Edith Windsor: 363,053; Queers: 0

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.  

Comments

[Fakey McUsername]

Still trying to tell whether this is a parody of crit writing or the author is actually being serious. Let's go through the highlights:
- "Estate tax evasion" - if you really want to suggest that marriage exists primarily for the purpose of avoiding taxes, go ahead - just don't expect anyone to take you seriously in the real world (or, for that matter, even in most law schools). As for "evasion," if you don't like the marriage exemption, you should be criticizing Congress, not Ms. Windsor.
- "Seriousness, loyalty, and servitude" - Spot the odd one out. Servitude? This isn't 1850, or even 1970. You write as if the first two are a bad thing; most people would say that they're positive. Not only that, but those who (apparently including you) think they're bad *don't have to get married.* If queerness is related to accepting diversity in sexual practices, you have to accept that a very large number of people want to be monogamous (or, at any rate, married).
- "System of pan-continental mediocrity" - I've read this phrase several times and am no closer to understanding what you mean by it. I understand what all the words mean, but they don't seem to fit together. This strikes me as a prime example of the principle that if you can't say it in clear English, you probably don't fully understand what you're saying.
- "Regressive" - again, you're completely ignoring the fact that *people want to be married.* They aren't arguing for a return to fornication or 'crimes against nature' laws for the unmarried. They just want the state to say that they can make their choice.
- "Rights reduction" - Again, a patent example of making the perfect the enemy of the good. If you want the Supreme Court to affirm all sexual choices, you should recognize the affirmation of one sexual choice as a positive step. It's not a "rights reduction" when rights are extended, just not as far as you'd like them to be.

[An Ally]

Is it just me or is social policy through tax exactly what the OP is talking about here? State sanctioned marriage? The state is intruding indirectly into the private sphere, regulating social structure through taxation. What is more, this a point where socially constructed notions of gender meet the socially regressive system of value created by the capitalist system. In fact, a cursory look at the literature seems to recognize the problem of tying up gender and money ("community of women" in Marx all the way up through more contemporary critiques pondering which came first, paternalism or capitalism). The post seems an accurate and thought provoking account from a legitimate (and alternative) pro-queer perspective. Giving it a cursory and sympathetic read, I'd say not only is it serious, it contributes to discourse.

Expecting a full explanation with cites and footnotes in a blog post seems a tad much; maybe the simplest solution then is just that you shouldn't join the conversation mid-stream without doing the assigned reading, Fakey McUsername, and shouldn't adopt an air of superiority by pointing out the obviousness of the status quo. As Pangloss would say, "Isn't it wonderful that noses are a perfect place to rest your spectacles? We truly live in the best of all possible worlds!"

While some of the language choices are purposefully and stylistically provocative in the post, your choice to pick nits over those provocative phrases without apparently giving them serious thought seems intellectually lazy.

This post encourages us to transcend "Is/ought" and stop aiming at impossible equality in fact and start aiming at creating an environment where non-majoritarian social goals are possible.

[Jeff Redding]

FM, thanks for your impassioned response. Just a few remarks in response:

1) You're right, it's not 1970 or 1850, but it may be 1838: http://www.bostonglobe.com/news/nation/2012/11/15/adultery-still-crime-states-including-mass/KiIPGRcFnAeT4CGmenFTKM/story.html

2) I acknowledge that people want to subordinate themselves and/or get married. And, as I said in my post, and as I've suggested in previous work of mine (see, e.g., http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1613370) the problem is not so much marriage, but *majoritarian* and *monopolistic* marriage, i.e. queer people being subsumed into a majoritarian institution (for lack of choice, perhaps because civil unions/domestic partnerships are declared unconstitutional) over which they will have little democratic control.

So, if in a given state, queers want to push for 'marriage,' I'm all for that, but I would suggest that that 'marriage' be claimed via a separate statutory framework whose amendment and modifying is not held hostage to sexually normative and majoritarian politics concerning children, decency, etc. In fact, in South Africa, there is a version of this pluralistic marriage set-up; I'm simplifying, but 'marriage' is available via different statutory frameworks.

In short, I'm for legally pluralistic routes to relationship-recognition. It should be up to the states and sub-state communities whether to call relationships 'marriage,' 'merryage,' partnership,' 'dignity' (see again http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1613370), etc.

[matt]

This post is amazing in how out of touch it is with the practice of law. The author criticizes the briefs and legal strategies because they don't reflect the topics discussed in "course[s] with an ‘&’ in its title, much less a course focused entirely on critical legal studies." The point of litigation is not to impress law professors, it is to persuade the judges who will decide the case. Mr. Redding offers no evidence that the Justices would have been more likely to be persuaded by his critical legal studies arguments.
The post is also remarkable for its combination of big words and vagueness. I've read it twice and still can't tell what Mr. Redding is advocating. Does he want people to have the right to enter into legal arrangements related to their relationship? They already have this through contracts, wills, power of attorney etc.
Given all of this I can't say I'm surprised by the difficulty graduates of Mr. Redding's institution have in finding decent employment (less than half had jobs requiring bar passage at firms with more than 10 attorneys). They must spend their time studying critical legal studies and taking "law &" courses which leave them unable to help people with ordinary legal problems.

[Jason Mazzone]

The first two sentences seem to me an odd description of the case. The Court didn't "award" Edith Windsor anything. And so there is no "bounty" for her to "donate" to a "good cause." The amount at issue was a tax bill she no longer has to pay.

[Jeff Redding]

Matt: Thank you for your concern for the students of my institution. I'm sure they appreciate all you are doing for them.

Jason: I may be misreading the facts of the case, but in the slip opinion I'm reading, the first paragraph indicates that Edith Windsor first paid the demanded taxes and then filed suit to challenge DOMA and to get her tax payment back.

[Jason Mazzone]

Yes, that's right. That's what you have to do to challenge the constitutionality of a tax assessment. But when you get back the amount you (over)paid to the IRS you haven't received an "award" or a "bounty" -- you are (at best) back in the position you were in before you sent in the check.

[Jeff Redding]

Jason, I think we may then just be disagreeing about the social welfare implications of Edith Windsor and how her estate is and should be taxed.

[VII 05]

1. SANITIZED? Justice Kennedy's Lawrence opinion is about the right to hook up on Manhunt--and so much more. If Justice Kennedy had written that sodomy laws were only about oral and anal sex, wouldn't that have been essentializing? The case involved both sodomy laws and people who hooked up. To say that sodomy laws were far reaching did not hegemonically degrade people who hook up. JR cherry picked one tangent and totalized it. Look elsewhere in the opinion and you'll see several references to "sex" and "conduct"; the opinion is not all about marriage. Indeed, in the next-to-next-to-last paragraph, Justice Kennedy underscores that the case is about sex:

"It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter. The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government."

2. TAX POLICY. Please expand upon the "social welfare implications of Edith Windsor and how her estate is and should be taxed." This is not Jason, by the way; I would just really like to know what principled basis you have for singling out Edith Windsor from hundreds of thousands of married couples who legitimately engage in tax planning.

3. LANGUAGE. I think the use here of the Q-word is offensive, but I guess if I had a minor in ampersand law I might approve. Consider discussing this topic in your forthcoming series of posts.

[Paula Pottymouth Dean]

Are you trying to become the Paula Dean of the sexual minority set? If so, you are off to a great start! Your repeated and intentional use of what, in the larger community, is a clear slur reflects either a desire to be intentionally offensive -- or you're simply obtuse. Make the Windsor case about race and ask if you'd so blithely toss the N-word around. I don't think you would. And don't get all huffy and say "I'm just using the nomenclature of Q-Theory set." This isn't a Q-theory forum. It's a general academic law forum, and most readers are NOT going to understand that within a small, highly specialized and cloistered corps of "Law &" types, use of the Q word is entirely quotidian. (Much as use of the N-word is quotidian among certain performing artists -- and some CRT types.)

I also think your argument about Justice Kennedy lacking respect or consideration for sexual minorities is totally asinine. Just ask yourself if you'd rather be writing about majority opinions regarding the rights of sexual minorities authored by Robert Bork (whom Reagan nominated to this seat prior to Justice Kennedy). Kennedy consistently has invoked the government's obligation to show respect and regard for the "dignity" of sexual minorities. I don't know what more you want -- particularly from this Supreme Court.

[Seval Yildirim]

Jeff, thank you for this post. I very much appreciate that Faculty Lounge is including this critical voice.

I hope we can eventually get rid of the alphabet soup of titles that demand individual sexual identification. Perhaps those who are offended by the term queer should read this decision from India, paying attention to the Court's discussion of why the term queer is preferable to other alphabet soups: http://www.indiankanoon.org/doc/1801037/

And those who fail to get Jeff's primary point- it is one against conformity, problematic and unjust norms being confirmed and reinforced under the guise of progress etc.

Finally, as to litigation strategies and being out of touch with the real world- I can appreciate that often a litigator needs to make strategic choices to appeal to perceived prejudices of the decision-maker (judges/juries)- this does not mean the choices are not open to critique, or that they do not have negative and lasting effects on sustaining problematic norms and morality conceptualizations.

[VII 6]

I skimmed the lengthy decision from India and am not seeing the connection. Any paragraphs in particular?

[Jeff Redding]

VII, thanks for your comments. Let me respond in reverse order:

1) Language: First of all, "Ampersand Law" - love it! What a wonderful expression. Kudos! I've explained my use of the word 'queer' in previous posts, one of which is here: http://www.thefacultylounge.org/2013/04/the-curious-case-of-the-missing-q.html

2) Tax Policy: I'm not the one who singled Edith Windsor out; she and the LGB organizations who decided to use her as a test case did that singling out. And the point, again, is that of all the uses and abuses of DOMA experienced by thousands of people around the country, it is telling that LGB organizations used a rich white person's tax problems to press their equality agenda. I'll have more to say about other potential plaintiffs in follow-up posts to this one.

3) Sanitized: Again, I'm not the one who seized on that phrase from Lawrence in the context of Windsor, but Justice Kennedy himself. Of course opinions are often complex, contradictory, and open to interpretation, and I don't deny that Lawrence could be used in sex-positive ways (perhaps by someone who is sex-positive themselves). But there is also really sex-negative language in that opinion—language which Kennedy seized upon to affirm the importance of marriage in Windsor. I'm only pointing out that the queer-skeptical read on Lawrence is buttressed by Kennedy's own use and interpretation of—his cherry-picking from—his previous Lawrence opinion.

[Jeff Redding]

PPD, first, thank you for defining the parameters of this blog, and also the larger LGBTQIAA community; I am appreciative of your policing role.

Second, I think you are referring to Paula Deen, not Dean.

Finally, I think the award for 'Pottymouth of the Sexual Minority Set' has got to go to Margaret Cho, no? :-)

[VII]

From your other post and comments on it, I get a sense of Q (as you use it, at least) as a non-sexual term. Almost like a revival of the primary sense of the word before the sexual connotations took hold more firmly. Your version sounded more like maverick and iconoclast. Am I misreading?

I have not yet done an ampersand analysis of Windsor, but for a marriage case, it seems fitting that it would draw more from Lawrence's long-term relationship threads than the sex theme. I look forward to re-reading Windsor with an eye out for the anti-hookup message.

To be clear, I share your frustration with marriage hagiography. I am just skeptical of this particular target.

[Lurkinglawprof]

What your commenters are trying to say is that outside of the echo chamber you apparently live in, your arguments sound like a huge stinking bunch o' b.s.

[Jeff Redding]

VII, that's a fair reading of my position on the meaning of 'queer,' but I would just add that how imbricated discussions of normative sexuality are in mainstream politics, it's hard to partition 'queer' off from a discussion and practice of sexuality itself. And then that also begs the question of what 'sex' and 'sexuality' exactly are...