Yearly Archives: 2015
Jun 16, 2015 Angela Mae Kupenda
Daria Roithmayr’s book, Reproducing Racism: How Everyday Choices Lock in White Advantage, situates the reproduction of racism outside of intentionally inflicted racist acts. She argues that even if racism by individual design ceases, everyday decisions by Whites lock in the many decades’, and even centuries’, of entrenched structures of White advantage. Tracing the history of race in America especially from Jim Crow, Roithmayr illustrates how White advantage was locked in through wealth accumulation protections given Whites and denied Blacks, through the real estate market practices favoring Whites, in educational policies perpetuated through a de jure then a de facto system, through the use of incarceration and its rise against Blacks soon after the end of slavery, and even in the levels of Black infant mortality.
Using antitrust theories, Rotihmayr’s work explaining the cartel like structure of White advantage can be juxtaposed against Lani Guinier’s analogously familiar book from over twenty years ago. In Guinier’s book, The Tyranny of the Majority: Fundamental Fairness in Representative Democracy (1994), Guinier discusses the many statutory protections given to those who hold less than the majority votes in corporations. Guinier argues that just as minority ownership interests are given “a turn” in corporate law, such could also protect minority racial interests in our governmental democracy. Similar to Guinier’s use of principles from corporate law, Roithmayr uses principles from antitrust law. Guinier’s book focuses more on arguing the corporate law principles as remedies. Roithmayr’s book focuses more on identifying the antitrust cartel structure and showing the way for our own creative construction of remedies to break these cartels to stymie the reproduction of racism.
Both books have had a huge impact on me. I remember taking corporations in law school in the late 1980s and wondering why the corporate principles– to protect shareholders who are not in the majority–were not embraced in America’s political systems to protect voters who are not in the majority. Thus, when I discovered Guinier’s articles, I hungrily considered her ideas. Sadly, misinformed objections to her arguments led to former President Clinton withdrawing Guinier’s well suited nomination for Assistant Attorney General for Civil Rights in 1993.
Roithmayr’s work, and her explanation of White advantage using cartel structures, eloquently proposes a straightforward analogy. Her book serves as an informative pedagogical tool. Further, Reproducing Racism is provocative as to what it does not do. While her work ends without extensively proposing many remedies to breaking these cartels, her work provokes the development of these remedies.
Using Reproducing Racism as a pedagogical tool
I teach Constitutional Law at a predominantly White school in the Deep South. One component in my class is small group presentations of recent United States Supreme Court cases. The students are allowed to self select their groups. Often a group predominantly of color will select one of the affirmative action/diversity cases to research and present.
Almost always following one of these presentations, a White male student will ask something like, “Well if Black people just do better we will not need affirmative action in admissions as they will be more competitive, then don’t you think America’s problems will be resolved?” When a young, self avowed conservative, White male posed this question to a group mainly consisting of Black females toward the end of the class period a few years ago, the young women presenting were visibly shocked by the question. Their answer did not satisfy him. So, the young man approached me after class and posed the same question. A number of students gathered around to hear my response.
In answering him, first I engaged him with a discussion about admission committees and their predominant racial construction. We then discussed whether committee members would have a certain amount of personal discretion in making decisions. He agreed with this point saying, although there should be criteria, some personal discretion was critical. So, my final question to him was, “Even if the Black applicants are at least equally qualified to the White candidates, if a White committee member with implicit bias believes that Whites are more deserving makes an everyday choice to prefer the White applicant, then will the committee and hence the school reproduce the same system of White preference?”At that point, a look of recognition came across the young White man’s face. He responded, “I get it. Yes, non-White candidates need more opportunities to advance in education and to improve on certain types of standardized testing, but Whites who evaluate them also need to advance in rejecting racism and in being aware of and rejecting their ordinary decisions that promote White advantage.”
These very points from our extended after-class conversation are covered in Reproducing Racism. Roithmayr discusses how Whites over the years created institutional rules that disproportionately favor Whites over non-Whites. So, in my next semester after a similar group presentation by a majority non-White group of students and a similar question by a young White male student, I referred him to Roithmayr’s book for reading and for future discussion.
Her pedagogical contribution is experienced even outside the classroom. Non-Whites I encountered, who saw me reading Reproducing Racism, wanted to know more about this reproduction of racism. When I explained Roithmayr’s theory to them, they were relieved to know that someone has written in a scholarly and also accessible way about what they know and what they experience on an everyday basis as non-Whites in America. Her book thus serves as an excellent supportive tool both inside and outside the classroom.
Using Reproducing Racism in search for exceptional remedies to racism
I attended a law conference panel discussing Reproducing Racism, soon after it was published. On this panel, Professor Roithmayr discussed her book and distinguished panelists offered a critique of her work, especially her last section on potential remedies.
Roithmayr connects the continued reproduction to antitrust theories where companies prosper based on bad behavior. Though certain behaviors were considered illegal later, companies created a “positive feedback loop” which allowed them to continue to prosper from the economic advantage gained from their previous bad behavior. Similarly, White privilege is locked in and Whites continue to be advantaged generation after generation. Such loops cause the reproduction of racism, even if intentional racism is diminished. The bad, intentional behavior of the past locks in benefits for Whites. Though that past behavior is now frowned upon, the benefits of that behavior is still enjoyed by Whites on a daily basis.
At the end of the panel discussion, the question became how can these cartels of White advantage be broken to allow for more equitable systems? Roithmayr’s book is well written and thoughtful, but does not conclude with many detailed suggestions on workable ways to break these cartels to unlock cartel-like reproduction of American racism generation after generation. She does propose some ideas including, modifying social norms, taxing the benefits that Whites gain from the feedback loops, limiting the opportunities for White flight so that non-Whites may be integrated into the cartel loops, and others.
My question to Roithmayr and the panel was further about remedies. I wondered whether cartel breakers can indeed be found. Specifically, I wondered if poor Whites could be recruited into a movement to break racial cartels. My argument was that economically, for example in my home state of Mississippi, poor Whites are little better off than Blacks. Still, in fact, many poor Whites seem to vote against their own economic interests as they overwhelmingly vote to elect candidates who are opposed to education for all, opposed to healthcare for all, and opposed to equal rights for women.
One of the panelists who was reviewing Roithmayr’s book disagreed with my analysis. He argued that poor Whites have Whiteness and Whiteness has value. So poor Whites perceive this as a great value that outweighs any loss in the public well funded education of their children, or in health care, or in other areas they share in common with many southern non-Whites. Only to some degree did this panelist persuade me.
I still believe poor Whites should be willing to break the cartel for their own benefit. Whites in poverty, like non-Whites, need health benefits, need free and well funded public education, could benefit from the political leadership of empowered non-Whites who believe in equality for all.
A movie illustrates what may be my unrealistically idealistic view. In the film In Time (Twentieth Century Fox 2011), dollar bills are not the currency; time is. Initially, I was frustrated with the story line as it promotes the idea that Will, a White man (played by Justin Timberlake), has to break the system to save the poor and racial minorities. I thought of other films where the savior of racial minorities always seems to be a White superstar. In Time, though, gave me greater pause, as Will is himself poor and disenfranchised. By helping to save others, he redeems the memory of his poor White mother. The plot of the film comes from the status of these humans. When a human being turns 25, the person stops aging biologically. Each human automatically receives a digital clock imprinted on their arms indicating the amount of time they have left to live before suddenly dying. Those born into wealth and privilege are gifted with clocks with time of fifty years or more. Those born poor and disenfranchised receive time clocks with maybe 24 hours of time on their biological clock.
The movie’s hero, Will, unintentionally ends up working with a rich young White woman, Sylvia (played by Amanda Seyfried), to rob the banks of time, to bring down a corrupt system stacked against minorities and poor Whites. His bringing down the corrupt system is as much for him and the memory of his poor White mother who died depleted of time (which was to him before her time), as it is for the others. So, he has recognized his commonality with others and sees he cannot truly be saved unless they are, too.
The activist role of a poor White male in a movement for inequality is critical. The same applies today. Race and class equality cannot be a viable affront to the structures of supremacy until the movement encapsulates poor Whites and helps them finally see they are allowing themselves to be used to further inequality and separation from others who struggle with inequality. Poor Whites seem to be banking on White advantage, but barely surviving without the same remedies that poor non-Whites seek.
In addition to poor Whites generally, what about White women, regardless of economic class, as cartel breakers? This could apply especially to those who realize the gender cartels that oppress them. In the movie In Time, a rich White girl, Sylvia, joins the liberation effort. She has White privilege and class privilege, yet her father’s gendered views and desire to maintain status imprisons this young woman, with an indefinite imprisonment of time. As they are so rich that she might live forever, this living forever in a cage on a pedestal becomes quite distasteful to Sylvia. Is it possible that the sexism that is part of the reproduction of racism could become so distasteful that even middle and upper income White women can be enlisted, too, as cartel breakers to stymie the reproduction of racism?
Conclusion
Daria Roithmayr’s book, Reproducing Racism, provides an excellent framework to explain and study the reproduction of racism. In a time when racism is still rampant, an accessible way of confronting locked in White advantage is a needed key. Roithmayr provides this key, unlocking a door where those who dare to join as cartel breakers may enter and, hopefully, set America finally free by rendering the reproduction of racism stymied and eventually barren.
May 18, 2015 Ruthann Robson
Nancy Leong,
Identity Entrepreneurs, 104
Cal. L. Rev. ___ (forthcoming 2016), Available at
SSRN.
Have you ever invoked an outsider aspect of your identity? Maybe, like many applicants in academia, you’ve discussed how you would contribute to the diversity of the institution you hope to join. Possibly, like Sarah Palin, you’ve found an occasion to emphasize the “unique perspective” of women; or like John Edwards and Rick Perry, you’ve highlighted your working class roots. Or, perhaps less likely, you’ve needed to revive your fan base and found that coming out as a sexual minority could be a good career move; or you’ve embarked on stardom in adult films and discovered Asian femininity is a great asset; or your celebrity as a rap artist includes not only race and gender, but also geographic credibility.
If so, Nancy Leong contends you are hardly the only “identity entrepreneur.” While Leong acknowledges the postmodern work on “performativity,” her conceptualization is Marxian and stresses the value of identity in our capitalist society underwritten by the rule of law. For Leong, being an identity entrepreneur is neither necessarily good nor bad. Entrepreneurs, she states, are increasingly respected and popular in America, even as to be “entrepreneurial” connotes a person who is “self-promoting, grasping, inauthentic, a climber.” For Leong, the term “appropriately reflects ambivalence about the practice of identity entrepreneurship.” It is a “complicated phenomenon with both positive and negative consequences.”
Identity Entrepreneurs builds on Leong’s highly regarded previous article Racial Capitalism. Here she expands the range of identities and focuses on how “outsiders” leverage their status. She argues that identity entrepreneurship does have negative consequences: it can reinforce in-group preferences, divide out-group members from each other, and perpetuate group subordination. On the positive side, she contends that identity entrepreneurship can have benefits: it can increase autonomy for individuals; advance material and symbolic gains for other out-group members; and facilitate progress including support for other out-group members. All in all, she says, “Identity entrepreneurs walk a fine line.”
Leong’s article makes provocative reading for anyone interested in how we — and others — “leverage” our various identities. But while I might be interested in a dinner discussion about whether certain movies starring certain performers reinforce harmful stereotypes, I’ll admit that I can find cultural criticism in legal scholarship unsatisfying. But Leong’s article does turn to the legal questions at hand and posits that legal doctrine and policy relating to identity entrepreneurship should be governed by the following principles:
First, doctrine and policy should respect individual agency.
Second, doctrine and policy should encourage informed decision-making—that is, choices about identity entrepreneurship should be made with an understanding of how those choices affect individuals, groups, and society.
And finally, doctrine and policy should be evaluated according to whether they ultimately promote social progress toward a world in which identity is not a commodity and identity entrepreneurship is therefore irrelevant.
She explores these rather abstract principles in the last section of the article with concrete examples in Title VII, rights of publicity and privacy, and intellectual property.
It is Leong’s discussion of Title VII that makes Identity Entrepreneurs a real contribution to equality scholarship. Regarding sexual harassment, Leong explores the predicament of a woman employee who tries to be the “Cool Girl,” after a passage in Gillian Flynn’s successful novel (and then movie) Gone Girl. The “Cool Girl” is the heterosexual woman who is essentially “a dude in a hot girl’s body” and the opposite of a “feminazi.” As an identity entrepreneur, the “Cool Girl” consciously leverages “the ideal of the attractive, intelligent, tolerant woman who laughs at questionable jokes (giving such jokes undeserved legitimacy)” and thus uses her “Cool Girl status to advance in the workplace.” Given Title VII’s requirement that sexual advances be “unwelcome,” the “list of Cool Girls turned Title VII losers is a long one.” When the strategies of an identity entrepreneur no longer work — as when the harassment becomes intolerable or even turns violent — the Title VII claimant’s previous attempts to leverage her “Cool Girl” identity work to her disadvantage. She is not a victim, but a participant. Leong suggests that Title VII be amended, either by interpretation or statutory amendment, to “shift the burden from the plaintiff to prove unwelcomeness to the defendant to prove welcomeness.” Under this new interpretation, “playing along” would not be viewed as “anything other than ambiguous evidence,” and would recognize “the experience of navigating the workplaces as an outsider, including the decision to engage in forms of identity entrepreneurship.”
Additionally, Leong suggests that those who are not identity entrepreneurs should be better protected. One example she uses is Bryant v. Begin Manage Program, an opinion from the Eastern District of New York in 2003, in which an African American employee claimed discrimination because her employer disapproved of her failure to dress in an Afrocentric manner and of her lightened hair. Having written about this case in Dressing Constitutionally: Hierarchy, Sexuality, and Democracy as one which illustrated Title VII’s inability to confront discrimination based on so-called “grooming,” I was intrigued by Leong’s conceptualization of the situation and her doctrinal remedy. For Leong, courts using “comparators” among employees — to determine if there is discrimination based on a protected identity — should take into account different decisions relating to identity entrepreneurship. She concedes that she is “not necessarily advocating the view that a black women who engages in identity entrepreneurship is no longer ‘similarly situated’ to one who does not,” she nevertheless advocates that “courts need to acknowledge that in many workplaces identity entrepreneurship may create relevant differences between two members of the same identity category that warrant a more searching inquiry into whether they are appropriate comparators.”
Finally, and perhaps most controversially, Leong proposes that employers engage in affirmative training regarding identity entrepreneurship in order to go beyond platitudes of “treat everyone equally.” What makes this proposal controversial is not the training itself, but her suggestion that it would serve as employer immunity against hostile workplace claims under the Faragher-Ellerth doctrine. She admits that many might argue that “the last thing Title VII doctrine needs is a modification that makes it more difficult for plaintiffs to recover,” but insists that litigation is rarely the best outcome. Instead, such a revision in the law could “get us where we want to go,” not by providing recovery for violations but by “providing strong incentives to ensure that the law is never violated at all.”
At its core, Leong’s article insists law must be a force for progress toward a more egalitarian society. She complicates our understandings of identity, even as she recognizes the agency each of us possesses — in larger or smaller amounts — to capitalize on our various identities. Law cannot solve every social problem, she notes, but it can shape the ways in which individual identity entrepreneurs and the out-groups to which they belong can flourish.
Apr 17, 2015 Ann E. Tweedy
In The Fourth Trimester, Saru Matambanadzo braids personal narratives of her own pregnancy and birthing experience with legal analysis and with concepts and research from nursing and midwifery to craft a rich and courageous critique of current employment law’s application to pregnant women and new mothers. Matambanadzo’s thesis is that the law erroneously treats pregnancy as a discrete nine-month timeframe when in fact the physical and emotional effects of pregnancy linger, extending “into the first three months after delivery, and sometimes beyond.” (P. 124). She also addresses the shortcomings of laws that protect against pregnancy discrimination more generally. The Fourth Trimester concretely illuminates the ways in which the limitations of the current framework of federal law disadvantage workers who become pregnant and give birth by, for example, failing to adequately support breastfeeding and to provide the time needed after birth for the mother-infant dyad to become less interdependent.
Matambanadzo’s compelling arguments add a new dimension to legal scholarship on pregnancy in that they challenge not only the treatment of pregnant workers but also the firmly ingrained notion of pregnancy itself. Indeed the dichotomy between pregnant and not pregnant is paradigmatic in American culture—so much so that it exemplifies other black and white dichotomies, as illustrated by the expression that one cannot be “almost pregnant.” Matambanadzo successfully convinces the reader to rethink the notion of pregnancy itself.
Moreover, by using personal narratives to do so, she liberates us from the old questions of whether pregnancy discrimination is really sex discrimination and whether pregnant women are really similarly situated to non-pregnant persons (i.e., men). Instead, by taking the risk, in the vein of Critical Race Theory storytelling, of illustrating the physical and emotional aftereffects of birth in a deeply personal and vulnerable way, Matambanadzo dramatically shows us why pregnancy discrimination, including discrimination against new mothers, is a social justice issue. She enriches this analysis with information about how the current protections for pregnant workers under federal law, inadequate as they are, disproportionately benefit upper-middle and upper-class women, especially white women.
Among the most intractable problems with a discrimination law jurisprudence constructed upon a suspect-class framework is that, given the historic and ongoing lack of diversity in the judiciary, and the federal judiciary in particular, the judges deciding cases and ruling on dispositive motions often lack any experience with the type of the discrimination complained of or even with cultural subordination generally. This makes it difficult for such judges to comprehend the harms caused by discrimination. As Matambanadzo reminds us, another intractable problem is that the comparator in pregnancy and other sex discrimination cases is generally a male, presenting plaintiffs complaining of pregnancy discrimination with the often impossible task of proving that they are similarly situated as workers to a hypothetical man who was more favorably treated.
Matambanadzo gives us the tools to begin to attack both problems. By interspersing her legal analysis and discussions of nursing and midwifery literature with sections she calls “Arias” describing in detail the physical problems and intense emotional and physical interdependence she and her daughter experienced in the months after the daughter’s birth (as well as Matambanadzo’s physical challenges during pregnancy), she gives us—and particularly readers who have not been pregnant or given birth—a window into what it is really like to be pregnant and to have a baby.
I found this approach to be quite risky. Matambanadzo’s use of personal narrative made me aware that, in pregnancy and other gender-related contexts, my own immediate impulse is to try to prove that I can do whatever is generally expected of someone in my professional position rather than to demand or request an accommodation, however warranted. As we can see from studying equality feminism, this impulse is widespread—as well as understandable. By rejecting it—and instead telling us, for example, about the “painful dry twist” that caused her wrists, hips, and ankles to throb during her last three months of pregnancy as well as after her daughter’s birth—Matambanadzo exposes us to the physical pain that can accompany pregnancy and birth, thus allowing those who have never been pregnant to viscerally imagine some of the challenges it poses. Moreover, by setting out in detail the difficulties of her particular pregnancy and its aftereffects, Matambanadzo calls into question the validity of using a male comparator for an experience that is paradigmatically (although not exclusively) female. She helps normalize the experiences of pregnancy and new motherhood.
Matambanadzo’s coupling of these personal “Arias” with thoughtful critiques of the federal statutes that provide limited protections for pregnancy and, in some cases, new mothers, such as the Pregnancy Discrimination Act, the Family Medical Leave Act, the Fair Labor Standards Act, and the Americans with Disabilities Act, allows readers to concretely consider what the lacunae in federal law mean for new mothers and pregnant workers.
I also appreciated the fact that Matambanadzo draws on a conceptual framework based on the disciplines of nursing and midwifery. I find interdisciplinary legal scholarship to be very valuable in general, and the use of literature from these fields is of course particularly well-suited to shed light on pregnancy laws. Who better to ask about the nature of pregnancy and birth than those who care for pregnant and new mothers? And yet I have rarely if ever seen legal scholars—much less courts—draw on this literature in analyzing laws relating to pregnant workers and workers who are new mothers. It is perhaps a function of the legal academy’s elitism that it has failed to give adequate attention to this literature. Although midwives and maternal nurses are highly-trained specialists, both professions are traditionally female and as a result may lack the prestige that they deserve.
Matambanadzo’s use of this literature and of her own experiences helps ground her piece in the lived experience of pregnant women and new mothers. And the realities of such lived experience are exactly what is missing from the volumes of the Federal Supplement and the Federal Reporter in which pregnant women, breastfeeding mothers, and other new mothers are denied the accommodations they need to continue to both nurture their children and serve as productive workers.
Mar 23, 2015 Margaret Davies
The first thing I liked about Kirsten Anker’s book was its title. The idea of a declaration of interdependence is extremely evocative, and multilayered. It foregrounds values of connection and interdependence as basic to legal relations, within and between cultures, and also between human societies and our ecologies and environments. At the same time, it constitutes an ironic reflection on non-Indigenous histories, with their insistence on independence. Assertions of independence have been vital to shaping the nation-state world we currently live in, and which forms the legal and philosophical backdrop to this book. Declarations of independence may still have a defensible role in a world which oppresses marginalized groups and fails sufficiently to promote the self-determination of colonized peoples. But interdependence goes further, and acknowledges interconnection between peoples and their worlds – it reasserts that there are relations of dependence between groups, and relations between their laws. It also, and this is the real depth of this particular book, shows how the very act of defining and understanding any law in this context brings into play multivocal exercises of recognition, translation, and negotiation.
Throughout the book, Anker emphasizes that she seriously regards all sides of a relation as ‘dependent’ on the others (as well as, to a lesser degree, ‘independent’). In the context of Anker’s study, which primarily concerns legal relations between Indigenous and non-Indigenous people in Australia, the ‘sides’ of the relation are primarily two. When the two sides come together to negotiate or determine their legal relations, each is dependent on the other. This is not to deny the existence of state dominance or, on the other hand, to say that there can be no self-determination or autonomy for Aboriginal people. Rather it conveys the way that ‘decisions and their consequences will always be taking shape in relation to other communities and governments, at different scales.’ (P. 194). In order for there to be any real encounter between different legalities, they each have to be open to the other, and in particular to the process of being reconstituted by the other. Anker argues this mutual dependence by reference to philosophical tradition. In particular she points out that approaches to recognition and translation will be extremely problematic if understood or practiced simply in terms of one (sovereign) side having all of the power to recognize the other, or being permitted to assume that their own conceptual tools are sufficient to render the other’s world intelligible. For recognition and translation to work and for justice to be a plausible goal, the interpretive and conceptual horizons of both sides must shift. Even more importantly, Anker also argues this case inductively from detailed readings of significant native title cases, and through an analysis of the nature of negotiated settlements. At their most positive, even within the decision-making framework of state law, these sources show people coming together in a jurisgenerative space, in which ‘law’ appears as a dialogue rather than being given from above. (P. 103). At the same time, the opportunities for state law to misrecognize and mistranslate Aboriginal law, because of doctrinal dogmatism, ideology, or other limitations, remain considerable. The detail provided by Anker to illustrate these points is extraordinary, and quite impossible to do justice to in a short review.
The scholarly contribution of Declarations of Interdependence extends deeply into critical legal theory, legal pluralism, and jurisprudence. It is an especially effective contribution to and extension of contemporary critical legal pluralism. This strand of pluralist thought has, since the mid-1990s, argued not only that ‘pluralism’ is found where different legal orders exist within the one territory but also more importantly in ‘the very nature of law’ (P. 5) and in the kind of dialogue Anker describes as constitutive of law. In this sense, a critical pluralism is just as much related to legal theory and jurisprudence as it is to legal pluralism – it is more than just a variety of legal pluralism, more accurately it is a variety of legal theory or critical legal theory. It represents a convergence (though not a unification!) of the empirical and sociologically-informed elements of legal pluralism, with the anti-essentialism and conceptual innovations of critical legal theory. Such an approach characterizes legal plurality as a process, not as separately identifiable systems of law: law is open-ended, interpretable, in flux, formed by everyday relations, and contextual. It is both personal and dialogical, it is practiced, and reduced (albeit contingently) to a finite form. It thus occurs subjectively, as well as intersubjectively, and interculturally:
‘[critical] legal pluralism is something hosted by human selves: there is not a clash of two distinct systems in a social field, but a permanent interplay of ideas and principles in peoples’ minds, gleaned from innumerable sources, that resolves into ‘the law’ for any one person in any one situation.’ (P. 187).
Critical legal pluralism is a powerful and positive contribution to legal theory because it reimagines law in part from the bottom up, as a practice engaged in by human societies, rather than as a mere determinative limit to action or externalised set of rules or principles. Such a conception of law is key to intercultural co-existence.
For me, one of the most impressive aspects of Declarations of Interdependence is the way that Anker sustains her extremely detailed theoretical analysis throughout the text, while also undertaking an immensely complex and nuanced analysis of the native title cases. In the process, Anker adds her critical voice to a large and diverse number of theoretical issues, such as Hart’s distinction between habits and rules, Griffith’s conceptualization of legal pluralism as a fact, and theory relating to recognition. It all results in a very persuasive and thorough case being made for interdependence in legal relations, and in our understanding of law. This is therefore a book which is not only conceptually very satisfying, but also rich with promise for a critical reconstruction of the idea of law.
Feb 17, 2015 Elaine Craig
Michael Boucai’s new article, Glorious Precedents: When Gay Marriage was Radical, explores same-sex marriage in an era when “gay liberation” rather than “gay rights” described the aspirations of a movement aimed at revolutionizing American life. Through detailed archival and interview based research, Boucai offers a delightful recounting of the first three cases to produce reported judicial opinions denying gay marriage in the United States: Baker v Nelson, Jones v Hallahan, and Singer v Hara (all of which were decided in the early 1970s). His unfolding of marriage litigation in the post-Stonewall years captures the historical texture of these initiatives and the individuals that commenced them, but more importantly it reveals an account of the pursuit of gay marriage and its radical potential that differs significantly from the same sex marriage movement in its contemporary form.
According to Boucai, despite criticisms of the same sex marriage movement as assimilating for sexual minorities and reifying of problematic social institutions, these first cases were much more about gay liberation generally than gay marriage specifically. His documentation of the stated ambitions of the three couples, the legal arguments advanced by their lawyers, and details of the sexual and domestic lifestyles and the activist activities engaged in by many of the litigants persuasively disrupts the dominant account of early marriage litigation as out of step with the radical spirit of gay liberation at the time. Interestingly, Boucai’s account re-politicizes the litigant couples – as couples – by, in part, desexualizing them. For two of the couples, theirs was neither a story of romantic love, nor even a story of notable sexual attraction. Rather, it was coupledom based on political aspirations, friendship, and shared worldviews. For them the litigation – which everyone accepted “stood no chance of winning” – was rooted not in a desire to marry, nor a desire for state sanction and recognition of the value of their love and affinity for one another, but in efforts to challenge the gendered oppression perpetuated by the institution of marriage and to perform their same sex relationships in public and confrontational ways.
Part I of the article offers a review of the gay liberation movement in the early 1970s. Boucai highlights the movement’s focus during this period on not only gay equality but also on sexual freedom, disruption of class oppression and perhaps most importantly, challenges to gender roles, patriarchy, and sexism. The article proceeds, in Part II, to provide a detailed description of the plaintiffs, their commitment to the objectives of the gay liberation movement, and the context of the relationships for which these marriage licences were sought. Integrated into the stories of these couples are the legal arguments advanced by their lawyers. Boucai’s accessible writing and judiciously selected detail makes Part II a welcoming and fascinating read. Part III draws the connections between the lives and pursuits of these three couples and the aims and activities of the gay liberation movement at the time. Glorious Precedents readily reveals both the role of litigation, even that destined to fail, in social movements and the way in which the same legal strategy, or litigation target, can be motivated by very different aims depending on the era and context.
Here is something in particular that I liked (lots) about this article. Perhaps in the vein of Dale Carpenter’s telling of the story of Lawrence v Texas, Boucai embraces the messy facts that underlie these cases. He does not shy away from the discrepancies and inconsistencies between how these couples understood their project or engaged in their relationships. Instead, he allows the complexity of these stories to unfold as they do. The result is a compelling and vivid account of marriage litigation in the era of gay liberation – one which reveals as much about the scope of the intentions and achievements of its participants as it does about the limited horizons of those fighting for the right to same sex marriage today.
