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Michael Boucai, Sexual Liberty and Same-Sex Marriage: An Argument from Bisexuality, 49 San Diego L. Rev. 415 (2012), available at The Williams Institute.

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.1  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.

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  1. Cf. Alice Ristroph and Melissa Murray, Disestablishing the Family, 119 Yale L. J. 1236 (2009); David B. Cruz, Disestablishing Sex and Gender, 90 Cal. L. Rev. 997 (2002).
Cite as: Clifford Rosky, Same-Sex Marriage—A Liberty for All, JOTWELL (March 27, 2013) (reviewing Michael Boucai, Sexual Liberty and Same-Sex Marriage: An Argument from Bisexuality, 49 San Diego L. Rev. 415 (2012), available at The Williams Institute),