomically disadvantaged, are least likely to find a marriage license sufficient” to combat the enduring effects of homophobia and racism that they encounter in their daily lives. Instead of focusing exclusively on expanding the right to marry, the LGBT rights movement should be more attentive to other structural remedies that would address these issues.
There is much to recommend this article. Robinson is among the best of a cohort of legal scholars that take an intersectional approach to contemporary legal problems. In this regard, Marriage Equality Postracialism is a much-needed intervention that focuses on this critical issue from multiple perspectives.
In drawing attention to the tensions between race and sexual orientation that have come to the fore in the marriage equality effort, Robinson is sure to draw objections, if not outrage. Indeed, his depiction of the prevailing marriage equality discourse and its likely consequences is at once sobering and discomfiting. Nevertheless, Robinson surfaces important issues about the intersection of race, class, and sexual orientation, and initiates a long-overdue conversation regarding how social movements rely on and build upon the work of other movements in pressing for their own claims.
As importantly, Robinson complicates the prevailing discourse of marriage as the end-all-be-all of rights claims. Certainly, marriage equality will address inequities that plague the lives of some LGBT people, but, as Robinson observes, it will not solve the broader range of institutional and systemic inequalities that persist in the lives of those gays and lesbians who experience multiple forms of discrimination and marginalization.
In short, Robinson has crafted a disquieting vision of a contemporary social movement that is swiftly approaching the successful conclusion of its mission to secure marriage equality. As it reaches that conclusion, Robinson’s article provides a much-needed opportunity to take stock of this success, and to ask, whether, in all cases, the ends justify the means.
Nov 6, 2014 Caroline Bettinger-Lopez
Some of the summer’s biggest news headlines focused on the surge of children from Guatemala, El Salvador, and Honduras who, fleeing widespread violence and extreme poverty, have crossed the U.S.-Mexico border to seek refuge in the United States. The border crisis has sparked a highly politicized debate, with compromise solutions shifting steadily to the right. The most recent bipartisan proposal would, in many cases, require detention of minors (in violation of the 1997 Flores v. Reno settlement requiring the release of migrant children, when possible, to relatives or foster care) and result in rapid deportations without due process.
Within this contemporary context, Shani King’s Alone and Unrepresented: A Call to Congress to Provide Counsel for Unaccompanied Minors, provides a fresh perspective on the issue. King argues that three constellations of international and regional human rights standards—children’s rights, immigrants’ rights, and the right to civil counsel—should be interpreted together to provide the right to free legal counsel for unaccompanied minors in immigration proceedings. King offers an extremely helpful collection of international and regional standards on these rights, as well as comparative examples from countries that provide representation to unaccompanied minors facing immigration proceedings. Congress, he concludes, should likewise enact legislation guaranteeing legal representation to unaccompanied minors. King’s article is thought-provoking and practically useful, and it can serve as a source of persuasive international authority to support recent proposals and lawsuits calling for constitutional due process rights of unaccompanied minors.
King begins with a helpful review of the standard law and policy arguments in favor of appointing free legal counsel to unaccompanied minors: the vulnerability of unaccompanied minors as they navigate an unfamiliar and arduous legal process; the complexity of immigration law; and the significantly increased likelihood for immigrants, especially minors, with lawyers to win their cases over those who represent themselves. Few academics, however, have argued that unaccompanied minors have the right to free legal counsel, and constitutional challenges along these lines have failed. (N.B.: the ACLU recently filed a new lawsuit challenging the federal government’s failure to provide minors with legal representation in deportation hearings). The closest the federal government has come to fulfilling this right, King offers, is a contract with the Vera Institute of Justice to manage the Unaccompanied Children Program, which provides legal assistance to unaccompanied minors and has increased the percentage of children who receive free legal assistance in immigration proceedings from ten percent in 2003 to fifty percent in 2011.
Although King does not advert to the principal human rights instruments that are binding upon the United States (the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), the International Covenant on Civil and Political Rights (ICCPR), the Convention Against Torture (CAT), and the American Declaration on the Rights and Duties of Man), he does undertake a thoughtful exploration of various international and regional standards that support free legal representation to children in other international law contexts. King thoughtfully combs through human rights treaties, case law, and “soft law” from the United Nations treaty monitoring bodies, and the European, Inter-American, and African human rights systems. He describes how international bodies have explicitly applied both the international “best interests of the child” standard (which, interestingly, was modeled after the U.S. “best interests” standard) and the right to family unity in the context of unaccompanied minors, and makes a compelling argument for why proceedings for unaccompanied minors “may well present the most compelling scenario for free civil counsel.” (366).
The Article makes an especially valuable contribution when it surveys the laws of various countries that provide free representation to unaccompanied minors. Some countries, such as Finland, Norway, Sweden, Switzerland, and the Netherlands, appoint attorneys and personal representatives/guardians for unaccompanied minors. Other countries, including Austria, the Netherlands, Finland, Canada, the United Kingdom, France, Denmark, Australia, and New Zealand, provide children the right to free representation—legal, personal, or both—only after preliminary processing takes place, and some of these countries provide this right only to children seeking asylum. In contrast, the United States and Uganda provide children the right to counsel only at the minor’s expense. King maps these foreign laws and practices onto international human rights standards and analyzes their shortcomings, such as exceptions to the right to free representation, the appointment of non-lawyer legal representatives, and delays resulting in crucial interviews occurring without representation.
King concludes by recommending a model for Congress that guarantees “the appointment of an attorney, who gives the child a voice, before any interviews by border patrol agents or immigration officials, [and] who is specially trained in immigration law and in representing children. For those children who cannot express their own interests, the government should also appoint a personal representative, or guardian, who can guide the attorneys.” (376). The guardian must be the exception rather than the rule, he wisely insists, because the lawyer’s role is to represent the client’s best interests, and two many cooks could unnecessarily complicate matters.
Alone and Unrepresented is brimming with international standards and comparative examples that make a compelling case for the right to free counsel for unaccompanied minors in the U.S. Indeed, advocates are now making that case in the international arena. Last month, a coalition of human rights and immigrants’ rights advocates appeared at a hearing before the Inter-American Commission on Human Rights on the “Human Rights Situation of Migrant and Refugee Children and Families in the United States” and argued that the United States is committing human rights violations by, inter alia, failing to provide migrant children with legal representation. The hearing came on the heels of a site visit by the Commission to the southern U.S. border to evaluate U.S. compliance with international human rights obligations. The Commission’s preliminary findings identified several troubling human rights violations. King’s thoughtful analysis is reflected in these developments in the international arena, and marks an important example of human rights praxis.
Oct 7, 2014 Shani King
In asking What Makes the Family Special? Kerry Abrams posits an alternative approach to family-based immigration policy, eschewing “the old family/market dichotomy that family law scholars have been deconstructing for decades.” Family-based and employment-based immigration are, of course, the two largest classes of admission to the United States and each one seeks to elicit different, and, at times, conflicting policy goals. Abrams sees a clear dividing line between the two approaches. On one side stand proponents of expansive, family-based immigration who, in Abrams’ view, tend to rely on “soft,” rights-based arguments about human dignity and autonomy. On the other side stand those who view immigration, above all else, as a tool for optimizing labor markets. They tend to rely on “hard” economic arguments to make that case.
Abrams proposes a third way that considers how family-based immigration might benefit American society as a whole. This approach combines features from both sides of the family/market divide, embracing family-based immigration (though not necessarily a functional definition of family) while also relying on somewhat “harder” policy considerations than the ones that typically underpin pure rights-based approaches. Even so, Abrams acknowledges the role of human rights considerations in setting immigration policy: “no nation could make decisions about these issues without considering human rights as part of the calculus.” Although her article is a wide-ranging “thought experiment,” full of big ideas, Abrams is careful to limit herself to identifying potential policy rationales favoring family-based immigration rather than passing judgment on their ultimate plausibility or propriety.
As a first step, Abrams explains that family connections are the dominant means—to an overwhelming degree—by which immigrants enter the United States. She calculates that about eighty percent of green card recipients in 2011 were family members of U.S. citizens or legal permanent residents. This group includes not only those individuals who belong to explicitly family-based classes of admission, but also relatives of employment-based immigrants, diversity-lottery winners, refugees, and asylum-seekers. Abrams’ statistical analysis makes clear that “family-ness” is so central to U.S. immigration policy that it is worth examining the concept directly, rather than only through the lenses of human rights and market forces.
As a second step, Abrams very helpfully situates her project within the context of Congress’ approach (or maybe more accurately lack thereof) to family-based immigration throughout the nineteenth and twentieth centuries. Her historical survey is complicated by somewhat incoherent statutory development and a sparse legislative history that reveals little about how Congress eventually shifted from a quota regime to the preference-based system that we know today. As Abrams notes, early American notions of family-based immigration were rooted in the tacit gender-role assumptions that also underpin coverture, with a husband’s citizenship status and domicile determining his wife’s. Driving home this point, she references the Expatriation Act of 1907, under which a woman actually forfeited her U.S. citizenship by marrying an “alien,” on the ground that she took on his domicile and nationality upon marriage.
Against this backdrop, Abrams examines the role and evolution of early family-based immigration rules in the context of the national-origins quota system that developed during the 1920s. She traces how, at first, preference categories reflected the long-standing assumptions about determinative powers wielded by male heads of households, but then gradually coalesced into a structure that privileged an immigrant’s nuclear family (the members of which were not subject to the quota). Although preference categories were expanded during the early 1950s to encompass certain extended family relationships, these more distant relations were still subject to quota restrictions, limiting the impact of these facially pro-family-immigration reforms. National quotas so dominated early immigration policy that Abrams surmises (in the absence of a clear legislative record) that family preference categories were an afterthought rather than a calculated effort at policymaking.
The repeal of the quota regime in 1964 was a watershed moment in the history of family-based immigration, and the Hart-Cellar Act serves as the foundation for our current immigration system. Abrams explores how ostensibly pro-family immigration policies in this context might have been motivated by unrelated, ulterior motives. She explores how the Hart Cellar Act’s new family preference categories may have served as a subtle means of preserving the quota regime rather than encouraging family-based immigration. That is, many in Congress may have presumed that those nationalities that had contributed most to the inflow of immigrants under the old quota regime would disproportionately serve as sponsors of relatives under the new preference system, helping to maintain the status quo. However, if such social engineering were the goal, Congress’s approach backfired. As Abrams puts it: “Recent immigrants from, say, China had a great incentive to sponsor their family members. A sixth-generation American whose ancestors came from England had no family in England left to sponsor.” Abrams’ historical analysis suggests that pro-family immigration policy rationales likely played a very limited role in the development of U.S. immigration law—notwithstanding the fact that family-based immigration now dominates. Even when Congress has engaged explicitly in family-definition it has done so mostly to perpetuate traditionalist views of family life (traditional gender roles, privileging the nuclear family) or to disguise unsavory efforts at social engineering (national quotas).
In the rest of the article, Abrams steps into this vast legislative void and describes three broad categories of policy rationales that might justify family-based immigration: integration, labor and social engineering. In a more progressive take on the pro-family ideas underlying coverture, Abrams proposes that family-based immigration might hasten and strengthen integration into American society by enhancing stability and aligning individual self-interest with the interests of the nation as a whole. Such integration might then, she suggests, encourage interaction with and contribution to the broader society. However, Abrams is careful to acknowledge that the family’s role in an individual’s integration might depend heavily on the circumstances. Family life could offer a comfort level that makes integration with the larger community a more natural process, but too much comfort could easily lead to insularity.
Employment-based immigration has a family component (whenever close family members accompany those with employer sponsorship). But Abrams points out that the opposite is also true: Family-based immigration typically has a labor component. Even those who have not been granted entry to the United States on the basis of skills that are particularly desirable to major domestic employers are still likely to participate in the labor force in some way once here. In the labor context, Abrams suggests that family ties might, in the end, lead to greater on-the-job stability and success for newcomers: “Although employment-based immigration (including unauthorized migration for a particular job) often results from immigration networks, family-sponsored immigration provides a surer base for the new immigrant to operate from than a friendship or employment network.” For instance, a U.S. resident or citizen wishing to sponsor a close relative might have more intimate knowledge than an employer regarding her suitability for immigration, and the affidavit of support requirement creates a significant incentive for careful decision-making and active participation in the process of social integration.
Once here, non-employment-based immigrants, Abrams suggests, might also fill a need for less skilled labor (child care, housework, manual labor, etc.), either on behalf of a sponsor or in the context of a private, informal employment arrangements for which employer sponsorship is less likely to be available. Abrams also points to the disproportionate use of family-based immigration by women who might be more likely to participate in some sectors of the informal economy. Family-based immigration may therefore serve as a “proxy” for unskilled laborers needed to satisfy demand that is not being met through labor-based immigration.
Perhaps the most interesting—but, potentially, the most troubling—pro-family policy rationale that Abrams proposes involves legislative social engineering. She proceeds from the oft-asserted claim that state law dominates the regulation of key family institutions—marriage and divorce, procreation, child care and custody—and that immigration policy may afford Congress a means of acting “obliquely” to further pro-federal policy in these areas. Along those lines, diminished federal judicial scrutiny in the immigration context may lead Congress to view this as particularly fertile ground for unfettered policymaking. For example, Congress might seek to “subtly encourage some kinds of families over others….” Family-based immigration policies—depending on how “family” is defined—could express a preference for married couples based on an assumption that these relationships might tend to be more stable or are likely to help the nation compensate for a declining domestic birthrate. Again in this context, Abrams views family-based immigration as a possible proxy by which women can be targeted to compensate for male-dominated labor-based immigration: “Given that women disproportionately use family categories to immigrate, and for all the reasons discussed above that family-sponsored immigration may provide a more flexible labor force, we might want to maximize this kind of immigration so that there will be a large, young, female population of potential care workers for the elderly.”
Although her proposed framework is a comprehensive one, Abrams is not suggesting that it supplant the traditional rights/labor dichotomy. She acknowledges, for instance, that the moral heft of rights-based rationales might, in the end, force lawmakers to follow a particular course, notwithstanding competing pro-family or pro-labor interests. She also concedes that the three broad policy aims she describes—integration, labor and social engineering—might themselves conflict with each other in any given context. But all policy frameworks have their unique limitations. Abrams’ article has the potential to play an important role in exposing certain policy motivations that might not be made explicit in the legislative history or in family-based immigration scholarship.
In the end, where Abrams’ family-based framework leads depends on the assumptions one makes about the nature of family-ness. In the hands of a proponent of maximizing employment-based immigration or someone holding a very traditionalist notion of family, the framework could be used to justify an approach to family-definition that would no doubt outrage a proponent of a rights-based, functional approach to family. Conversely, starting from a functional approach to family, the framework would point the way to a completely open immigration policy without quotas or preferences of any kind—an outcome that might horrify many in favor of pure, employment-based immigration.
At the same time, those on each side of the family/labor divide can employ the framework in a manner that critiques the other side’s approach, exposing possible shortcomings or, at least, casting them in a clearer light. This may be the context in which this new and different way of looking at family-based immigration may yield the greatest benefits.
Sep 5, 2014 Janet Halley
As Andrew Gilden reports in this revealing article, bullying and especially cyberbullying reforms are becoming institutionalized. Prosecutors respond to media coverage of teens bullied into suicide with creative prosecutions. State and federal law require secondary and primary schools to single out bullying for swift and severe punishment and have set up special bureaucratic processes to surveille bullying, report it up the chain of command, and publicly rank schools by the numbers they generate in the process. Schools are also required to teach kids the evils of bullying. Because internet use is often blamed as a medium for “cyberbullying,” a big segment of the antibullying campaign is focused on controlling teens’ access to sexual content on line. This includes Congressional efforts to immunize ISPs for restricting access to obscene material on-line and to enhance parents’ ability to filter their children’s access to that material. Cyberbullying overlaps in many policy efforts with sexual predator scares to promote the closure and blockage of sexually-oriented chat rooms and other fora in which teens could get in over their heads.
Preventing and punishing bullying has become an important LGBT priority. From the media storm over the suicide of Tyler Clementi to President Obama and Kim Kardashian reaching out to gay kids on Dan Savage’s “It Gets Better” website, pro-gay advocacy has played a key role in generating social and political support for anti-bullying reforms. The logic of their efforts seem obvious: gays are victims of bullying precisely for their sexuality, so controlling this phenomenon will be good for them.
Gilden bravely calls our attention to the downsides of these reforms. He writes as an advocate of “gay teens” and argues that social-control efforts targeting teenage bullying have costs, not just benefits, for LGBT youth. His basic argument is that securing and enforcing these reforms depend on an “innocence narrative” in which bullying victims are social and especially sexual innocents whose salvation lies in the hands of adult protectors – and that this narrative leaves out too much. It omits the active sexuality of LGBT youth and their need to find ways to express it as they mature; it leaves out the healthy and life-affirming nonvirtual and internet venues where they join in what Gilden calls “sexual communities” – groups formed specifically to explore sexual identity and make nonnormative lives livable – and it leaves out the possibility that some “bullies” are less destructive than the victim/savior pattern requires and may even be LGBT youth themselves. To give you a taste, here is Gilden’s take on Savage’s almost universally acclaimed “It Gets Better” message: gay teens should “sit on their hands and wait for adolescence to run its course[.]” What if, as well or instead, we tried to “appreciate their desires and capacities to make things better now”? (394).
Gilden’s introit to his topic is the Tyler Clementi case. Clementi was a brand-new freshman at Rutgers University when his roommate Dahrun Ravi set up a webcam in their shared room and broadcast video of Clementi having sex with another young man. Clementi committed suicide within days of these episodes. The standard understanding of this story, Gilden argues, exemplifies the innocence narrative. He collects media and blog posts to show how, almost instantly, Clementi was portrayed as an inoffensive and closeted sexual neophyte thrown against his will into a maelstrom of public shame about his sexuality by a relentless and inhuman attacker. LGBT advocates promptly attributed his suicide to bullying, which they linked to the disproportionately high rate of suicide among LGBT youth. The legal response was highly punitive. Ravi was convicted of invasion of privacy and other crimes (although not, as some gay advocates urged, murder), in a trial which Gilden analyzes closely to show us, yet again, the centrality of the innocence narrative to the crime-and-punishment understanding of anti-gay bullying. And he shows how the Clementi case prompted the New Jersey legislature to require schools to treat student/student bullying as a serious offense.
From careful culling of trial testimony and press accounts, Gilden shows how this version omitted some elements that disrupt the innocence narrative. Clementi was not closeted; he was out to his family and many others. Nor was he a sexual neophyte. His sexual partner in the video was a 30-year-old man he found on a gay male hookup site and had sex with in three encounters over one week. It was also not clear that Clementi experienced himself as a sexual innocent destroyed by an on-line outing, or that he thought that the internet is a site of sheer danger for gay teens like himself. Before the notorious Ravi webcam episode, Clementi had posted sexually explicit videos of himself on an adult website, and after learning about Ravi’s videos Clementi discussed them ruefully and sometimes even humorously on line among a web community of young gay men to which he was a regular contributor. Moreover, Clementi he had been diagnosed with depression and had made harddrive files with anguished filenames well before the webcam episode, suggesting a more complex psychological history than the innocence narrative can accommodate. Gilden portrays Clementi as a young man struggling to come to terms with sexuality and life.
To be sure, Gilden downplays some of the signals that Clementi thought he had been victimized and sought both relief and redress. He did ask his RA to arrange a room-assignment change and to ensure Ravi’s punishment. Clementi’s family has a suicide note that never had to be disclosed because the prosecution’s case did not turn on the cause of his death, so we may never know what it would tell us. But Gilden does not claim that bullying doesn’t happen, that predators don’t scan the cyberhorizon for young victims, or that Ravi’s videotapes were not, as Clementi described them to his RA, “wildly inappropriate.” Instead, he argues that the innocence narrative was projected onto Clementi, producing distortions that have policy implications.
First, the internet was not all bad for Clementi: he used it to explore his sexuality and to find a sexual community where he could seek moral support and ponder what to do about Ravi’s broadcasts. Second, Clementi was a sexual agent, not purely a passive victim, and that agency meant that he was engaged with both the pleasure and the danger of active sexual life. And third, Clementi’s careful management of his outness and his privacy was an elaborate process of “boundary management”: it was not closetedness and virginal timidity but this exploration that Ravi’s violated with his broadcasts. On each of these points, Gilden brings ethnographic and other sources to help show that Clementi was by no means unique in any of these ways — that many gay teens are a lot like him.
Would our new anti-bullying establishment look different if gay teens’ sexual agency had mattered, along with their victimization, in its construction? Though he does not try to answer that question, Gilden deserves credit for putting it squarely on the table.
Jul 25, 2014 Carlos Ball
Relationship recognition has been at the center of reform efforts in family law for the last two decades. Scholars and advocates alike have focused intently on the need to provide recognition and support for a variety of relationships that the law has traditionally ignored. These include the relationships of not only same-sex couples, but also of cohabiting couples, nonmonogamous groupings, and friends. The reform proposals have assumed that legal recognition brings with it economic benefits.
In a fascinating new article, Erez Aloni questions this assumption by highlighting the interplay between two considerations: first, it is sometimes the case that nonrecognition of relationships can have financial benefits for their members; second, the state sometimes recognizes relationships in the absence of a request by either party—what Aloni labels “purely ascriptive recognition”—for the limited purpose of determining eligibility for particular benefits. In most cases of purely ascriptive recognition, if the combined income exceeds a certain amount, then the individuals become ineligible for the benefit in question. When the two considerations are brought together, we are left with forms of legal recognition that cause financial harm.
Aloni begins by exploring different examples of purely ascriptive recognition, including the termination of alimony upon the recipient’s cohabitation and the federal government’s determination of family income for purposes of who is eligible to benefit from means-tested programs such as Supplemental Security Income, Medicaid, and financial aid for higher education. In all of these cases, the state’s recognition of relationships causes financial harm. It has been all too easy, Aloni rightly points out, to miss the link between recognition and harm given that family law reform proposals have been so consistently based on the need to expand the types of relationships that the state legally recognizes.
Aloni makes several important observations about the link between recognition and financial harm. First, it is unfair when the government recognizes relationships in ways that deprive their members of economic benefits while refusing to recognize the same relationships in other contexts in which recognition would confer benefits. This recognition asymmetry is unjust. It is one thing to contend that certain kinds of relationships do not merit recognition; it is another matter altogether for the government to recognize relationships only for the purpose of saving itself or third parties money.
Second, policies grounded in involuntary recognition often have a disparate impact on vulnerable populations like the poor, the elderly, and the disabled. The reasons for the disparate impact are two-fold. These groups are less likely to be married, and thus to enjoy the large number of state-provided benefits that accompany that status. At the same time, these groups are more likely to be in need of the assistance provided by means-tested programs.
Third, involuntary recognition regimes that deprive individuals of benefits are particularly salient to individuals, such as those who cohabit after divorce and who depend on welfare programs, whom society has traditionally viewed as morally suspect. Lastly, there is a largely unrecognized tension between the cultural benefits that accompany recognition and the distributive injustice that can result from that recognition. There are important trade-offs to consider between, on the one hand, the cultural benefits to cohabiting partners, for example, who might automatically qualify, under some proposals, for having their relationships legally recognized after living together for a certain period of time and the financial harms that might accompany that recognition.
At the end of the day, Aloni grapples with a problem that family law scholars have not been sufficiently cognizant of: the problem of over-recognition. The field has been so focused on the harms caused by the lack of recognition, that many scholars have assumed that recognition is an unmitigated good. Aloni in this article compellingly invites us to think otherwise.
