Glorious Precedents: When Gay Marriage Was Radical

In the years immediately following the Stonewall riots of June 1969, a period when “gay liberation” rather than “gay rights” described the ambitions of a movement, three marriage cases made their way to and beyond trial: Baker v. Nelson in Minnesota, Jones v. Hallahan in Kentucky, and Singer v. Hara in Washington State. This article offers a detailed account of that early trilogy. Drawing on extensive archival research and on interviews with key players in each case, it shows that, contrary to received wisdom, Stonewall-era marriage litigation was faithful to gay liberation’s radical aspirations. The Baker, Jones, and Singer lawsuits deployed marriage’s symbolic cachet to proclaim homosexuality’s equality, legal and moral, in a society that almost ubiquitously criminalized its practice. They protested the traditional gender roles that gay liberationists located at the heart of their oppression and that marriage, at the time, not only fostered but legally prescribed. They provided a platform from which to critique other aspects of marriage, such as the rule of monogamy and the state’s coercive, intrusive preference for a particular form of intimate association. Perhaps most importantly, these cases were sensational advertisements of gay people, gay relationships, and the nascent gay liberation movement. The first gay marriage plaintiffs were closely affiliated with that movement and, despite widespread antipathy toward marriage, fellow liberationists generally applauded the lawsuits as effective vehicles for declaring the movement’s existence and communicating several of its most important messages. This history, important in its own right, allows us to grasp some of the underlying stakes and radical possibilities of the signal gay rights issue of our time

Sexual Liberty and Same-Sex Marriage: An Argument from Bisexuality

This article proposes that same-sex marriage bans channel individuals, particularly bisexuals, into heterosexual relationship and relationships, impermissibly burdening sexual liberty interests protected under Lawrence v. Texas. A claim from sexual liberty departs dramatically from the legal paradigms and advocacy strategies that currently dictate the terms of constitutional debate on this issue. This article proceeds in four parts. Part II develops the legal argument that same-sex marriage bans are unconstitutional under Lawrence because they substantially burden the right to choose homosexual relations and relationships. Part III posits bisexuality, understood as dual-sex desire, as an illuminating perspective on the coerced heterosexuality of marriage. Part IV asks why same-sex marriage advocates, far from advancing any argument specifically grounded in bisexuality, faithfully uphold what Professor Kenji Yoshino dubbed an epistemic contract of bisexual erasure. Part V describes the politics of containment lurking behind the rhetoric of homosexual equality. The article concludes that a claim from (bi)sexual liberty is worth raising in same-sex marriage litigation despite the existence of sometimes-successful alternatives

Sexual Liberty and Same-Sex Marriage: An Argument from Bisexuality

In Lawrence v. Texas (2003), the U.S. Supreme Court recognized a right to choose homosexual relations and relationships. Same-sex marriage bans unconstitutionally burden this right because they have the purpose and effect of channeling individuals into heterosexual relations and relationships. Bisexuals are in the best position to raise this claim because they share homosexuals’ interest in the freedom to choose same-sex partners, yet are more easily steered toward different-sex partners by marriage’s enormous prestige and benefits. An argument from bisexuality for same-sex marriage refutes on normative rather than empirical grounds what this article calls “the politics of containment,” a politics fueled by the fear that recognizing gay rights will increase the popularity of “homosexual lifestyle choices.” To date, gay rights advocates have accommodated this fear by erasing bisexuality and obscuring the erotic choice bisexuality represents. In same-sex marriage litigation, this tendency manifests in three prominent equal protection arguments: (1) “the conduct-status conflation,” which casts laws that disadvantage homosexual relationships as discriminations against homosexual people; (2) “the claim of identity negation,” which holds that a homosexual’s right to marry heterosexually is no right at all; and (3) “the immutability excuse,” which pleads for heightened scrutiny on the ground that sexual orientation is inalterable. Each of these arguments, as presently articulated, is legally and strategically flawed. There are several reasons, beyond legal plausibility, why the bisexual’s liberty-based claim is worth raising in same-sex marriage litigation. First, the argument gives voice to the real grievances of a large and neglected gay rights constituency. Second, by framing same-sex marriage bans as coercive as well as discriminatory, the argument honors the difference between liberating homosexuality and liberating homosexuals, advancing a universalizing conception of gay rights that may enable detection of subtler compulsions than marriage. Finally, by framing this civil rights imperative as a matter of sexual liberty, the argument develops a constitutional value that, in Lawrence’s words, “persons in every generation…can invoke in their own search for greater freedom.

Caught in a Web of Ignorances: How Black Americans are Denied Equal Protection of the Laws

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Before \u3cem\u3eLoving\u3c/em\u3e: The Lost Origins of the Right to Marry

For almost two centuries of this nation’s history, the basic contours of the fundamental right to marry were fairly clear as a matter of natural, not constitutional, law. The right encompassed marriage’s essential characteristics: onjugality and contract, portability and permanence. This Article defines those four dimensions of the natural right to marry and describes their reflections and contradictions in positive law prior to Loving v. Virginia (1967). In that landmark case, the Supreme Court enforced a constitutional “freedom to marry” just when marriage’s definitive attributes were on the brink of legal collapse. Not only did wedlock proceed in Loving’s wake to lose its exclusive claims to licit sex and legitimate procreation, personal autonomy in those very domains gained independent constitutional protection. Drained of its conjugal essence, today’s constitutional right to marry is thus an anachronism, the vestige of a bygone consensus about what, if anything, “marriage” fundamentally is

Topology of the Closet

Despite the closet’s centrality to queer culture and theory, the metaphor’s various meanings have yet to be disaggregated and defined. Following Eve Kosofsky Sedgwick’s identification of the closet with a “crisis of homo/heterosexual definition, indicatively male, dating from the end of the nineteenth century,” the present article uses an array of late-Victorian sources—especially The Memoirs of John Addington Symonds and Teleny, a pornographic novel sometimes attributed to Oscar Wilde—to describe and distinguish: (1) so-called latent homosexuality (“the unconscious closet”); (2) deliberate strategies of suppression, abstention, and reformation (“the conscious closet”); (3) clandestine pursuits of gay sex and sociability (“the double life”); and (4) performances of a heterosexual persona (“the mask”). This article’s sources further attest to the late-Victorian advent of “closet consciousness”—a recognition among certain homosexually-inclined men that the closet’s multiple modalities, for all their variety, are phenomenologically and ideologically linked