If there was one real winner in last week’s Supreme Court decision in United States v. Windsor concerning the Defense of Marriage Act (DOMA), it would have to be Edith Windsor—to the tune of the $363,053 that the Court’s decision in United States v. Windsor awarded her. (One can only hope that she finds it fit to donate at least a portion of that bounty to a good cause.) And if there was one genuine loser in that case, it wasn’t the defendant United States, but the possibility of an American legal system which respects progressive/queer people.
I’ve posted before on the various problems that mainstream LGB rights groups—for example Human Rights Campaign, Freedom to Marry, and Lambda Legal—exhibit in both their legal imaginations and legal strategies. At times, it seems as if almost no one working at these organizations ever took a law school course with an ‘&’ in its title, much less a course focused entirely on critical legal studies. As a result, the arguments these organizations muster on behalf of same-sex marriage rights seem comically simplistic at times. I say ‘at times’ because, in fact, most of the time, as a queer, one is left shuddering—not laughing—at how thoroughly regressive the arguments which are being put forward for same-sex marriage rights in the United States right now are.
To be clear, I am not irrevocably opposed to same-sex marriage. As I’ve argued elsewhere, the problem with same-sex marriage is not ‘marriage’ per se (nor ‘same-sex’!), but the kinds of regressive and hegemonic arguments—often centered around dull and blunt ideas like ‘equality’ and ‘dignity’—that are being mustered for marriage rights, for everyone, everywhere, and for all time. These arguments are leading us towards a system of pan-continental mediocrity in how we recognize and define relationships; they are also leading both majority and minority communities away from democratic self-governance—a talent and skill which is already in short supply in the United States.
Put another way, the problem with United States v. Windsor is not that it is a same-sex marriage-affirming opinion, but that it is a Human Rights Campaign (et al.)-argued and a Justice Kennedy-authored marriage-affirming opinion. As a result, we have an opinion which is first and foremost a win for Edith Windsor, which is also a win for the regressive estate tax deduction, and which is also a win for the institution of marriage; in other words, ordinary human lives don’t matter much to this opinion.
I want to flesh out this claim about the inhumanity of United States v. Windsor in future posts, but let me offer a bit of my larger complaint against this opinion here by focusing on Justice Kennedy’s citation to the precedent he authored in Lawrence v. Texas on p. 19 of the slip opinion in Windsor. Others before have noted how Kennedy, in Lawrence, transformed and sanitized the right to anal and oral sex at issue in that case into a right to create “element[s] in a personal bond that is more enduring.” In other words, such a queer-skeptical read on Lawrence has argued that this opinion is not about a right to sexual play, frivolity, or momentary desire but is, instead, ultimately a pre-opinion about the right to sexual seriousness, loyalty, and servitude—or, to put it more bluntly, that Kennedy’s Lawrence opinion is not about the right to do something like Manhunt, but rather the right to do something like marriage.
In Windsor, Kennedy appears to confirm this queer-skeptical interpretation of the “personal bond” language from Lawrence, noting how New York, in “authorizing same-sex unions and same-sex marriages . . . sought to give further protection and dignity to that [Lawrencian] bond.” Put another way, after Windsor, Lawrence seems more and more now a case concerning the right to get engaged, while Windsor is about the right to marriage (and estate tax evasion) proper. With United States v. Windsor, then, Edith Windsor got a tax deduction, while the rest of us got a rights reduction.