Here at Jotwell, McGill’s Robert Leckey has reviewed London based writer and UCL-affiliated Yuvraj Joshi’s Respectable Queerness.
On Joshi’s reading, and it is a fair one, the push for same-sex marriage has proceeded less by demanding respect than by attempting to demonstrate gay men’s and lesbians’ respectability. The agency associated with respectability is a key analytical insight: while assimilation refers to pressures imposed by the mainstream, respectability gestures to efforts made by gay men and lesbians to remake themselves as worthy of recognition. Think of the factual accounts of model plaintiffs advanced to courts in same-sex marriage litigation, which were advanced in order to establish couples’ stability and heteronormativity.
Check out the review and the original article.
Also touching on the respectability point as part of a much larger development of the feminist critique of same-sex marriage is Dr. Nicola Barker in Not the Marrying Kind: A Feminist Critique of Same-Sex Marriage (Palgrave-MacMillan Socio-Legal Studies 2012) (not that Nicola Barker, this one, from Kent Law School (UK)). You can hear her discuss the book here, podcast from Feminist Current. You can also download a sample chapter from the publisher here
Not the Marrying Kind is a new and comprehensive exploration of the contemporary same-sex marriage debates in several jurisdictions including Australia, Canada, South Africa, the United Kingdom and the United States. It departs from much of the existing scholarship on same-sex marriage, which argues either for or against marriage for same-sex couples. Instead, this book begins from a critical analysis of the institution of marriage itself (as well as separate forms of relationship recognition, such as civil partnership, PaCS, domestic partnership) and asks whether and how feminist critiques of marriage might be applied specifically to same-sex marriage. In doing this, the author combines the theories of second wave feminism with insights from contemporary queer theory.
In a talk co-sponsored by the IFLS and the Osgoode Colloquium on Law, Religion & Social Thought, Professor Ngaire Naffine of the University of Adelaide Faculty of Law explored the ways in which, through the regulation of intimate and married life, “the criminal law, the Church, and the family conspired” to deny liberal legal personhood to women. She quoted J.S. Mill’s the Subjection of Women (1869):
… however brutal a tyrant she may unfortunately be chained to — though she may know that he hates her, though it may be his daily pleasure to torture her, and though she may feel it impossible not to loathe him — he can claim from her and enforce the lowest degradation of a human being, that of being made the instrument of an animal function contrary to her inclinations. While she is held in this worst description of slavery as to her own person, what is her position in regard to the children in whom she and her master have a joint interest? They are by law his children. He alone has any legal rights over them.
in her historically and philosophically rich talk that took as its launching-off point a recent High Court decision that denied that the law of Australia ever recognized marital immunity for the crime of rape, Naffine pushed the audience of over 60 guests to think about the way in which the sexual revolution of the 1960s invited a new way of thinking about legal personhood. You can find the case, PGA v. The Queen  HCA 21, here:
Thus, at all times relevant to this appeal, and contrary to Hale’s proposition, at common law a husband could be guilty of a rape committed by him upon his lawful wife. Lawful marriage to a complainant provided neither a defence to, nor an immunity from, a prosecution for rape. [para 64, majority judgement]
This new — more relational — way of thinking about the legal person, Naffine argued, is one in which rape and marital violence is not only a defect in regard for the personhood of women, but threatens to “unperson” criminal law’s reasonable man. Here, Naffine referred to the work of Jennifer Nedelsky on relational theory, including the recent “Law’s Relations”. For Naffine, the spousal immunity for rape cannot be viewed as an aberration or exception within the criminal law; rather it is central to understanding how law constructs the legal person and its effects on gender equality. Her closing warned that the elimination of the marital exemption has existed for the “blink of an eye” in historical perspective – and she sees backsliding on progress made in gender justice, pointing as one example to the current controversy in Australia over the decision of the Sydney Anglican Diocese to create new (old? apparently a reversion to 1662) marriage vows that have women agreeing to “submit” to their husbands. She also cited the work of Osgoode PhD Ruthy Lazar, “Negotiating Sex: The Legal Construct of Consent in Cases of Wife Rape in Ontario, Canada.” Canadian Journal of Women and the Law 22.2 (2010): 329-364 (sorry, not open source) (Lazar points out how the removal of the exemption is undercut by attitudes widely held by defense attorneys and crown attorney’s. Her method involved interviews with key criminal justice actors – worth a read).
Naffine’s talk was fully of intellectual honesty, humour, (pop)cultural references (Germaine Greer, the Beatles), and revelation (she worked as a police officer after finishing law school). We’ll post the tape when we get it. Meanwhile, professor Naffine will speak again, on a different topic, Monday October 1.
Other Upcoming Events
On October 25 at 12.30 p.m., the IFLS presents Professor Joanna Erdman,, the new MacBain Chair in Health Law and Policy, Schulich School of Law, Dalhousie University. Please visit http://ifls.osgoode.yorku.ca for more details and information about the IFLS. The next speaker in the Osgoode Colloquium on Law, Religion & Social Thought will be Professor Richard Moon (Windsor), who will deliver a talk on November 26 at 12.30 p.m. in Room 2027. For more information about the Colloquium, or to be added to the e-mail list for alerts about upcoming events and speakers, please e-mail email@example.com.
thanks to @blberger for drafting the lion’s share of this post. I did the little hyena bit.
Two pieces on marriage, both with a historical bent, both available on SSRN. In the first, Columbia’s Katherine Franke asks why marriage has received so much attention in the struggle of same sex/LGBTTQ rights, and attempts to sketch an answer by looking to the period immediately after the Civil War when African Americans received the right to marry. Analogy and equality, some of my favourite things!
The Murray article points out that until relatively recently, marriage was sometimes part of the punishment for the “crime” of seduction. This leads author Melissa Murray (UCLA – Berkeley) to argue that those involved in the struggle for marriage equality have not paid enough attention to the role of marriage as a punishment, or technique of state discipline. Murray’s article is award winning. Cannot wait to get to these. Today? Tomorrow? Very soon. They are on my ipad, waiting for me.
See! I have restrained myself from making a snarky comment about weddings being a form of punishment.
KATHERINE M. FRANKE, Columbia Law School “The Curious Relationship of Marriage and Freedom”
MARRIAGE AT A CROSSROADS, E. Scott and M. Garrison, eds., 2012 Columbia Public Law Research Paper
This essay explores why and how today’s marriage equality movement for same-sex couples might benefit from lessons learned by African Americans when they too were allowed to marry for the first time in the immediate post-Civil War era. Why has the right to marry, rather than say, employment rights, educational opportunity or political participation, emerged as the preeminent vehicle by and through which the freedom, equality and dignity of gay men and lesbians is being fought in the present moment. Why marriage? In what ways are the values, aspirations, and even identity of an oppressed community shaped when they are articulated in and through the institution of marriage? What kind of freedom and what kind of equality does the capacity to marry bring forth?
In important ways, what we are witnessing today with same-sex couples echoes the experience of another group of new rights-holders almost 150 years ago. To better understand how the gay rights movement today has collapsed into a marriage rights movement, and what the costs of such a strategy might be, the essay looks backward in history to another time when marriage rights intersected with the rights of freedom, equality and dignity of a marginalized population: newly emancipated Black people in the mid-nineteenth century.
MELISSA E. MURRAY, University of California, Berkeley – School of Law “Marriage as Punishment”
Columbia Law Review, Vol. 100, No. 2, 2012 UC Berkeley Public Law Research Paper No. 1952311
Popular discourse portrays marriage as a source of innumerable public and private benefits, happiness, companionship, financial security, and even good health. Complementing this view, our legal discourse frames the right to marry as a right of access, the exercise of which is an act of autonomy and free will. However, a closer look at marriage’s past reveals a more complicated portrait. Marriage has been used – and importantly, continues to be used – as state-imposed sexual discipline.
Until the mid-twentieth century, marriage played an important role in the crime of seduction. Enacted in a majority of U.S. jurisdictions in the nineteenth century, seduction statutes punished those who ‘seduced and had sexual intercourse with an unmarried female of previously chaste character’ under a ‘promise of marriage.’ Seduction statutes routinely prescribed a bar to prosecution for the offense: marriage. The defendant could simply marry the victim and avoid liability for the crime. However, marriage did more than serve as a bar to prosecution. It also was understood as a punishment for the crime. Just as incarceration promoted the internalization of discipline and reform of the inmate, marriage’s attendant legal and social obligations imposed upon defendant and victim a new disciplined identity, transforming them from sexual outlaws into in-laws.
The history of marriage as punishment offers important insights for contemporary discussions of marriage. It reveals the way in which our current discourses of marriage are naïve and incomplete, emphasizing marriage’s many attributes while downplaying its role as a vehicle of state-imposed sexual discipline. In view of this history, our contemporary jurisprudence on the right to marry can be reread to reveal the disciplinary strains that continue to undergird marriage and the right to marry. Most importantly, this history reveals that state regulation of sex and sexuality has been a totalizing endeavor, relying on marriage and criminal law as two essential domains for disciplining and regulating sexuality.
With this in mind, the recent struggle for marriage equality seems unduly narrow. While achieving marriage equality is important, this history underscores an equally important interest in defining and preserving spaces for sexual liberty that exist beyond the disciplining domains of the state.
What’s in a name? For married women, a lifetime of effort. via Nancy Leong at Feminist Law Professors
I thought this was an interesting piece and I hope to get a chance to read the Elizabeth Emens article linked in the post. I kept “my” name. But what about my mother’s name? And my grandmothers’? I still remember my boiling [suppressed] rage when my grandfather referred to my younger brother as “the last of the Lawrences” (that side is a very, very small family). And moving on from decisions about “our” names – what about the kids? Happily, I can at least lay my tween rage to rest, since my brother has three little girls. Hah. They are not likely the last of anything. Although, they too have his last name and not their mother’s. I wonder how many of these five girls (all under 6) will marry/men/change their name? Chances are good, not all, right? So there, study participants.