Adler - Gay Rights PDF

5/30/13
Harvard Civil Rights-Civil Liberties Law Review CR-CL Presents a Colloquium, Gay Rights and Lefts: Rights Critique and the Distributive Analysis.
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CR-CL Presents a Colloquium, Gay Rights and Lefts: Rights Critique and the Distributive Analysis.
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Introduction
On March 9, 2011 at 5-7p.m. at Harvard Law School Professor Libby Adler presented her article entitled, Gay Rights and Lefts: Rights Critique and Distributive Analysis for Real Law Reform. Following Professor Adlers presentation, Adrienne Davis, William M. Van Cleve Professor of Law at Washington University Law and Shannon Minter, Director of the National Center for Lesbian Rights responded to her piece. Professor Adlers article can be read below. Video of the discussion is available here. In addition, a variety of commentators with backgrounds ranging from practice, to academia and even activism, have responded to Professor Adlers call for decisionism. Their responses can be found by clicking on their names below Professor Adlers article. Upon review and digestion of these pieces, we invite readers respond on the message board below.
GayRightsandLefts: RightsCritiqueandDistributiveAnalysisforRealLawReform LibbyAdler
harvardcrcl.org/cr-cl-presents-a-colloquium-gay-rights-and-lefts-rights-critique-and-the-distributive-analysis/#_edn5
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I.Introduction
[i] Acommonrebukeagainstcriticallegalworkisthatithasatendencytounderminewithoutsubstituting. Itmightseem outrageousthen,foracritictopersist,obdurately,inhisorherfailurebytakinganexplicitstandagainstreconstructiona [ii] deliberatelyirresponsibleandevennihilistic position,unworthyofanyclaimtoleftism.Thisparticularversionofanti criticalcondemnationisbuiltonacolossaloversight.Itconflatesreconstruction theactofelaboratinganewtotalizing [iii] theorythatjustifiesoneslawreformagenda withtheagendaitself.
Inrecentarticles,Ihavecritiquedtheformalequalityideologythatanimatesthecontemporarygayrightsmovementinthe [iv] UnitedStates. Initsstead,Ihavenotofferedanewlyreconstructedtheorythatpurportstoexplainwhylesbian,gay, bisexual,transgenderandgendernonconforming(LGBTGNC)peopleareentitledtoasetofequalizing(ordignifyingor liberating)lawreforms,nordoIintendtodoso.Ihave,however,begunanarduouscourseofreimaginingaconcretelaw reformagendathatIhopeholdssomepotentialforimprovingthelegalconditionsfacedbythoselivingfurthestoutonthe [v] marginsofsexualityandgender.
Thispaperexplainshowthecritiqueandtheconcreteideascombinetoexemplifyacriticalapproachtolawreformagenda setting.Themethodologyrestsonadistinctionbetweenreconstruction anddecisionism.Decisionism,accordingtomyusage, consistsofmakingdifficultchoicesaboutwhichlawreforminitiativestoundertakebasedonbroadlyinformeddistributional hypothesesandcostbenefitcalculationsandthenactingonthebestinformationonecangetwiththebestjudgmentonecan [vi] muster,alwayspreparedtobearthecostsofoneschoices. Eachlawreformachievement,shoulditmaterialize,ratherthan beingastepalongapathinthedirectionofalodestarsuchasformalequality,willonehopeseffectuateapositive distributiveimpactformarginalizedpersonswhileimposingbearablecosts.Asatheoreticmatter,theachievementislikelyto begeneralizableonlytoalimitedextent,ifatall.Inotherwords,itwillnotnecessarilyfurtheranyoverarchingtheoretic [vii] objective.
[viii] ThecritiqueofrightshasahistorythatdoesnothavemuchtodowiththerightsofLGBTGNCpeople. Beginninginthe [ix] 1980sandcreepingintothe1990s,aninformalassociationoflegalscholarsinterestedincriticallegalstudies(CLS) (a.k.a.thecrits)offeredseveralstrandsofcritique.Thatcritiquewasambivalentlyreceivedbydevoteesofcriticalrace [x] [xi] theory (a.k.a.theracecrits)andasubgroupoffeministlegaltheorists (a.k.a.thefemcrits).Nogaycritorqueercrit [xii] contingentappearedinthoseearlyconversations.
EvennowthatthereisaburgeoningliteratureonLGBTGNClegalissues,myresearchturnedupnofullyelaborated [xiii] discussionsofthecritiqueofrightsinthatcontext myownworkisinpartanefforttofillthatgap.WilliamEskridge,the wellknownproponentofsamesexmarriage,hasaddressedsomeoftheargumentsagainstsamesexmarriageemanatingfrom [xiv] theleft, butasfarasIcouldfindhasnotdiscussedthecritiqueofrightsdiscoursespecifically.Inatleastonespothe
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[xv] positionshimselfagainstrightscritics,butwithoutasubstantiverebuttal. TheclosestIwasabletolocatecameinhis lengthyarticleonidentitybasedsocialmovementsinwhichheexplainslimitedjudicialactivismconstrainedbypolitics (discussinggayrightsandotherrights),buthedoesnotsquarelyconfrontanycritiquethatwouldcastdoubtonthevery [xvi] assumptionsofactivismorconstraint. SuzanneGoldberghasengagedthecritiqueofidentity,butinthecontextof [xvii] rightsorientedlitigationthatwasotherwiseassumed. PaisleyCurrahhasrespondedtorightscriticismfrom communitarianquarters,inwhichtheanimatingconcernisforthecommongood(againstwhichidentitybasedrights [xviii] claimstendtochafe),butnottothecritiqueofrightsemanatingfromthecrits.
[xix] Thatconversationaboutrightscritiquehasoccurredmainlywithregardtotherightsofracialminoritiesandwomen. Still,ananalogous,sharpdisconnectionexistsbetweenthoseengagedintheongoingarchitectureofthegayrightsagenda andthosewritinginqueerandothercriticaltraditions.Itakethistobeevidencethatantecedentdiscussantsfromtheother twocivilrightscontextshavecastlongshadowsandthatpersonsconcernedwiththesexualityandgendermarginshave assumedcorrespondingpositions.Whathashappenedsincetheinitialdiscussionsamongthevariouscriticalstrands,bothin thedomainoflawreformonbehalfofLGBTGNCpeopleandintheevolutionofqueertheory,warrantsrevisitingthecritique ofrightswithafresheyeandafocusonissuesofsexualityandgender.Idothathere.
Ourcurrenthistoricalmomentprovidesamoregeneralreasontorevisitthedebateoverthecritiqueofrights,beyondthose reasonspresentedbydevelopmentsspecifictothesexualityandgendermargins.TheRehnquistCourtdeliveredabitofa beatingtotheleftusingtheclubofrights,andtheRobertsCourtstillinitsearlyyearsseemsunlikelytoprovidearespite. [xx] [xxi] [xxii] CasessuchasBushv.Gore, McDonaldv.CityofChicago , andCitizensUnitedv.FEC allrightwingvictories premisedonrightsaremorethanjustpoliticallydemoralizingtotheleft.Decisionssuchasthesecouldunderminewhat faiththereisinrightsasapathtowardprogressivechange.Itseemsthateverygenerationofleftistswillhavetolearnthehard [xxiii] waythelessonsofLochner unlessanduntilthelefttakesseriouslythehazardsofrightsfirstobservedbythelegal realists,elaboratedbythecrits,andfurtherelaboratedincertainrespectsbyqueertheory.Embraceofthecritiqueofrights doesnotleadinexorablytonihilismifwecanletgoofreconstructionasouronlyconceptionofhowtomakeapositive contributionandteachourselvesinsteadtoberigorousdistributivethinkersintheserviceofconcretechange.
II.RevisitingtheDebateoverCritiqueofRights
IbeginbybrieflyreviewingsomeofwhatIfoundinthewritingsofmyprogenitors,borrowingwhatseemsmostapplicable [xxiv] fromtheirindispensiblework. IconsiderhowpertinentargumentsplayoutintheLGBTGNCrightscontextand discusshowinsightsdrawnfromqueertheorycouldenrichcriticalanalysisinthatsamecontext.Itismycontentionthatone canassemblefromthesecriticaltraditionsaneminentlyresponsiblelegalleftismforthebenefitofpersonslivingonthe marginsofsexualityandgender.Throughdiligent,evenpainstakingattentiontoabroadarrayoflegalconditions,thecritical approachtoagendasettingdevelopedherecanbeusedtogenerateconcretelawreformproposalsthat,whileimperfect, neitherreplicatethedeepproblemsofrightsnormakethemselvesvulnerabletochargesofnihilism.
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A.Indeterminacyvs.Utility
[xxv] Theindeterminacyoflawisperhapsthemostfamiliarcritthesis. Rights,accordingtosomeCLSwriters,areunstable, [xxvi] sothatarightthatbringsafavorableresultforaminorityinonecasemighteasilyfailtodosointhenext. Thisis [xxvii] becausearightisanabstraction,notatightdescriptionofwhatalitigantactuallyseeks. Wemighteasily,therefore, havedifferentideasaboutthemeaningofaright,suchasequality,which,forexample,supportsaprogramofaffirmative [xxviii] actionaccordingtoonedefinitionandprecludesitaccordingtoanother.
Moreover,rightsoftenconflictwithoneanother,sothatajudgemustchoosebetweentheminagivencase,ratherthan [xxix] identifythesolerightthatisatstakeanddeducehisorherwaytoacaseoutcome. IntheLGBTGNCcontext,this phenomenoniseasytospot.Gayandtransgenderrightstoequalityandagainstdiscriminationhaveviedagainstopponents [xxx] [xxxi] [xxxii] [xxxiii] rightofexpressiveassociation, righttovote, rightagainstharassment, andrightofprivacy. AsI [xxxiv] havearguedelsewhere, ontheLGBTGNCfrontieroftheculturewar,assertionofanequalityrightsometimeseven seemstoprovokethegenerationofacountervailingright,andthisprovocationcandoquiteabitofdamage.
Importantly,thedevoteesofcriticalracetheoryandfeministcriticallegaltheorydidnotdirectlyrefutetheseargumentson theirmerits.Infact,someseemedratherconvincedbythem,occasionallyeveninsinuatingthattheydidnotrequiresuchan elaboratecasetoknowthatthelegalregimethatoppressedthemwasrifewithindeterminacyandroomforabuse.AsRichard Delgadowrote,[w]eknow,fromfrequentandsadexperience,thatthemereannouncementofalegalrightmeans [xxxv] little. Henonethelesslamentedwhatheperceivedasdisregardforthestrategicutilityofrights,observingthat[f]or [xxxvi] minorities...rightsserveasarallyingpointandbringusclosertogether. ElizabethSchneideragreed:[r]ights discoursecanexpresshumanandcommunalvaluesitcanbeawayforindividualstodevelopasenseofselfandforagroup [xxxvii] todevelopacollectiveidentity.
[xxxviii] Othersnoticed,however,thatrightscouldjustaseasilypromptalossofcollectivity. Aftertheachievementof formalequality,whichislikelytoleavethemostdisadvantagedsegmentsofacommunitybehind,itmightbemoredifficult [xxxix] tounifyeveryoneinagroupbehindacommonpoliticalobjective.
Criticsofrightsandcriticsofthecriticswerearguingonslightlydifferentplanes.Contrasttwoarchetypaldisputes:betweena critandadefenderofliberallegalism,theargumentmightsoundlikethis:Rightsareindeterminate.Letmeshowyouinan example.Theliberaldefenderanswers:Butthesystemofadjudicationcanworkfairlyandneutrally.Letmeshowyouhow [xl] Hercules wouldmakeadecision.Betweencritsanddevoteesofcriticalracetheoryorfeministcriticallegaltheorywho areworriedaboutthedemiseofrightsforstrategicreasons,however,theargumentmightsoundmorelikethis:Rightsare
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indeterminate.Letmeshowyouinanexample.Thereplycomesback:Yes,Iknewthatalready,butweneedthemanyway forstrategicpurposes.Dontruinthemorwellhavenothing.Thecommonality,itseemstome,amongthewritersinthe [xli] criticaltraditions,isacceptanceoftheindeterminacythesis. Apointofdisagreementiswhetherademonstrationof indeterminacyinsomedoctrinallocationleavesreformerswithnothingtodo.
B.AnalysisofIdentityandOppression:TheContributionofQueerTheory
[xlii] Anothercritiqueofthecritique ofrightsisthatracismhasbeenatleastassignificantafactorintheperpetuationof inequalityastheindeterminacyoflaw,sothattheabsenceofanaccompanyingrobustanalysisofraceandracismrendersthe critanalytictoolkitincomplete.AsKimberlCrenshawargued,[i]fracismisjustasimportantas...liberallegalideologyin explainingthepersistenceofwhitesupremacy,thentheCLSscholarssinglemindedefforttodeconstructliberallegal [xliii] ideologywillbefutile. Presumably,itwouldbeanalogoustourgethenecessityofananalysisofsexualityandgender, [xliv] andhomophobiaandtransphobia,alongsideanycritiqueofLGBTGNCrights. Queertheoryhasmuchtooffersuchan enterprise.
[xlv] Queertheorycomestousfromthehumanities butithasyieldedanumberofconceptsandcritiquesthatcouldbe [xlvi] [xlvii] [xlviii] valuabletolegalthinkers.WriterssuchasMichelFoucault, JudithButler, JohnDEmilio, andJonathan [xlix] NedKatz haveformulatedrichandsophisticatedconceptionsoftheproductionofidentity,sothatcategoriessuchas menandwomen,gayandstraight,starttoseemhistoricallycontingentratherthannaturallyoccurring,yetdiscursively [l] powerful,formingusassubjectsandshapingourunderstandingofourselvesandourworld.WendyBrown hasdeveloped [li] specificallythenegativeeffectsofdiscursiveentrenchmentofinjuredsubjectivityonpoliticalefficacy.LeoBersani and [lii] LeeEdelman havewrittenofthevalueofecstaticstatesanddisorganization(asopposedtoconsolidatedidentityand [liii] rationality)inconfrontingproblemsofoppression.EveKosofskySedgwick demonstratedhowthoroughlythehetero [liv] [lv] homosexualdichotomystructuresWesternthought,andMichaelWarner andGayleRubin haveexploredthehazards [lvi] ofnormalizationandcriticizedthemoraldevaluationofmarginalizedsexualities.
Itisprobablyanathematoqueertheoriststosumuptheirworkasaset.Ratherthanattempttodoso,Isuggestmerelythat thereisplentywithwhichtoworkifoneseekstoenhancethecritiqueofLGBTGNCrightswithasophisticatedanalysisof sexuality,gender,homophobiaandtransphobia.Queertheoryisthickwithreflectiononthematerialanddiscursive conditionsthathaveproducedidentitiesandsubjectivities,andhavegivenmeaningtosexualactsandgenderperformances. Inmanycasesitprovides,aswell,ideasfordisruptingthisknowledge.
[lvii] Afewlegalwritershaveattemptedtoimportsomeoftheideasassociatedwithqueertheoryintolegalanalysis, andI [lviii] havetriedtodosomyself, butregretfullytheprocessofmigrationhasbeenslowgoingandthewealthofinsight
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availabletolegalthinkershasgoneterriblyunderutilized.Arealbenefitofqueertheoryforthelegalleft,asIseeit,isinmore fullyassessingthecostsoflegalstrategies.Weoughttobeabletothinkthroughthewaysinwhichthelegaldiscoursesin whichweparticipatemightaffecttheongoingproductionofgenderedandsexualizedidentitycategories,orwillcontribute tonormalizingorantisexmoralism.Bringingtheseanalytictoolstobearisnotheadingoffonanintellectualholiday.Tothe contrary,itisnolongerresponsibletobehaveasifwedidnothaveaccesstothemaswedeveloplawreformgoalsand approaches,ortopretendthatourchoiceshavenothingtodowiththeadverseconsequencesthatoccurintheseregisters.
C.TheProblemofLegitimationandBeyond
EveryonewritinginacriticaltraditionwhoseworkIencounteredseemedtoagreethatarguinginthelanguageofrights [lix] servesadangerouslegitimatingfunction. Itisamammothconcessiontothelogicofthelegalregimeanditcarriesthe riskthatafteronesformalrightshavebeenvindicated,remaininginequitieswillseemfair,asiftheyaretheresultofnatural inequalitiesratherthanlegallycreatedones.
SurelypersonsconcernedwithLGBTGNCconstituenciesmustrecognizethisdanger.Imagineafutureinwhichsexual orientationandgenderidentityhavebeenaddedtoeveryantidiscriminationlawintheland,andsamesexmarriagehasbeen constitutionallyrequiredofeveryjurisdiction.Willallofourlegalproblemsbesolved?Willwhatevertroubleremainsbedue toourowninherentoddityormoralinferiority?Whatwillwesaywhenwehaveformalequality,butouryoutharestill disproportionatelyhomeless,infostercare,abusingsubstancesandsuicidal?Whatwillwesaywhenwehaveformalequality, butHIVorsomeasyetunknownsexuallytransmittedsuccessorravagessomesegmentofourcommunity?Whatwillwesay whenwehaveformalequality,butunabletoaffordcrucialgenderaffirminghealthcaretheimpoverishedamongusare stilltakingstreetqualityhormones,injectingsilicone,andsubjectingthemselvestoarrestincludingpoliceandprison violenceafterengaginginsexworkandothercriminalactivitytosurviveandtopayforhealthrelatedneeds?Whatwillwe saywhenwehaveformalequality,butsomehow,subtly,andalwayswithsomeaccompanyingrationale,wefindourselves morevulnerablethanotherstoallegationsofobscenity,sexualimpropriety,orpredation?
Inthecontextofrace,Crenshawmadethecompoundobservationthatwhilerightsargumentationsometimeslegitimatesan oppressivestatusquo,itsimultaneouslygainsanimperativeforjustcausesbybeingadiscoursethatisrecognizedas [lx] legitimate. Demandsforchangethatdonotreflecttheinstitutionallogic...and...reinforcethedominantideology [lxi] willprobablybeineffective. Schneider,discussingwomensrights,madearelatedobservation:[b]yclaimingrights, womenassertedtheirintentiontobetakenseriously....[their]interests,previouslyrelegatedtotheprivatesphere,and [lxii] thereforeoutsidethepublicprotectionoflaw,nowreceivedtheprotectionoftheConstitution. Forblacks,Crenshaw added,thetaskathandistodevisewaystowageideologicalandpoliticalstrugglewhileminimizingthecostsofengaging [lxiii] inaninherentlylegitimatingdiscourse. Thatformulaseemsdesignedtomaximizethebenefitsthatcanbeextracted fromrightswhileminimizingthecostsofrights,whichseemssensibleenoughifoneacceptsthatrightsaretheonlyorbest waytoobtainthebenefits.Idonot.
Moreover,Idonotthinkthatthetermlegitimationcapturestheproblemadequatelyitsoundstoomuchasiffullyformed
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subjectsweredeliveringaneffectonasystemexternaltothemselves.Participationinrightsdiscoursedoesmorethan legitimatetheexistinglegalorder.Italsoeclipsesfromreformersviewpossibilitiesthatlieoutsidetheregimeofrights.The choicetoengageinarightsbasedlegalstrategyisnotasimplequestionofgoodfaithorbadfaith,butofshapingonesfaith. IntheLGBTGNCcontext,particularlythestruggleforformalequality,includingsamesexmarriage,thepersistentdrumbeat ofequalrightshasmadeitdifficulttoconceiveoflawreformgoalsnotinsyncwiththatbeat.Thisisthepowerfuleffectof [lxiv] discourse,asFoucaultinstructeditproducesknowledgeandshapesourdesires. Totakeseriouslyitspower,weshould recognizeitseffectonthosewhoparticipateinittoachievestrategicends.Weshouldnotimaginethatcalculatinglawyers candeployrightsdiscourseinapurelyinstrumentalistmannertoachievelitigationvictories,persuadingcourtswhilethey andtheirconstituenciesremainutterlyunaffected.ItgetsharderandharderforLGBTGNCpeopleandtheirlawyerstotear theirgazeawayfromtheshiningstarofformalequalityaswecallforitagainandagainincourts,atrallies,andthroughnews media.Itisnotimpossible,butittakesadeliberateeffort.
III.Reconstructionvs.Decisionism
Myrecentworkhasbeensuchaneffort.Itendeavorstoidentifyandalsotogeneratelawreformpossibilitiesthatdonot simplymaterializeasselfevidentwithinthetermsofequalitydiscourse.Mygoalhasbeentoshinealightonandarticulate concretetasksthatlawyerscanevaluateandrealisticallyundertakeiftheydeemthemgoodbetsforimprovingthelivesof marginalizedpeopleatacceptablecostlevels.Thissectionwillfurtherdevelopthatmethodology,whichIconceptualizeasa criticalapproachtoagendasetting .Themethodologybeginswithcritique,understoodnotasastrictlynegativeenterprise [lxv] asitsmanydetractorshavecharacterizedit, butasacrucialstepinevaluatingreformistoptions,inwhichindeterminacy [lxvi] [lxvii] andprovocationofcompetingrightsarerecognizedascosts. Iwillassumethatsteptobefamiliar. The methodologypicksupnotwithreconstruction,inthesenseofelaboratinganewmetatheoryofLGBTGNCemancipation, butwithmoreofwhatIhopewillbeaslightlyimproved(butnodoubtimprovable)distributiveanalysis,andwillconcludein adecisionistposture,drivingtowardcommitmenttotangiblelawreformtasksnotbecausetheypromisetotalequalityor emancipationinsomeothermodebutbecausewearewillingtoaccepttheircostsasthepriceofthebenefitsthatwehope theywillbring,eyeswideopentothefactthatwecannotbesure.
SomecriticsofthecritiqueofrightscomplainedthatCLSscholarsareoftenhazyaboutwhatwouldprovideminorities [lxviii] [lxix] comparableprotectionifrightsnolongerexisted, describingtheCLSprogramasUtopia. Someemphasized theneedforasubstitutestrategyofequivalentefficacywhileothersinsistedthatareconstructiveeffortisnecessaryto [lxx] rehabilitatecritiqueandrenderitsomethingmoreworthwhilethanaselfindulgentexerciseintrashing. Whilesome workassociatedwithCLSovertheyearshasstressedcritiqueoverdecision,Ihadnotroubleatalllocatingalternativesto rightsargumentationincriticalwork.Whetherfromthecritsearlydaysorinmorecontemporarywriting,onecandiscerna [lxxi] strongthreadofdistributiveanalysisdesignedtoinformreformistdecisionmaking.
Thiscertainlyqualifiesasastrategy,butisnotthesameasreconstruction,whichisperhapsthecruxoftheproblema problemthatIwouldcharacterizeasoneofrecognition.Thatis,whenaworkevaluatesamodestlegaloptionandattemptsto traceits(positiveandnegative)implicationsthroughoutacomplexdistributivemap,ratherthanofferingatheoretically consistentpushtowardashiningtelosonahill,itmightbehardtorecognizethatasreformist.Itcouldrequiresomeself
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consciousretrainingtorecognizelawreformoptionsthatdonotcomeintheformoffullyreconstructedtheories.Using examplesfromthelatestgenerationofcriticalwork,mygoalhereistomakethemodestcontributionofidentifyingthework asreformistinadistributiveratherthanreconstructivesense.Theexamplesareanendeavortomakedistributiveanalysis recognizableasapositiveundertaking.Critiqueisacomponentofthatanalysis,onethatiswellsuitedtorevealingcertain costsandperilsofconsideredlawreformalternatives.
Critiquedoesntleaveuswithnothing,inthesenseofmakingitimpossibletodecidewhattodo.Thoseofuswhoarenot moralrealists(believersintheobjectivetruthofmoralpropositions)areusedtocommittingourselvestoprojects,and decidingonstrategies,onthebasisofabalancingofconflictingethicalandpracticalconsiderations.Intheend,wemakethe [lxxii] leapintocommitmentoraction....[evenif]wedontbelievewecandemonstratethecorrectnessofourchoices....
ThelastpieceofthisthoughtiscrucialtothemethodologyIamadvocating,becauseitdistinguishesreconstructionfrom decisionism.Reformersmightbeaccustomedtoturningtolegalacademicwritersfortheoreticjustificationthatwillsituatea specificlawreformiteminanaccepted,overarching,philosophicobjectivesuchasequality.Legalthinkersarealsomakinga contribution,however,iftheyhelpreformersspeculateinaninformedfashionaboutthecostsandbenefitsofpossiblereform [lxxiii] strategiesbeforereformersmustmaketheleapintocommitmentoraction.
Forexample,HilaShamirhaswrittenadetailedanalysisoftheeffectsofregulationofthechildcaremarketintheUnited Statesontheallocationofdomesticresponsibilitiesbetweenmenandwomenwithinahouseholdandonthedistributionof [lxxiv] wealthamongfamilies. Shetracestheimpactoffederalchildcaresubsidies,taxcredits,andwelfarerules,combined [lxxv] withothermarketregulatingfactorssuchashightoleranceforemploymentlawviolation intheheavilymigrantchild careworkforce,onthelikelihoodofwomenindifferentclassesparticipatinginthepaideconomyandontheportionofthe [lxxvi] domesticburdentheyarelikelytoshoulderinrelationtomen. Hereisafragmentofhermuchlargeranalysis:tax creditsforchildcarecombinedwithlaxenforcementofimmigrationandlaborlawsenablemiddleandupperincomewomen [lxxvii] tojointhepaidworkforceandprivatizesignificantportionsofdomesticlaboratlowcostsonthesupplyside. Low incomewomen,ontheotherhand,whilebenefitingfromsubsidizedchildcareavailableunderfederalwelfarerules,alsoface timelimitsontheireligibilitywhenconsideredtogetherwiththeconstraintsofatightemploymentmarket,therulespush [lxxviii] suchwomenintofamilyformationswithmen. Theallocationofdomesticlaborbetweenmenandwomeninlow incomehouseholdsdependsonthelocalemploymentmarket:duetothegrowingserviceeconomy,insomeurbansettings [lxxix] womenaremoreemployablethanmen,andmenmaythereforeendupwithgreaterdomesticresponsibility.
ShamircomparedherU.S.findingstotheregulationofthemarketinprivatecarefortheelderlyinIsraelandconducteda similaranalysis,lookingforbothallocationofhouseholdresponsibilitybysexandeffectsbyclassstratumandimmigration [lxxx] status. Theresultagain,madeespeciallyvividbyvirtueofthecomparison,isacomplexmapoftheapparenteffectsof lawsregulatingmarketsonthedistributionofdomesticburdensandwealth.
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Shamirmighthaveusedarightsbasedapproachthatfocusedonwomen,thepoororimmigrantstoaddresshernormative [lxxxi] concerns,whichshestatestobeincreasingwomensequalityanddecreasingclassstratification. Shebypassedthe limitsofthatspeciesofanalysis,however,andprovidedsomethingmuchmorehardnosedandfullofreformistopportunity. Withsomanypotentialtargetsofreformistinterventionsoclearlyandmethodicallyevaluated,itwouldbefollytochargeher withutopianthinking.
Inanotherexample,PrabhaKotiswaranhascarefullyanalyzedthepotentialeffectsofvariousrulesonbargaining endowmentsamongdifferentlysituatedsexworkers,brothels,patrons,landlords,andpolicewithintheeconomyofamajor [lxxxii] redlightdistrictinIndiacalledSonagachi. Kotiswaranbeginsbysettingforththetwopolesatorbetweenwhichmost feministapproachestosexworkappear:
[first,is]asubordinationapproach,whichistypicallyagainstthecommodificationofsex[thosewhoembracethisapproach] viewsexworkasnothingbutcoercionandviolenceandviewsexworkersasvictimswholackagencyandareslavesto institutionalizedviolence.Individualistsorsexworkadvocates[ontheotherhand,]adoptanautonomyapproach,are indifferenttothecommodificationofsex,andtheyunderstandsexworkintermsofchoiceandworkandviewsexworkersas [lxxxiii] agentswhocannegotiatewithininstitutionsasindividuals.
Urgingthatthelatterviewisundertheorized...withtheresultthatitfallsbackonthe
. . . discourse around choice, consent, and other liberal concepts, Kotiswaran undertakes a critical and legal realist project of depicting sex work as a form of work [while] at the same time [remaining] attentive to questions of power. She does this by evaluating the impact of actual and proposed rules on bargaining among different stakeholders in the sex work industry in Sonagachi.
[lxxxv]
[lxxxiv]
Shespeculates,forexample,ontheeffectsthatpartialdecriminalizationofsexworki.e.,criminalizingtheactsofpatrons, brothelkeepers,traffickers,andotherswhomightbenefitfromtheexploitationofsexworkers,butdecriminalizingtheactsof [lxxxvi] [lxxxvii] thesexworkersthemselves mighthaveonbargainingwithintheredlightdistrict. Heranalysis,like Shamirs,iselaborateandintricate.Ionlysamplefromithere.
Forpurposesofspeculation,Kotiswaranexplicitlyassumesthatthepolicewouldenforcethe(proposed)revisedlaw,under [lxxxviii] whichalandlordcouldbecriminallyprosecutedforknowinglyallowingrentedpropertytobeusedasabrothel. If thelandlordleasedaroomtoanindependentsexworkerhowever,thesexworkerspracticewouldlikelynot,accordingto [lxxxix] Indianlaw,fallunderthedefinitionofabrothel. Anothersectionofthelawwouldcriminalizetheleasingofproperty forprostitutionevenwithouttheelementofabrothel,buttheproposeddefinitionofprostitutionwouldrequiresexual [xc] exploitationorabuse, presumablyintendedtotargettraffickerswhileleavingthemereexchangeofsexforfeeoutsideof thecriminallawspurview.Asaresult,Kotiswaransurmises,notonlywouldthesexworkersactsbeexemptfromcriminal
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[xci] liability,butsomightherlandlords,whocouldarguethatthetenantwasnotexploited,butworkingforherself.
Thecriminallawsimpactonthelandlordcouldinturnhaveeffectsonthepositionsofdifferentlysituatedsexworkerstrying torentapartmentsinSonagachi.Landlordswouldbeforced(orperhapsfreed)toevictbrothelsandprostitutesinorderto [xcii] avoidcriminalliability.Onlyindependentsexworkerswouldbeprotectedagainsteviction. Othersexworkers,however, whopreviouslythoughtthattheyhadrelativelysecurehousingatastablerentlevelsecurityforwhichtheyhadpaida [xciii] [xciv] premium wouldbesubjecttoevictionandlossoftheirsecuritypayment. Landlordswouldbeinapositionto renttonewtenantsandcollectnewsecurities,likelyaprohibitivedealforthosewhowouldhavejustbeendispossessedof [xcv] theirlastdeposit. Meanwhile,theimprovedreputationofthedistrictcouldbringinmoreprospectivetenants,causing [xcvi] rentsandsecurityratestoincrease. AsKotiswaranconcludes,[o]nlyindependentselfemployedsexworkerswith [xcvii] securetenancyrightswouldcontinuetoliveanddosexworkinSonagachi.
[xcviii] Kotiswarancouldhaveapproachedtheregulationofsexworkassomanyothershave, asaquestionofwhatdegreeof agencytoaccordtosexworkers,andassessedthepartialdecriminalizationbillbasedsolelyonherideologyregardingsex workerautonomy,butherworkisnotsoabstract.Herinquirydrivesdirectlytosuchmattersastheavailabilityofrental housingandthelossornotofvaluablesecuritypayments.Shetracestheeffectsofpotentialreformistinterventionsoncrucial materialmattersinanefforttohelpreformersassesstheirreformproposalsformuchmorethanideologicalsatisfactoriness. ThequestionisnotmerelyamIfororagainstprostitution?,orevendoesthislawappropriatelycharacterizevillainsand victims?,buthowmightachangeinthecriminallawaffectrentsandothermaterialrealities?
[xcix] Forseveralyears,Ihavebeenworkingwithyetanotherexample, thatofLGBTGNCyouthwhoaredisproportionately [c] likelytobehomelessasaresultofconflictwiththeirparents. Someequalrightsmightbeofusetothem,butthelegal conditionsthathavethegreatestimpactontheirdailyrealitydonotsoundinthatkey.Someoftheselegalconditionsmight notevendirectlyconcerntheirsexualorientationsorgenderidentities.Forexample,homelessyouthface
manyobstaclestoselfsupportandhousing...includingfederalrulesrequiringrunawayandhomelessyouthsheltersto reportthewhereaboutsofyouthtotheircustodianswithinseventytwohours,limitsonyouthcapacitytocontract(e.g .,for rentalhousing),rulesagainstsleepinginparks,laborlawslimitingthehoursandconditionsunderwhichyoungpeoplecan [ci] work,andtheineligibilityofminorstoserveaspayeesfortheirownchildsupport.
TheselegalconditionsarenotuniquetoLGBTGNCyouththeyaffectallhomelessyouth,whatevertheirsexualityorgender identity.Still,byinterveningintheseconditions,lawreformersmightbeabletouselawtoaffecttheconcreterealitylivedby someofthemostmarginalizedamongthesexualityandgenderconstituenciesiftheyarewillingtoforegothegratifications ofidentitybasedreform.
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Ofcourse,everyoneoftheruleslistedabovehasapurpose,anditwouldbefoolhardytorunheadlongintoeradicatingany oneofthemwithoutafullifspeculativeevaluationofthepossibleeffectsofdoingso.Take,forexample,limitsonyouth capacitytocontract.Minorsarenotentirelywithoutcontractualcapacity,buttheyarelimitedbyadoctrinecalledthepower [cii] ofavoidanceordisaffirmance, whichpermitsthemtovoidtheircontractsunilaterallyforanyreasonornoreason. [ciii] Obviously,thisprovidesapowerfuldisincentivetolandlordstorenttothemandtobusinessestoextendthemcredit. Thatlegalconditionisatoughoneforhomelessyouth,whomustfindawaytosubsistindependently,and(combinedwith [civ] otherlegaldisabilities)probablycontributestothehighrateofsurvivalsexinthispopulation. Theimportanceofhaving fullcontractualcapacity,includingtheabilitytobindoneselftoanexpectationofperformance,isgenerallyarightwing [cv] [cvi] position. Thatpositiontypicallydoesnotextendtominors, butitmightbethatfullcapacityisgoodforyouthinthis circumstancebecauseitwouldremoveoneofthebarrierstoobtaininghousing.
Ontheotherhand,thelimitonyouthcapacitywasdesignedtoprotectminorsfromtheirownimmaturejudgmentandfrom [cvii] unscrupulousadultactorswhomighttakeadvantageofthem. Usually,itisaleftwingpositionthatitisbettertoprotect [cviii] weakerpartiesfromthedangersofbargainingautonomy thoughawiderrangeofthinkersprobablyacceptthatposition [cix] whenitcomestominors.Moreover,LGBTGNCyoutharedisproportionatelyrepresentedinthefostercaresystem anda stunninglyhighpercentageofyouthinthatsystemreachtheageofmajoritywiththeircredithistoryalreadydamagedby adults(sometimesbirthfamilymembers,sometimesfosterfamilymembers)whostealtheirnamesandsocialsecuritynumbers [cx] toopenutilityaccountsorcreditcards. Theoretically,theyoutharenotliableforanydebtthataccruedduringtheir minority,butasmanypeopleknowfirsthand,itisnoteasytocorrecterrorsinonescredithistoryorrepairthedamagethat resultsfromidentitytheft,andyoungpeoplejustemergingfromthefostercaresystemareprobablylessequippedtonavigate thatprocessthanmanymiddleclassadultswhohavehadplentyofdifficultydoingso.
Backonthefirsthand,however,ifminorscannotgetcredit,thentheyhavenoopportunitytodevelopagood credithistory, [cxi] either.Thiscoulddisadvantagethemwhentheytrytorentanapartment.
[cxii] Neithercontractualautonomynorprotectionagainstitisanidealsolutionforhomelessyouth,LGBTGNCorotherwise. Distributiveanalysisdoesnotyieldperfectsolutionsanymorethanrightsdo.Itmightbethatthroughcarefuldeliberation, intermediateorpartialsolutionswouldemerge,suchasanexceptiontothepowerofdisaffirmanceforapartmentleases,low capcreditlinesforminors,acceleratedrepairofcredithistoryforeighteenyearolds,aslightloweringoftheageofmajority [cxiii] forcontractpurposes,orrevisitingtheprerequisitesfororeffectsofemancipationunderstatelaw. Ofcourse,italso mightbethatthecontractrulesoughttoremainastheyareandreformersshouldturntochildsupportrules,orelsewhere.In thecourseofrigorousdistributiveanalysis,thelawreformproposalsmustbeconsideredincontext,withasmuchinformation onthetableaspossible.Noonceandforallanswertothequestionshouldminorshavecontractualautonomyforthesakeof theirownwelfare?islikelytoberight,butsomelawreformpossibilitycouldemergeasthebestbettoaddressagiven problem,i.e.,itcould,basedoninformedjudgment,appearlikelytoproducethemostbenefitatatolerablecost.Costs,it bearsrepeating,wouldincludethosediscoveredusingthetoolsofcriticalandqueertheory,suchastheperilsof indeterminacyandanyanticipatedeffectsonLGBTGNCidentity.Then,oncetheweighingisdonejump .The methodologyleavesuswithnonewtheory,butitdoesendwithadecision.
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IV.Conclusion
Criticaltheory(bywhichImeantoincludeallofthemultifariousstrandsdiscussedabove)isnotmerelyaluxuryofthe academythatreallawreformerscannotaffordtoindulge.Tothecontrary,ifputtodeliberateuseinserviceofaredistributive agenda,criticaltheorycanenhanceonescapacitytoparticipateinlawreformresponsiblybylayingbaremoreandmore (perhapsneverall)ofwhatlawreformersoughttowanttoanticipateastheypondertheirnextsteps,especiallywhatcosts [cxiv] mightresultfromtheirwellintendedinitiatives.ThemethodologythatIhavedescribedcannotdoeverything it cannotbringthetriumphofemancipationoveroppression,equalityoverhierarchy,ordignityoverdiscrimination.But throughpatient,attimespainstaking,attentiontothelivesasexperiencedunderlawbythemostmarginalizedamongus, smallvictoriesmightbefound,oneorasmallhandfulatatime.Perhapssomeone,someday,willcomeupwiththemeta theorythatsavesusfromthemixedgovernmentoflawsandmenthatwehave.Untilthatday,however,Iurgereformminded thinkerstogeneratenumerousanddispersedpossibilities,eachtheproductofspecificandlocalconsiderationforitsconcrete, distributiveimpact,readinesstobearthecoststhatmaycome,andacceptanceofthedifficultrealitythatwecannotknowin advancehoweverythingwillturnout.
Professor of Law,
Northeastern University School of Law. My genuine thanks go to the editors of the Harvard Civil Rights-Civil Liberties Law Review for deciding that this topic was worth making the subject of a colloquium, and especially to Victoria Baranetsky for championing the idea. As always, I took wise counsel and indispensible feedback from Janet Halley. Rashmi Dyal-Chand provided comments on an earlier draft as well as her customary intellectual and general camaraderie. Frank Cooper recommended important readings. Duncan Kennedy and Karl Klare did, as well, and pushed my analysis forward. Finally, my deep thanks go to Adrienne Davis and Shannon Minter for lending their great insights to this conversation, both on-line and at the live forum.
[i]
See, e.g., Anthony E. Cook, Beyond Critical Legal Studies: The Reconstructive Theology of Dr. Martin Luther King, Jr., in Critical Race Theory: The Key Writings that Formed the Movement 85, 86 (Kimberl Crenshaw, Neil Gotanda, Gary Peller, Kendall Thomas eds., 1995) (In short, what values and concerns will guide us in this reconstructive moment? The failure to address these important questions constitutes the most significant shortcoming of the CLS [Critical Legal Studies] project); Jose A. Bracamonte, Foreward, Minority Critiques of the Critical Legal Studies Movement, 22 Harv. C.R.-C.L. L. Rev. 297, 298 (1987) (The CLS movement has failed to propound a rhetorical or ideological discourse to replace the rhetoric of rights.).
[ii]
Duncan Kennedy, A Critique of Adjudication (fin de sicle) 359-63 (1997) (hereinafter: A Critique of Adjudication) (discussing opposition to reconstruction and the charge of nihilism).
[iii] [iv]
See id. at 295-96.
See Libby Adler, The Gay Agenda, 16 Mich. J. of Gender & L. 147 (2009) (hereinafter: The Gay Agenda); Libby Adler, T: Appending Transgender Equal Rights to Gay, Lesbian and Bisexual Equal
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Rights, 19 Colum J. Gender & L. 595 (2010) (hereinafter: T).

[v] [vi]
See The Gay Agenda, supra note 4 at 197-216; T, supra note 4 at 612-15.
Carl Schmitt is famously associated with the term due to his valorization of a decisions having been made by the proper authority over the nature of or basis for the decision; this is often linked to his support for National Socialism. See, e.g., Pierre Schlag, Formalism and Realism in Ruins (Mapping the Logics of Collapse), 95 Iowa L. Rev. 195, 221 n. 86 (2009), citing Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty 66 (George Schwab trans., Univ. of Chi. Press 2005). I am not eager to ratify a total absence of basis for a decision, or any suggestion that the mere fact of a legal authority making a decision renders the decision legitimate. To the contrary, my use of the term is meant to urge law reformers to take responsibility for their choices after considering the widest possible array of factors utilitarian as well as normativeand notwithstanding the likelihood that any singular justificatory theory they invoke might not hold up to critique. It is that last piece that recalls Schmitt, but my usage is otherwise distinct..
[vii]
My writing has focused on critique of rights-oriented theories associated with the sexuality and gender margins, and has not critiqued every conceivable theory that could support law reform in that arena. I have not, for example, critiqued an economic analysis of sexuality such as that proposed by Richard Posner. See Richard A. Posner, Sex and Reason (1992). Perhaps some theory out there is or will be the right one. My posture toward theoretic reconstruction is skeptical, however, and part of my idea in this paper is to urge reformers to place less faith in reconstructive theory as the best or only route to reform.
[viii] [ix]
This is not a resentful remonstration, merely an observation.
Some representative works include: Mark Tushnet, An Essay on Rights, 62 Tex. L. Rev. 1363 (1984); Peter Gabel, The Phenomenology of Rights-Consciousness and the Pact of the Withdrawn Selves, 62 Tex L. Rev. 1563 (1984); Frances Olsen, Statutory Rape: A Feminist Critique of Rights Analysis, 63 Tex. L. Rev. 387 (1984); A Critique of Adjudication, supra note 2. Kennedy wrote several pertinent articles in the 1980s, but I rely instead on this retrospective work which recounts and consolidates many of the crucial critique of rights arguments that he and others have made.
[x]
Some representative works include: Cook, supra note 1; Bracamonte, supra note 1; Kimberl Williams Crenshaw, Race Reform and Retrenchment: Transformation and Legitimation in Antidiscrimination Law, in Critical Race Theory: The Key Writings that Formed the Movement 103 (Kimberl Crenshaw, Neil Gotanda, Gary Peller, Kendall Thomas eds., 1995); Richard Delgado, The Ethereal Scholar: Does Critical Legal Studies Have What Minorities Want?, 22 Harv. C.R.-CL. L. Rev. 301 (1987); Patricia J. Williams, The Alchemy of Race and Rights (1991).
[xi]
Some representative works include: Elizabeth M. Schneider, The Dialectic of Rights and Politics: Perspectives from the Womens Movement, 61 N.Y.U. L. Rev. 589 (1986); Martha Minow, Interpreting Rights: An Essay for Robert Cover, 96 Yale L.J. 1860 (1987). Olsen, supra note 9, should also be placed among the fem crits, as she is a self-identified feminist, but I included her in the earlier note listing crits because I read her to be staunchly aligned with the critique of rights side of the debate rather than with the side that is worried about the demise of rights for feminist purposes.
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[xii]
This, of course, is not to say that none of the individual participants in the debate were gay-identified or interested in anything of relevance to LGBT-GNC constituencies, just that I discerned no collection of writers with a self-identified gay perspective or with the cohesiveness of the race crits or fem crits.
[xiii]
Individual exceptions can be found. See, e.g., Peter M. Cicchino et al., Sex, Lies and Civil Rights: A Critical History of the Massachusetts Gay Civil Rights Bill, 26 Harv. C.R.-C.L. L. Rev. 549, 617-26 (1991). I would not place this article quite in league with those of the race crits or the fem crits, in the sense that it was not entirely dedicated to discussing the critique of rights, did not generate or participate in a discrete genre, and while borrowing and applying it, did not advance or critique the critique. Still, a significant portion of the article engages with the critique of rights emanating from CLS and notes its utility for understanding the Massachusetts gay civil rights law, using the example of the conflict of rights between gay tenants and anti-gay landlords who do not wish to rent to them. Among the articles conclusions is that reformers who succeeded in getting the law enacted fell prey to the perils identified by the crits because they were too easily satisfied with immunity (a.k.a. negative) rights and did not do enough to make the case that homosexuality was good. Other individual exceptions include Janet E. Halley, Reasoning About Sodomy: Act and Identity In and After Bowers v. Hardwick, 79 Va. L. Rev. 1721 (1993) and Kendall Thomas, Beyond the Privacy Principle, 92 Colum. L. Rev. 1431 (1992).
[xiv]
See, e.g., William N. Eskridge, Jr., The Ideological Structure of the Same-Sex Marriage Debate (And Some Postmodern Arguments for Same-Sex Marriage), in Legal Recognition of Same-Sex Partneships: A Study of National, European and International Law 113 (Robert Wintemute & Mads Andens eds., 2001); William N. Eskridge, Jr., A History of Same-Sex Marriage, 79 Va. L. Rev. 1419, 1486-93 (1993).
[xv]
William N. Eskridge, Jr., Gaylaw: Challenging the Apartheid of the Closet 100 (1999) (Contrary to its critics, rights discourse with all its fuzzy edges tangibly worked to the benefit of the most despised minority in America, at least by empowering gays in their interactions with antigay police, censors, and state employers. Indeed, rights created for the benefit of blacks and the poor may have benefited white middleclass gay people more than they actually helped blacks and poor people.) Strangely, Eskridge does not seem to take this latter observation as a good reason to critique rights.
[xvi]
William N. Eskridge, Jr., Some Effects of Identity-Based Social Movements on Constitutional Law in the Twentieth Century, 100 Mich. L. Rev. 2062, 2370-72 (2002).
[xvii]
Suzanne B. Goldberg, On Making Anti-Essentialist and Social Constructionist Arguments in Court, 81 Or. L. Rev. 629 (2002).
[xviii]
Paisley Currah, Politics, Practices, Publics: Identity and Queer Rights, in Playing With Fire: Queer Politics, Queer Theories 231, 233 (Shane Phelan ed., 1997). Two other contributors to this colloquium, Shannon Minter and Aziza Ahmed, were kind enough to recommend Paisley Currah, Transgender Rights Imaginary, in Feminist and Queer Legal Theory: Intimate Encounters, Uncomfortable Conversations 245 (Martha Albertson Fineman, Jack E. Jackson & Adam P. Romero eds., 2009). In this essay, Currah embraces and analogizes to arguments made by some of the race crits, and notes that those arguments came in response to critiques made by the crits, but does not engage the crits work directly.
[xix]
This is not to say that no one engaged in the debate ever mentioned gay rights. See, e.g., Gabel, supra
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note 9, at 1578.
[xx] [xxi] [xxii] [xxiii] [xxiv]
531 U.S. 98 (2000). 130 S.Ct. 3020 (2010). 130 S.Ct. 876 (2010). Lochner v. New York, 198 U.S. 45 (1905).
This is not meant as a comprehensive survey; for that an interested reader ought to turn to the original sources. My account is purposive and skips over fine distinctions among the thinkers as well as over arguments that I deemed irrelevant to my purposes.
[xxv]
See, e.g., Mark Kelman, A Guide to Critical Legal Studies 258-62 (1987). The critique of rights spans well beyond constitutionalism, anti-discrimination and equality rights, but I focus this section on that cluster.
[xxvi] [xxvii]
Tushnet, supra note 9, at 1364-71.
Id. at 1382-84. Tushnet says more, especially about alienation, but I have not covered the whole argument.
[xxviii]
See Crenshaw, supra note 10 at 105 (discussing the expansive view and the restrictive view of equality).
[xxix] [xxx]
See Olsen, supra note 9, at 387.
See Boy Scouts of American v. Dale, 530 U.S. 640 (2000) (holding that the Boy Scouts may exclude gay scout master as an exercise of First Amendment right).
[xxxi]
See Largess v. Supreme Judicial Court of Mass., 373 F.3d 219 (1st Cir. 2004), cert. denied, 543 U.S. 1002 (2004) (unsuccessfully challenging state same-sex marriage decision as a violation of the federal Guarantee Clause).
[xxxii]
See Cruzan v. Special Sch. Dist. #1, 294 F.3d 981, 983-84 (8th Cir. 2002) (a teacher unsuccessfully alleged hostile work environment against her employer school district based on a trans womans use of the womens restroom).
[xxxiii]
See Aaron Belkin & Melissa S. Ember-Herbert, A Modest Proposal: Privacy as a Rationale for Excluding Gays and Lesbians from the U.S. Military, 27 Intl Security 2 (2002).
[xxxiv]
See The Gay Agenda, supra note 4 at 175-79 and T, supra note 4 at 600-06.
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[xxxv] [xxxvi]
Delgado, supra note 10, at 304. Id. at 305.
[xxxvii]
Schneider, supra note 11, at 590-91, 611-12 (Schneider continued, [r]ights discourse can also have a dimension that emphasizes the interdependence of autonomy and community. It can play an important role in giving individuals a sense of self-definition, in connecting the individual to a larger group and community, and in defining the goals of a political struggle, particularly during the early development of a social movement). See also Minow, supra note 11, at 1873 (using the secondary school disciplinary process as an example of rights reconfirm[ing] community.).
[xxxviii] [xxxix]
See Crenshaw, supra note 10, at 117-118.
See id. See also Gabel, supra note 9, at 1566-81 (arguing that rights contribute to alienation rather than authentic connection).
[xl] [xli]
See Ronald Dworkin, Laws Empire 238-241 (1986).
I have papered over a bit here to sharpen a point. Tushnet, for example, addresses the utility argument head-on, arguing that not only are rights indeterminate, they are also not useful and in fact harmful. See Tushnet, supra note 9, at 1384-94.
[xlii] [xliii]
Crenshaw, supra note 10, at 110.
Id. See also Delgado, supra note 10 at 314 (To date, Crits have not articulated a psychological or political theory of the origin of racism or of how it could be eradicated.). Cf. id. at 316-320 (discussing theories of race and racism and urging these analyses on CLS). There is a related, but not identical, argument in the race-crit literature that the differing capacities to appreciate the importance of rights are rooted in the differential experiences of legal thinkers of different races, which position people differently with regard to awareness of unconscious racism. See, e.g., Patricia J. Williams, The Pain of Word Bondage, in The Alchemy of Race and Rights 146, 152 (1991). I have not taken up this argument. Cf. Schneider, supra note 11 at 648 (The legal formulation of [womens] rights grew out of and reflected feminist experience and vision.).
[xliv]
This is not to neglect the pertinence of race to sexuality and gender. As Kimberl Crenshaw is perhaps best known for explaining, intersecting analyses are often useful. See Mapping the Margins: Intersectionality, Identity Politics, and Violence Against Women of Color, 43 Stan. L. Rev. 1241 (1991). See also Patricia Hill Collins, Black Sexual Politics: African Americans, Gender, and the New Racism (2005). The post-colonial literature, too, is rich with intersecting analyses, broadly understood to mean analyses that account for both race (or ethnicity or nationality) and gender, but might take a postmodern/anti-coherentist approach to either or both. See, e.g., Gayatri Chakravorty Spivak, Can the Subaltern Speak?, in Marxism and the interpretation of Culture 271 (Cary Nelson & Larry Grossberg, eds., University of Illinois Press 1988).
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[xlv]
See Janet Halley, Split Decisions: How and Why to Take a Break from Feminism 107-279 (2006), for a genealogy.
[xlvi]
See Michel Foucault, The History of Sexuality: An Introduction (Robert Hurley trans., 1978) [hereinafter: Foucault, Vol. I]; Michel Foucault, Discipline and Punish: The Birth of the Prison (Alan Sheridan trans., Vintage Books 2d ed. 1995) (1978).
[xlvii] [xlviii]
See Judith Butler, Gender Trouble: Feminism and the Subversion of Identity (1990).
See John DEmilio, Capitalism and Gay Identity, in Making Trouble: Essays on Gay History, Politics and the University 3 (1992).
[xlix] [l] [li]
See Jonathan Ned Katz, The Invention of Heterosexuality (1995).
See Wendy Brown, States of Injury: Power and Freedom in Late Modernity (1995).
See Leo Bersani, Is the Rectum a Grave?, in AIDS: Cultural Analysis, Cultural Activism 197 (Douglas Crimp ed., 1987).
[lii] [liii] [liv] [lv]
See Lee Edelman, No Future: Queer Theory and the Death Drive (2004). See Eve Kosofsky Sedgwick, Epistemology of the Closet (1990). See Michael Warner, The Trouble with Normal: Sex, Politics and the Ethics of Queer Life (1999).
See Gayle Rubin, Thinking Sex: Note for a Radical Theory of the Politics of Sexuality, in Pleasure and Danger: Exploring Female Sexuality 267 (Carole S. Vance ed., 1984).
[lvi]
This is nothing near an exhaustive list, but merely a sample of writers and concepts that have been useful to me. Queer theory has become voluminous, and much of it, while fascinating, I have notas a lawyerquite figured how (or whether) to use yet. See, e.g., Judith Halberstam, In a Queer Time & Place (2005).
[lvii]
See, e.g., Bernard E. Harcourt, Forward: You are Entering a Gay and Lesbian Free Zone: On the Radical Dissents of Justice Scalia and Other (Post-) Queers, [Raising Questions About Lawrence, Sex Wars, and the Criminal Law], 94 J. Crim. L. & Criminology 503 (2004); Dean Spade, Documenting Gender, 59 Hastings L.J. 731 (2008); Katherine M. Franke, Putting Sex to Work, in Left Legalism/Left Critique 290 (Wendy Brown & Janet Halley eds. 2002); Ian Halley, Queer Theory By Men, 11 Duke J. Gender L. & Poly 7 (2004).
[lviii] [lix]
See, e.g., The Gay Agenda, supra note 4 at 161-72, 179-97.
See, e.g., A Critique of Adjudication, supra note 2 at 236-63, and Crenshaw, supra note 10 at 112.
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[lx]
See Crenshaw, supra note 10 at 111 (People can demand change only in ways that reflect the logic of the institutions they are challenging.).
[lxi] [lxii] [lxiii] [lxiv] [lxv]
Id. Schneider, supra note 11 at 625-26. Crenshaw, supra note 10 at 119. See Foucault, Vol. I, supra note 46 at 92-102.
See, e.g., Louis B. Schwartz, With Gun and Camera Through Darkest CLS-Land, 36 Stan. L. Rev. 413, 422-23 (1984) (The [CLS] movement is utopian and theoretical. Its expositors decline to offer or consider particular programs. They are jurisprudes in search of the ultimate insight that will explain the harsh world. CLS writers have not yet found that insight, but they believe devoutly that their exposure of the incoherence and contradictions of liberal philosophy will cause a new correct thinking to cohere and grow.).
[lxvi]
While I have not stressed the point in this paper, I have noted in the past and note again here, that a rights-based strategy might sometimes look like the best course of action. Critique is still crucial to anticipating its hazards, but I do not foreclose the possibility that a rights argument might sometimes be worth the anticipated costs. What should be crystal clear, however, is that rights are not the only option for advancing the interests of persons on the sexuality or gender margins. Inability to think of anything other than equal rights as a strategy should not be the reason for pursuing an equal rights strategy. See The Gay Agenda, supra note 4 at 216.
[lxvii]
If not, see The Gay Agenda and T, supra note 4, for examples in the domain of sexuality and gender or see supra note 9 for a more general selection.
[lxviii]
Delgado, supra note 10 at 305. See also Crenshaw, supra note 10 at 111 (lamenting that no strategy for supplanting rights has yet been articulated).
[lxix] [lxx]
Delgado, supra note 10 at 305.
See supra note 1. See also A Critique of Adjudication, supra note 2 at 360 and Crenshaw, supra note 10 at 111 on trashing. In Richard Michael Fischl, The Question That Killed Critical Legal Studies, 17 Law & Soc. Inquiry 779 (1992) (book review), Fischl defends the refusal of adherents of critical legal studies to offer an alternative program to the rule of law. I do not believe that I am contravening Fischl here. That is, I do not imagine myself to have offered anything as grand as an alternative to the rule of law that somehow levitates above all of the contradictions and indeterminacies that critique reveals. The pitch here is much more modest. It is a recasting of critique as a tool for assessing the costs of a broad array of strategies, each of which will be imperfectin part because it would occur in the context of the system we have.
[lxxi]
See, e.g., from the early days, Olsen, supra note 9 at 406-12 (assessing the costs and benefits of several
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proposals to regulate statutory rape); Karl E. Klare, Workplace Democracy and Market Reconstruction: An Agenda for Legal Reform, 38 Cath. U. L. Rev. 1 (1989) (offering short and long-term proposals for the reform of labor law in pursuit of a more democratic work place); Duncan Kennedy, A Cultural Pluralist Case for Affirmative Action in Legal Academia, 1990 Duke L.J. 705 (1990) (making a critical, post-modern argument in favor of radically expanding affirmative action specifically in law schools because they are political institutions that wield significant power); and more recently, Prabha Kotiswaran, Born Unto BrothelsToward a Legal Ethnography of Sex Work in an Indian Red-Light Area, 33 Law & Soc. Inquiry 579 (2008) (assessing the potential distributive effects on sex workers and others of various interventions in the criminal law and political economy in Sonagachi, a large red-light district in India); Hila Shamir, The State of Care: Rethinking the Distributive Effects of Familial Care Policies In Liberal Welfare States, 58 Am. J. Comp. L. 953 (2010) (assessing the potential distributive effects on care workers in the United States and Israel of various possible interventions in the political economies of those countries); Janet Halley et al., From the International to the Local in Feminist Legal Responses to Rape, Prostitution/Sex Work, and Sex Trafficking: Four Studies in Contemporary Governance Feminism, 29 Harv. J.L. & Gender 335 (2006) (evaluating several feminist reforms using distributive analyses).
[lxxii] [lxxiii] [lxxiv] [lxxv] [lxxvi] [lxxvii] [lxxviii] [lxxix] [lxxx] [lxxxi] [lxxxii] [lxxxiii] [lxxxiv] [lxxxv]
A Critique of Adjudication, supra note 2 at 361-62. Id. See Shamir, supra note 71. Id. at 969. Id. at 962-77. Id. at 969-70. See id. at 967-68.
Id. at 974. See id. at 977-984. Id. at 984. See Kotiswaran, supra note 71. Id. at 581. Id. Id. at 582.
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[lxxxvi]
The Indian government was deliberating on a partial decriminalization bill at the time of her writing, but the analysis is also useful because partial decriminalization has been emerging as a consensus position among many feminists who, despite their many differences, are almost unanimously against complete criminalization, but are at the same time ambivalent about both legalization and complete decriminalization, which some feminists perceive as legitimizing the inequalities of the sex industry. Id. at 617.
[lxxxvii]
Kotiswaran conducted an elaborate ethnographic study in Sonagachi, located in West Bengal, from which she learned about the complex economy of the district and its differently situated economic actors. See id. at 580.
[lxxxviii] [lxxxix] [xc] [xci] [xcii] [xciii]
See id. at 618-19.
See id. at 619.
See id. See id. See id. at 620.
This right to rent, called selami, is the most secure among three different kinds of tenancies in Sonagachi. Id. at 595. The article lays out species of tenancy in detail. See id. at 595-606.
[xciv] [xcv] [xcvi] [xcvii] [xcviii] [xcix]
See id. at 620. See id. See id. Id. See, e.g., Kathleen Barry, The Prostitution of Sexuality 57-58 (1995).
For still more examples, especially concerning LGBT-GNC people, women, and sex workers, see The Gay Agenda supra note 4, at 202-16 and T, supra note 4 at 612-13.
[c]
See Natl Ctr. for Lesbian Rights, et al., National Recommended Best Practices for Serving LGBT Homeless Youth (2009), available at http://www.nclrights.org/site/DocServer/national-recommended-bestpractices-for-lgbt-homeless-yo.pdf?docID=5821.
[ci]
T, supra note 4 at 612-13.
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[cii] [ciii] [civ] [cv]
See 7-27 Corbin on Contracts 27.2 (LEXSTAT 2010). See id. See Natl Ctr. for Lesbian Rights et al., supra note 100.
See Duncan Kennedy, Distributive and Paternalistic Motives in Contract and Tort Law, With Special Reference to Compulsory Terms and Unequal Bargaining Power, 42 Md. L. Rev. 563, 633 (1982).
[cvi]
One who embraces the position that it is generally good for people to be able to bind themselves to a contract probably would want to ensure that contract is not deprived of its key rationalevoluntarinessby being exercised by incompetent persons. See id. at 569-70.
[cvii] [cviii] [cix]
See id. at 569. See id. at 620.
See Lamda Legal Def. and Educ. Fund, Youth in the Margins: A Report on the Unmet Needs of Lesbian, Gay, Bisexual, and Transgender Adolescents in Foster Care, 11 (2001), available at http://data.lambdalegal.org/pdf/28.pdf.
[cx]
See Jesse Ellison, Sabotaged by the System, Newsweek, Feb. 7, 2009, available at http://www.newsweek.com/2009/02/06/sabotaged-by-the-system.html#.
[cxi] [cxii]
See id.
Cf. Klare, supra note 71, at 24-25 (Demonstrating in the labor law context that the abstract ethic of antipaternalism and contractual liberty, to the extent that it has philosophical content, or is linked to . . . human fulfillment and self-determination, [raises] very complex and problematic empirical difficulties in showing that particular rules actually serve such ideals. Klare points to a need for contextualized inquiry.).
[cxiii]
A similar analysis could be done regarding child labor laws. Obviously, compulsory schooling and limits on the hours during and conditions under which children can work were established for some pretty sound reasons. For homeless youth, however, those sensible policies do nothing to eradicate the need to earn money, so their effect is to push the youth toward sex work and other survival activity. One hardly wants to return to the days of child labor, of course, and a significant relaxation of child labor laws could increase school drop-out rates and cause wages to drop. Cautious weighing of possible costs and benefits of small-scale alternatives, however, could yield something helpful to LGBT-GNC youth, something that helps them subsist and makes not engaging in sex work a realistic choice.
[cxiv]
One writer is critical of what he perceives as a CLS tendency to reject piecemeal reform. See Delgado, supra note 10, at 307. Without speaking for anyone whom he might accurately be describing, I hope it is
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clear by this point in the paper that I have not taken any cues from any such work and my own deployment of some of these critical tools does not lead in any such direction.
Author
Libby Adler Professor of Law, Northeastern University School of Law. My genuine thanks go to the editors of the Harvard Civil Rights-Civil Liberties Law Review for deciding that this topic was worth making the subject of a colloquium, and especially to Victoria Baranetsky for championing the idea. As always, I took wise counsel and indispensible feedback from Janet Halley. Rashmi Dyal-Chand provided comments on an earlier draft as well as her customary intellectual and general camaraderie. Frank Cooper recommended important readings. Duncan Kennedy and Karl Klare did, as well, and pushed my analysis forward. Finally, my deep thanks go to Adrienne Davis and Shannon Minter for lending their great insights to this conversation, both on-line and at the live forum.
Responses
Aziza Ahmed Assistant Professor of Law at Northeastern University School of Law.
TheValueofCritiqueandDistributiveAnalysistoAddressingtheNeedsofSexWorkersintheContextofHIV:A ResponsetoLibbyAdlersGayRightsandLefts AzizaAhmed 1.Introduction InProfessorLibbyAdlersarticleGayRightsandLefts:RightsCritiqueandDistributiveAnalysisforRealLawReform,she highlightstheneedtobringcriticaltoolstobearonlegalreformstrategies.AccordingtoAdler: Decisionism...consistsofmakingdifficultchoicesaboutwhichlawreforminitiativestoundertakebasedonbroadly informeddistributionalhypothesisandcostbenefitcalculationsandthenactingonthebestinformationonecangetwiththe [ii] bestjudgmentonecanmuster,alwayspreparedtobearthecostofoneschoices. [i]
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InmybriefresponseIwillfocusontheimportanceofAdlersinsightsinthecontextofHIV.InparticularIwillconsiderthe graveconsequencesresultingfrom1)refusingtoengageinacostbenefitanalysis,and2)developingalegalreformstrategy thatdoesnotminimizeidentifiablecosts.Whileitisnotpossibleintheshortspaceofferedheretoconductacomprehensive distributionalanalysisandconstructalegalreformstrategybasedonAdlersideaofdecisionism,Iprovideaglimpseofwhat isaccomplishedbyanalyzingcostsandhowawayforwardforsexworkandHIVmightlookwhenoneengagesin decisionism. [iii] ToaccomplishthisgoalIexaminethelegalreformagendaofabolitionistfeminists whoseektoendprostitution
throughanadvocacyagendathatplacesalimitationonU.S.fundingforHIV/AIDSprogramsknownasthe antiprostitutionpledge.
II.Background TheAntiProstitutionPledge In2003,PresidentGeorgeW.BushannouncedthattheUnitedStateswouldcommitfifteenbilliondollarstoaddressthe GlobalHIV/AIDSepidemic.Soonafter,theU.S.LeadershipAgainstHIV/AIDS,Tuberculosis,andMalariaAct(PEPFAR) wasenacted,makingtheUnitedStatesthelargestgovernmentdonortoHIVandAIDSpreventionglobally.PEPFARcontains withinitalimitationonhowfundsmightbespentknownastheantiprostitutionpledge.Thispledgestatesthatno [v] PEPFARfundscanbeutilizedtopromoteoradvocatethelegalizationorpracticeofprostitutionorsextrafficking. The [iv]
antiprostitutionpledgelanguageinPEPFARisseenasavictoryforabolitionistfeministswhoworkin coalitionwithconservativeandreligiousorganizationstoensurethatnoU.S.moneygoestowardprograms thatworkwithsexworkers(withoutarescuecomponent).Thishasincludedprogramsthathavehad provenpositiveeffectforthehealthofsexworkers. Theprimaryconcernoftheabolitionistfeminist legalreformagendaisendingprostitutionaninstitutionunderstoodtobecentralintheongoingoppression ofwomenandgirls.

FeministTheorizingonSexWork PrabhaKotiswaranoffersasummaryoftheoppositionalframeworksthatunderpinthefeministlegalreformprojectsonsex [viii] work. Theabolitionistfeministpositionemanatesfromthesubordinationfeministunderstandingthat [ix] [vii] [vi]
womendonothaveagencyinsexworkrather,sexworkisaproductofcoercionandviolence. AccordingtoKotiswaran,theoppositionalpositionadvocatesforsexworkerindividualismand autonomyhesuggeststhispositionisundertheorizedandthatitdoesnotadequatelyexamineissuesof
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powerinsexmarkets.Trappedintheboundsoftheliberallegalregime,theseoppositionalpositionsoften focusoncriminallaw,eithercriminalizingordecriminalizingsexwork,astheprimaryvehiclefor accomplishingtheirobjectives. Kotiswaranarguesthatitisnecessarytoshiftoneslensawayfrom criminallawandconsiderinsteadlocallevellawsthatoperateinsexmarkets.Inthiswayweareableto seehowchangesinsmallrulesalterarangeofbargainingendowments.Thisunderstandingmaythenhelp illuminatewhatanewlegalreformprojectmightlookandhowanewfeministvocabularyonsexwork mightsound. ApplyingAdlersmethodofassessingcostsandengagingindecisionism,wealsosee howtoovercometheblindnesscreatedbytheideologiesanimatingthesevariouspositionsonsexwork howtomovetowardsamorecarefullegalreformagenda.
III.AssessingtheCosts [xi] [x]
tobehave asthoughwedonothaveaccesstotheanalyticaltoolsnecessarytounderstandtheconsequencesofour legalstrategy.Theanalyticaltoolsofferedbydecisionismcanhelpusdevelopacriticallegalreformproject thatminimizesnegativeconsequences.HereIseektodetermineafewofthecostsofsuccessfullyenacting theantiprostitutionpledgeinthecontextofHIV.Assessingthecostsandconsequencesoftheanti prostitutionpledgemakesitapparentthattheabolitionistfeministresponseisnegativelyimpactingwomens health.Ifabolitionistfeministsengagedinacostanalysisacomplicatedarrayofnegativeconsequences

Adlersmethodtellsusthatacostbenefitanalysisisnotonlynecessarybutthatitisnolongerresponsible
[xii]
emerge.Ihighlighttwoofthesecosts:
[xiii]
First,theantiprostitutionpledgehasincreasedfundingfororganizationswhoseektoraidbrothelsandrescuewomenand girls.Inordertocarryoutthismissionorganizationsrelyonthestate,andinparticularthepolice,whoareoftenimplicated [xiv] inviolenceagainstsexworkers. Inturn,usingstateagents,includingthepolice,torescuewomeninto
governmentcustodyhasresultedinphysicalviolence,mistreatment,andlackofaccesstohealthcareoncein statecustody.
Second,programsthatinvestinsexworkersaspartoftheHIVresponsehavebeeninstrumentalinslowingthespreadofHIV. TheUnitedNationsJointProgrammeonHIV/AIDShashighlightedmanyoftheseprogramsasemployingbestpractices. Theantiprostitutionpledgerequirementresultsinthedefundingofsuchinitiativesandinturnunderminestheabilityof organizationstorespondtotheneedsofsexworkers.Thisislargelybecausetheconflationoftraffickingandsexworkhas meantthatprogramsservingsexworkers,includinghealthserviceprovidersandhealthorienteddropincenters,areconstrued tobeinvolvedintraffickingwomen.Manysuchstorieshaveemergedintheaftermathoftheantiprostitutionpledge includingtheclosureofsexworkerprogramsinCambodiaandBangladesh.Severaloftheseprogramswereshutasaresultof directattacksbyabolitionistfeministsontheprogramsdespitethefactthattheprogramsweretheonlyinexistencethat [xvi] adequatelyservedtheneedsofsexworkersandothervulnerablepopulations. Theclosureoftheseprogramshas [xvii] [xv]
resultedinlackofaccesstoeducation,care,supportservices,andmedication.Thecostsaregrave.
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IV.Decisionism Adlerofferscriticalanalyticalmethodsasawaytoescapeideologyandmovetowardsareallegalreformproject.Sheoffers decisionismasawayofestablishingasetoftangiblelawreformtasksthatbuildsonanassessmentofthecostsofthestrategy. Appliedtotheantiprostitutionpledge,alegalreformvictoryforsome,itbecomesclearthatifthegoalistomakewomens liveshealthierandsaferthecostsmayoutweighanyperceivedbenefitofsuchapledge.UtilizingAdlersmethodbringsthe activismtomaintaintheantiprostitutionpledgeinfocus:ifoneistrulyconcernedaboutthevulnerabilityofsexworkersto violenceitmaynotbetheantiprostitutionpledgethatwillaccomplishthisgoal.Insteaditbecomesnecessarytoshift towardsanexaminationofthesmallrulesthatalterthebargainingendowmentsofsexworkers.Ifthegoalistomakesex workerslessvulnerabletocontractingHIV,adecisionistposturemightilluminatearangeofdifferentlegalreformoptions (someofwhichreflectthecurrentworkofsexworkernetworksandharmreductionorganizations).Theseincludeworkingto eliminateprostitutionfreezonesthatfacilitatethearrestandharassmentofsexworkersendingtheuseofcondomsas evidenceofsexwork(thispracticedisincentivizecarryingcondoms)andutilizingsexworkernetworkstodocumentpolice [xviii] andclientviolenceagainstsexworkersandassistincondomdistribution. Theseeffortsmoveawayfromthe
ideologicalabolitionistpositionofsavingwomenandinsteadlooktochangethebargainingrelationships thatemergefromsmallerrulesmakingsexworksafer.
V.Conclusion Adlerstressesunderstandingcostsandcreatingalegalreformagendathatrecognizesandminimizesthem.Theassessment aboveshowsusthatitisnecessarytotakeAdlersdecisionistposturetoalegalreformagendapertainingtosexworkinthe contextofHIVinordertominimizevulnerabilitytoHIV.Theuseofcriticaltoolshasnotledtonihilismasarguedbysome. [xx] [xix]
Muchtothecontrary,inthecaseofthisanalysis,critiqueenrichesourabilitytomoveamoreconcrete legalreformprojectandtowardshealthierlives.
.
[i]
AssistantProfessorofLawatNortheasternUniversitySchoolofLaw.
[ii]
LibbyAdler, GayRightsandLefts:RightsCritiqueandDistributiveAnalysisforRealLawReform,46Harv.C.R.C.L.L.Rev.Amicus__,1,2(2011),
availableathttp://harvardcrcl.org/wpcontent/uploads/2011/02/Libby_Adler_Gay_Rights_And_Lefts.pdf.
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[iii] Foranindepthexaminationoftheroleoffeministsindebatesonsexworkandtrafficking,seeJanetHalley,PrabhaKotiswaran,HilaShamir&ChantalThomas, FromtheInternationaltotheLocalinFeministLegalResponsestoRape,Prostitution/SexWork,andSexTrafficking:FourStudiesinContemporaryGovernance Feminism,29Harv.J.L.&Gender335(2006),andJanieA.Chuang, RescuingTraffickingfromIdeologicalCapture:ProstitutionReformandAntiTraffickingLaw andPolicy,158U.Pa.L.Rev.1655(2010). [iv] Foralongeranalysisontheroleoffeministsinsupportingtheantiprostitutionpledge,seeAzizaAhmed, Feminism,SexWork,PowerandHIV/AIDS: ConsequencesforWomensHealth,34Harv.J.L.&Gender226(2011). [v] UnitedStatesLeadershipAgainstHIV/AIDS,Tuberculosis,andMalariaActof2003,Pub.L.No.10825,117Stat.711(2003)(currentversionat22U.S.C.A. 7601etseq(West2010)). [vi] JanieA.Chuang, RescuingTraffickingfromIdeologicalCapture:ProstitutionReformandAntiTraffickingLawandPolicy,158U.Pa.L.Rev.1655,166469 (2010). [vii] Halley, supranote3,at339340.Chuang, supra note6.at166469.Forexamplesofdominancefeministwritingonpornographyandsexwork,seeKathleen Barry,FemaleSexualSlavery913(1979)AndreaDworkin&CatharineMackinnon,Pornography&CivilRights:ANewDayforWomensEquality2425(1988). [viii] PrabhaKotiswaran, BornuntoBrothelsTowardaLegalEthnographyofSexWorkinan IndianRedLightArea,33Law&Soc.Inquiry579,581(2008). [ix] Id.at 581. [x] Adler, supranote2,at14Kotiswaran, supra note8,at581. [xi] Adler, supranote2,at15. [xii] Id. at8. [xiii] WhileIhighlightherethecostsofonelegalreformstrategyIamnotsuggestingthatotherlegalreformsarewithoutcosts. [xiv] SeeCherylOvers,AsiaPacificNetworkofSexWorkers,CaughtBetweentheTigerandtheCrocodile:TheCampaigntoSuppressHumanTraffickingandSexual ExploitationinCambodia(Draft)7(2009), availableat www.aidslex.org/site_documents/SX0046E.pdfElizabethBernstein, TheSexualPoliticsoftheNew Abolitionism,18differences:J.FeministCulturalStud.128,132(2007). [xv] Overs, supra note14,at7. [xvi] JoannaBusza, HavingtheRugPulledfromUnderYourFeet:OneProjectsExperienceoftheUSPolicyReversalonSexWork,21HealthPolyPlan329,33031 (2006). [xvii] Earlierinsightsontheoperationofpowerinsexworkingcommunitiesareinstructiveinseeinghowthisisnotthecase.Infact,punishingorcriminalizinga behaviorsimplyshiftsthebalanceofpower(notalwaysinwaysthatwillbenefitthesexworker)withoutnecessarilyendingthetargetedbehavior. SeeHalleyetal., supra note3,at337(Wetakeitasagiven,foradistributivelyfocusedlegalanalysis,thatpunishingconductasacrimedoesnotstoporendit,asgovernance feminists(GFeminists)sometimesseemtoimagine.Rather,itenablesawiderangeofspecificinstitutionalactorstodoawiderangeofthings.). [xviii] MeenaMenon, INDIAAIDS:AnNGOGetsSexWorkerstoEnforceCondomUse,availableat http://www.aegis.org/news/ips/1997/IP970806.html(last
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visitedFebruary23,2011)GlobalNetworkofSexWorkProjects,MakingSexWorkSafe,availableat http://www.nswp.org/makesexsafe/(lastvisited February23,2011)[hereinafterNSWP]. [xix] NSWP,supranote18. [xx] Foradescriptionofthecritiqueofcriticaltheorysuggestingthatthelatterleadstonihilism,seeAdler, supranote2,at4.
M. V. Lee Badgett Director of the Williams Institute and Adjunct Professor at UCLA School of Law
AreWeAllDecisionistsNow?ResponsetoLibbyAdler M.V.LeeBadgett LibbyAdlersthoughtfularticleservesasareminderthattherearedifferentstrategiesthatwecouldcallontoachieve greatersocialequality.Furthermore,herfocusonthemostmarginalizedmembersofmarginalizedgroupssuchas homelessLGBTyouthortransgendersexworkerskeepsthediversityoftheLGBTcommunityandthevaryinglife experiencesofLGBTpeopleinfullviewofthoseengagedincollectiveeffortstoimprovethelivesofallLGBTpeople.I alsoappreciateAdlersrecognitionofthepracticalprocessesthatarepartofsocialchangeefforts.Sheunderstandsthe necessarilyimperfectanddifficultchoicesthatorganizations,inparticular,mustmakeinallocatingcommunityresources todifferentends. However,assomeonewhoworksalongtheborderofthesocialsciencesandpolicyanalysis,notinlegalscholarship,Iwas troubledbytheimplicitframingofthedebateasthepursuitofformalrightsversusherviewofcriticalagendasetting.On onelevel,ProfessorAdlerdoesnotseemtobearguingforastricteither/orapproach,sincepresumablyanorganization orlitigatorcoulddecidethatthedistributionalandotherconsiderationspointtothedesirabilityofarightsbasedlegal challenge.Onanotherlevel,though,shesetstheformalrightsapproachupagainstthevariouscriticallegalscholarship traditionsinawaythatsuggeststhattheyaresubstitutesforeachotherintherangeofalternativesfacedbylegalactivists ratherthanbeingcomplementstheperspectivethatIwouldtake. Iprefertoseepoliciesthatpromoterightsandpoliciesthatcreatestructuresandresourcesthatgivethoserightsmeaning asbeingcomplementaryaboth/andapproachasopposedtoaneither/orapproach.Foronething,Ithinkthatview fitsbetterwiththeperspectivesofthosefightingforLGBTrights.Overthelastfewdecades,Ivetalkedtoandworkedwith manylegalandpoliticaladvocatesandgrassrootsorganizersintheLGBTsocialandpoliticalmovement.Theyhave almostalwaysrecognizedthathavingequalrightstohousing,employment,ormarriage,forinstance,arenecessarybutnot sufficientstepstowardaccesstotheopportunitiesandmaterialresourcesthatpromotehumanflourishing.Itisalso clearlypossibletofightfortherightsofmiddleclassLGBTpeopleandforthoseinmoreprecariouseconomicpositions. ThelegalgroupsfightingforLGBTrightsdosoonavarietyoffrontsandserveawiderangeofclientsrangingfromLGBT youthinfostercaretoLGBTprofessionals.MostLGBTadvocacyorganizationshaveawiderangeofgoalsthatneither beginnorendwiththefightfortherighttomarry,aparticulareffortthathasdrawnmuch(misguided,inmyview) criticismfromsomelegalscholars. Furthermore,researchonandevencasualobservationofthegaymarriagedebateshowusthatwithoutstrenuouseffortsto ensureequalrights,barrierstoavarietyofinstitutionswillpersistandwillharmLGBTpeople.Withouttherightto recourseagainstactsofdiscrimination,expandedaccesstopublicsectorjobsortrainingwillnothelpawomanfiredfor beinggaydealwiththeeconomicandpsychologicalharmsthatshemightexperience.Withouttherighttomarry,asame sexcouplewhowantstomarrywillbedeprivedofthesocial,economic,andpsychologicalvaluethattheyplaceonbeing
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allowedtoenteranimportantlegalinstitution.Winningthoserightscannotbetakenforgranted,aswecanobserveinthe flounderingofeffortstopassfederalnondiscriminationlawsandintheeffortsofmarriagerightsadvocatesasthey maneuvertheirwaythroughstatebystatesuccessesandsetbacks. Couldweachievesomeofthegoodeffectsofexpandingrightswithoutafocusonindividualrights?Possiblywewould expandaccesstohealthcaretomorepeoplethroughasinglepayerplanwithuniversalcoveragethanthroughgiving someoneinasamesexcoupledomesticpartnerbenefitsortherighttomarry.Wewouldimprovemorechildrensaccess tocaringparenting(laborbyparents)throughpaidfamilyleaveratherthanthroughgivingsamesexcouplesrightsunder theFamilyandMedicalLeaveAct.Buttogodownthoseroadswithnoattentiontorightsputsusbackatthequestionof accessandequaltreatment.LGBTpeoplearestillvulnerabletomarginalizationandthedenialofaccesstotheinstitutions thatwillregulateandimplementanyimaginedpolicy.WenowhavelotsofevidenceofdiscriminationagainstLGBT peopleinemployment,housing,healthcare,education,andsocialserviceswhywouldwethinkthatdiscrimination woulddisappearunderdifferentwaysoforganizingtheprovisionofthoseservicesandopportunities? Ofcourse,ascurrentdebatesaboutthebestwaytoorganizeourhealthcareandeducationalsystemsdemonstrate,making thekindofdeepandmeaningfulchangessoughtbyrightscriticsisdifficultatbest.Atworst,wegettheregurgitationofthe 2010healthcarereformactwithanewCongressandtheriseoftheTeaParty,forexample.(Thatissuealoneshould remindusthatitisnotjustrightsrhetoricandactivismthatprovokesthegenerationofcountervailingpolicyclaims.)At anyrate,itiseasytoseewhyaprudentLGBTdecisionistmightnotwanttoputallofhereggsinabroaderinstitutional reformbasketthatwillbedifficultanduncertaintopassandwouldnotprotecttherighttoaccessforallLGBTpeople. Intheend,IthinkthatthevalueofProfessorAdlersdecisionismlieslessincreatinganentirelynewlawreformagenda, sincethereisbutthefuzziestofsketchesofsuchanagendahere,andmoreincreatingadistributionalcheckpoint.There wouldbenoharmandperhapsalotofgoodifLGBTindividuals,activists,lawyers,andorganizationsbuiltinabroader perspectiveontherangeofneedsoftheLGBTpopulation,bothforactionnowandinthefuture.
Katherine Franke Professor of Law at Columbia University Can We Get A Witness? Katherine M. Franke[i] As Libby Adler notes in her provocative new essay Gay Rights and Lefts: Rights Critique and Distributive Analysis for Real Law Reform, queer theory, like other critical theory that preceded it (critical legal studies perhaps most prominently in legal scholarship[ii]) finds itself vulnerable to the now familiar attack that its value is substantially undermined by its failure to produce a positive political program, or at least a portable yardstick, with which to measure and evaluate legal and political strategies in queer terms. Law and economics has efficiency, liberal legalism has autonomy, and feminism (or at least some versions of it) urges us to ask the woman question,[iii] but queer theory, what does queer theory have on offer besides a method of critique that is deconstructive in nature? Adlers response is to urge us to think in complex terms, to take seriously the multiple vectors of vulnerability of homeless youth, of transgender persons and of other durably disenfranchised members of the LGBT-GNC[iv] community. The multiplicity she suggests has twin registers: that of rights and of redistribution. As Adler tells us, when the movement focuses on the needs of its most well-off members, the redistributive component of the LGBT-GNC movement is easily forgotten as rights-based claims are likely to do the trick of curing or addressing their disenfranchisement. But when it comes to the least well-
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off, rights might be nice, but redistribution is really what justice demands. Adlers use of examples compellingly illustrates the importance of both rights and redistribution to an effective and responsible LGBT-GNC politico-legal agenda. Perhaps the essays most important contribution to the literature in law will be the importation of a vital ongoing debate outside law, inaugurated by Nancy Frasiers now-famous essay on Rights and Redistribution. [v] Avoiding a false dichotomy between these two aims (that Frasier has been accused of creating), Adler argues reform-minded thinking that is simultaneously committed to both rights and redistribution. While this insight may seem well-worn to political theorists outside law, Adlers essay provides new evidence of the fact that it bears repeating in mainstream gay rights circles, where rights remain king. In this way, Adlers scholarship models what I regard to be queer theorys important role in larger LGBTGNC reform projects. Surpassing mere critique, queer theorists such as Adler, and queer activism more generally, function as the movements ombudsperson. A queer analysis insists that movement strategy take responsibility for the values it promotes by identifying and naming i) whose injuries are regarded as paradigmatic (and thus set the terms of plaintiff-selection criteria in civil rights litigation) and whose are not; ii) what kinds of kinship, attachment, and desire are to honored and treated as respectable (marriage, the couple, and private, consensual sex between adults) and what are not; and iii) what counts as an LGBT issue (discrimination that in an obvious way announces itself as sexual orientation-based) and what is not. Queer theory is committed to foregrounding the terms and consequences of these decisions. This is not to say that LGBT-GNC reform should be about everything or anything, but rather that the development of reform strategy must responsibly grapple with the values and costs of ruling in certain lives and forms of human suffering, while ruling out, or worse exiling and disparaging many others. The ombudsperson is rarely a popular character. She is not a paper-overer. She resists the urge to tidy up identity in such a way that makes our equality claims more palatable. She makes us face the costs of short-term strategy and incrementalism, insofar as the recognition of the civil rights of some come at the expense of the marginalization or immiseration of others. The kind of analysis that Adler offers in this essay is best understood as queer, and I would insist that it is essential to the responsible politics of reform particularly one framed in legal terms. The LGBT-GNC movement, for better or for worse, is now largely led by lawyers. Its strategies, horizons and values are largely those that lawyers would formulate: challenges to de jure discrimination (access to marriage and military service), equalization of the treatment of homo- and heterosexuality, and the recognition of samesex relationships as worthy of the dignity and respect that different-sex relationships seem to garner without effort. Surely these must be worthy goals, but as currently formulated they are goals that neglect and sometimes denigrate the lives and practices of people who are unable or unwilling to organize their desires, attachments, and notions of a good life in the vernaculars of the model homo-citizen. Libby Adler, the queer ombudsperson, as watchdog, insists that we keep these lives and ways of life in view.
[i] Professor of Law and Director of the Center for Gender & Sexuality Law, Columbia Law School. Katherine M. Franke. All Rights Reserved. [ii] See e.g. Paul Carrington, Of Law and the River, 34 J. Legal. Educ. 222 (1984).
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[iii] Katharine T. Bartlett, Feminist Legal Methods, 103 Harv. L.Rev. 829 (1990). [iv] This is Adlers term, meaning lesbian, gay, bisexual, transgender and gender non-conforming. [v] Nancy Fraser, From Redistribution to Recognition? Dilemmas of Justice in a Post-Socialist Age, 212 New Left Rev. 68 (1995). Angela Harris University at Buffalo Law School, State University of New York University of California-Berkeley School of Law Comments on Libby Adler, Gay Rights and Lefts: Rights Critique and Distributive Analysis for Real Law Reform Angela P. Harris University at Buffalo Law School, State University of New York University of California-Berkeley School of Law Libby Adler has written a fascinating, passionate essayand one that bafflingly keeps shifting ground. I will try to track some of its twists and turns with comments from three different directions. First direction: Although Adler believes she is engaging with a queer-centered critique of rights, she is actually grappling with something quite differentthe public-private divide. In the United States, the public world of legal rights and legal principles has little to no traction in the private world of markets, production, economic security and justice, and wealth distribution. What Adler seems to hate most about traditional, equality-centered, identity-centered legal work for queers is that (1) it has little impact on economic conditions, and (2) it lacks any analysis of economics and law. Having the right to marry or serve in the military doesnt do much for LGBT-GNC youth without jobs, as Adler points out. This doesnt have much to do with reconstruction versus decisionism, though. It has to do with the lack of economic rights in the U.S. Because of the nature of the public-private divide in United States law, recognition rights seldom bring with them redistribution rights (what ever happened to those forty acres and a mule, anyway?). Yet the real law reform agenda, as Adler calls it, indeed must be a distributive agenda. That means fighting for economic justice, which might or might not involve promoting economic rights. It also means, as Adler suggests, becoming more demanding about where the Big Principles of equality and liberty are going to take real queer people trying to live their lives. But the problem isnt rights as such. Its how rights are framed in our split-level polity, where the economy lives in an entirely different (and well-defended) place than our politico-legal citizenship. (Let me just note in a self-interested way that the ClassCrits project, www.classcrits.org, encourages just this kind of theoreticaland practicalinquiry among law professors.) Second direction: What Adler means by decisionism is simply pragmatism, and she is taking a twirl in the familiar dance between those who think that theorizing means knowing where you are going to end up before you get there, and those who think that it means muddling along a step at a time. (No need to invoke the slightly sulfurous ghost of Carl Schmitt; Richard Posner will do.) I am totally sympathetic to Adlers pragmatism as a critique of the search for a Theory of Everything. But to be slightly contrary for a minute (since that is my job as a commentator), let me just note that pragmatism (this version of it, anyway) really is in a dance with grand theory and is not in any way a substitute for it. If queer people had not had a prior
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revolutionary moment of declaring themselves inherently free, whole, dignified, and equal as people and as a peoplebased on Big Theory Principles of sovereignty, liberty, and equality then strategizing on behalf of LGBT-GNC youth, as such, would be impossible. That brave parade of capital letters signifying the complicated evolution and coexistence of a whole bunch of identity groups was brought to you, in part, by grand theory. So though Adler may be right that we need to move from the big picture to a much more nuanced series of small pictures, the relationship between the two is more dialectical than oppositional. Final direction: It is wholly appropriate, and delightful, that Adler recognizes critical race theory as an intellectual precursor of queer theory and draws on the work of those like Kimberle Crenshaw, who have also struggled with the legitimation function of rights. Yet it is disappointing that Adlers brief history of critical legal thought takes for granted that all the coloreds are straight and all the queers are white. (All the feminists, apparently, are also straight; but this brings us to the fraught relationship between feminist legal theory and queer legal theory, to which Janet Halley has recently called our attention, and probably too much ink has been spilled on this already.) It is absolutely true, as Stephanie Phillips has noted, that critical race theorists took an unconscionably long time to take sexuality seriously.[1] Yet there is now a small but important body of work that insists on the interconnectedness of race and sexuality, in theory and in practice. These writers share Adlers qualms about the dangers of fixation on the shining star of formal equality. They are also crafting their work within the legal academy, whereas Adlers account of queer theory identifies it as a product imported from the humanities. Yet they do not appear in Adlers pantheon of queer theorists. Where are Elvia Arriola, Berta Esperanza Hernandez-Truyol, Darren Hutchinson, Darren Rosenblum, Catherine Smith, and Frank Valdes, among others? This is not about politically correct footnoting. It goes to methodology and to the composition of Adlers imagined community. The recognition that sexuality and race are mutually imbricated, which Adler properly credits to Crenshaw and to Patricia Hill Collins, means that any theorizing taken up on behalf of the queer must wrestle with race as well, and not as an analogy. It also means that the communities for whom Adler writes are raced, and it matters whether theorists acknowledge this fact. The writers I have mentioned take this constitutive issuewho are we?as central to their work. It would be nice to see Adler grapple with it, too.
[1]
See Stephanie L. Phillips, The Convergence of the Critical Race Theory Workshop With LatCrit Theory: A History, 53 U. Miami L. Rev. 1247 (1999). Berta Esperanza Hernndez-Truyol Levin, Mabie & Levin Professor of Law, University of Florida Fredric G. Levin College of Law A Rose By Any Other Name A Response to Adler Berta Esperanza Hernndez-Truyol[i] Libby Adlers piece urging a holistic analysis for the pursuit of a law reform agenda is a welcome addition to several extensive literatures that predate this work. After almost 30 years in the academy, as someone who has been involved in critical movements and has focused her writing on multidimensionality, particularly with respect to outsiders, I appreciated the continued momentum and vitality of holistic work as displayed in this piece. Existing legal frameworks that seek to solve complicated problems of justice unquestionably fail to achieve equality in law and in fact.
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To further the conversation on valuable alternative analytical approaches, recall three geographies that have utilized such methodology. One, feminist pragmatism (FP), combined pragmatism, a philosophic genre that focuses engagement with the world, with feminist theory to generate social action. FP acknowledges the need to include discussion of experience and multiple realities as well as broad participation of involved persons/groups in creating solutions.[ii] For FP, a combination of theory and practice in a multidimensional framework just as Adler suggests is the means of reforming the social, political, cultural landscape, one that often recognizes the limitations of rights frames. Another discourse that acknowledges and embraces the complex web of needs that must be met to attain human flourishing is the human rights field.[iii] The rights include not only civil and political rights (life, non-discrimination/equality, vote, free association, freedom of religion); but also social, economic and cultural rights (health, education, welfare, social security, non-discrimination) as well as group or solidarity rights (peace, development, democracy, healthy environment, patrimony of humankind). Some human rights work overlooks the costs of its choices, but much of it goes further to include substantial attention to distributive outcomes. As I often say, the right to vote is meaningless to a parent whose children are hungry. Or conversely, as Amartya Sen has observed, there has never been a famine in a democracy. Much human rights literature centers on distributive outcomes and some recognizes the inability of human rights to attain distributive change. This criticism is what drives human rights law to be less formalistic. Finally, and perhaps most resonant for me in the context of Adlers work, the third piece is LatCrit, which emerged from critical legal studies and critical race theory. Its focus centered on the exclusion of Latina/o identities, interest and communities from critical interventions into law. LatCrit constitutes a left intervention into race discourse and a race intervention into left discourse all with a big-tent outlook that includes queer-crit legal studies. Latina/o positionalities against entrenched white, male, Anglo privilege in law and life, both public and private, necessitated a bold intervention the recognition that the voice of law and rights was sorely lacking for this group of people who cross race, color, religion, sex, sexuality, gender, and ability. All of these identities are socially constructed, a factor that makes LatCrits focus the submersion of law and rights in power all the more crucial. LatCrit understands strategic analysis and thus rotates centers and shifts bottoms to engage complex dimensions of peoples, individuals, groups. It also focuses on ensuring that multiple voices are heard; it practices a politics of inclusion, of community building, of not only taking seriously feminist, critical race, queer and post colonial theories, but also of incorporating these into the core of LatCrit theorizing and praxis. It recognizes that there are identitarian classifications and fundamental rights the enjoyment of both of which are necessary for human flourishing, separate categories that Gay Rights and Lefts conflates. LatCrits portfolio of projects includes academic events and publications, many of which focus on a critique of rights, even if that specific language is not always present. LatCrit is a story much like the one Adler has sought; one of crafting and practicing theory, developing community, building coalitions, and getting real results.[iv] Adlers focus is what she labels the LGBT-GNC population, their exclusions from/invisibility in policy concerns, and their goals. In that regard it is curious that she utilizes for the title of her work language that refers only to men. Moreover, it is surprising that in a subversive piece, challenging the utility of rights, she uses LGBT-GNC language, the language connected to the formalistic movement that seeks inclusion in rights rather than the queer language which would be more simpatico and better aligned with her posture. [v] Her attentiveness to cost-benefit analysis deploys law and economics, a linguistic trope that serves to mask the trade off of rights for political advancement. Yet, the trade-off affected by a cost/benefit analysis nonetheless starts with rights. Adlers own critique of rights reveals the challenge of such endeavors. Her example of LGBT-GNC youth is illustrative. She specifically mentions limits of youth capacity to contractlabor laws limiting the hours and conditions
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under which young people can work as legal conditions that have the greatest impact on their daily lives. Surely, both of these conditions can sound in rights. So there is the nagging concession to the utility of rights and indeed of law just as one criticizes them that mammoth concession to the regime of rights that serves a dangerous legitimating function, which create the narrative that since rights were fixed, any persisting inequalities are natural, normal, not deployed or maintained by structural inequities built into the system of law. Indeed, because of the multidimensionality of identities, it is often difficult to conclusively detail a *single* reason for or path to outsider status. As Adler herself notes regarding the LGBT-GNC youth example, their sexuality may have nothing to do with the legal conditions that most directly affect their daily lives, although their sexuality may well be central to any of a panoply of concerns they have and roadblocks they encounter. In sum, Adlers work seeks to advance the existing literature that focuses on praxis. Those of us who engage in such critiques, including self-critiques, are not agnostic to the reality that rights is not the end goal, but that the problematic of rights may undermine their utility, but may also be summoned in support of strategic objectives. [i] Levin, Mabie & Levin Professor of Law, University of Florida Fredric G. Levin College of Law. [ii] Pragmatist Feminism, Stanford Encyclopedia of Philosophy, first published August 22, 2004; substantive revision July 9, 2010,available at http://plato.stanford.edu/entries/femapproach-pragmatism/ last visited on March 1, 2011. [iii] Before expounding on this idea, I must make two observations. One, my suggestion that the human rights ideals merit consideration in analyzing a rights framework/critique should not be interpreted as a wholesale embrace of the existing system. I have elsewhere, as I will briefly state here, criticized the system as heteronormative, classist, racist, sexist, gendered, Northern/Western. However, some foundational aspects, that need not be deployed in those biased ways, are hugely useful. Two, I am in constant search for a linguistic alternative to rights as, in this context, the word suggests oppositionality whereas I view the discipline as focused on human flourishing and delineating the parameters of conditions necessary for the fulfillment of the human spirit, for maximizing human capabilities. [iv] See generally, www.latcrit.org last visited February 28, 2011. Lliterature on LatCrit, its philosophy, aspirations, publications and programs are available at the website. A very useful document is a lengthy power-point presentation by Tayyab Mahmud, LatCrit Theory, Practice Praxis, LatCrit/SALT Faculty Development Workshop, Denver, October 7, 2010, available at www.latcrit.org . [v] See, Janet Halley, Sexuality Harassment 82 in Left Legalism/Left Critique (Wendy Brown & Janet Halley eds., 2002)(noting that gay identity projects envision there are and should be gay men and lesbians but queer theory on the other hand, regards the homosexual/heterosexual distinction with skepticism and even resentment, arguing that it is historically contingent and itself oppressive). [1] Levin, Mabie & Levin Professor of Law, University of Florida Fredric G. Levin College of Law. [1] Pragmatist Feminism, Stanford Encyclopedia of Philosophy, first published August 22, 2004; substantive revision July 9, 2010,available at http://plato.stanford.edu/entries/femapproach-pragmatism/ last visited on March 1, 2011. [1] Before expounding on this idea, I must make two observations. One, my suggestion that the human rights ideals merit consideration in analyzing a rights framework/critique should not be interpreted as a
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wholesale embrace of the existing system. I have elsewhere, as I will briefly state here, criticized the system as heteronormative, classist, racist, sexist, gendered, Northern/Western. However, some foundational aspects, that need not be deployed in those biased ways, are hugely useful. Two, I am in constant search for a linguistic alternative to rights as, in this context, the word suggests oppositionality whereas I view the discipline as focused on human flourishing and delineating the parameters of conditions necessary for the fulfillment of the human spirit, for maximizing human capabilities. [1] See generally, www.latcrit.org last visited February 28, 2011. Lliterature on LatCrit, its philosophy, aspirations, publications and programs are available at the website. A very useful document is a lengthy power-point presentation by Tayyab Mahmud, LatCrit Theory, Practice Praxis, LatCrit/SALT Faculty Development Workshop, Denver, October 7, 2010, available at www.latcrit.org . [1] See, Janet Halley, Sexuality Harassment 82 in Left Legalism/Left Critique (Wendy Brown & Janet Halley eds., 2002)(noting that gay identity projects envision there are and should be gay men and lesbians but queer theory on the other hand, regards the homosexual/heterosexual distinction with skepticism and even resentment, arguing that it is historically contingent and itself oppressive). Prabha Kotiswaran Lecturer in Law at University of London Substantive and Methodological Issues Precipitated by Gay Rights and Lefts. Prabha Kotiswaran I am grateful to Libby Adler for her elegantly written Gay Rights and Lefts, which allows many of us crits from a recent generation of legal scholars the opportunity of inhabiting and substantively engaging with a moment in the history of the critical legal studies movement. Adler masterfully brings to bear on LGBTGNC issues the richness of the critique of rights discourse amongst its interlocutors, including liberals and the various camps of critical legal scholars over the years. I laud Adlers bold call to reinstate the value of critique by charting a move to distributive analysis with a view to enabling decisionism in the context of law reform. I am completely on board with Adlers call to action and what I offer below by way of comment is only an effort to elicit further clarification from Adler on what is an exciting initiative for all critically minded legal scholars. My comments track the substantive and methodological issues precipitated by Gay Rights and Lefts. Substantively speaking, at several points in Gay Rights and Lefts, Adler urges us to pay attention to the concrete, specific, lived and local realities of marginalized communities possibly foregoing what she calls the gratifications of identity-based reform. This is borne out in her own exmaple of LGBT-GNC youth as well as in the examples she uses to illustrate the redistributive move in recent critical legal work such as Shamirs work and my work. This leads me to ask if Adler is calling more generally for a move in the context of LGBT-GNC issues, from efforts at recognition to those focused on redistribution to use Nancy Frasers terms . This is a particularly significant call because after all, one would typically hold up the LGBT movement as perhaps triggering but definitely exemplifying the contemporary political focus on recognition as opposed to earlier struggles for redistribution. If Adler is indeed calling for a renewed focus on redistribution rather than recognition, what critical theoretical resources on materialism might one draw on? Also, how should we understand the reform efforts of specific social movements? Would the claims of LGBT-GNC homeless youth for redistribution for example also involve some claim for recognition; would their demands constitute affirmative or transformative claims for redistribution to use Frasers scheme? Indeed, Adlers argument suggests that the mapping of political claims to recognition and redistribution may
[i]
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be rather more complicated and messy for specific communities agitating on the ground in comparison to Frasers more broad-brush scheme. I also have a methodological question for Adler. What normative and methodological resources would she suggest in attempting distributive analysis? How might this relate to current trends in American legal academia including empirical legal studies and new legal realism? How might a distributive project informed by critical legal studies and certainly legal realism (as is evident in Adlers own mapping of the background legal rules affecting LGBT-GNC homeless youth) differentiate itself from these trends? Is there room for incorporating more complex accounts of the law in action as opposed to law on the books from socio-legal scholarship in our distributional analyses? Further, is cost-benefit analysis the only way of assessing decisions even if costs were multi-dimensional and informed by sophisticated critical thinking? More generally, is there a significant difference between a decision arrived at through cost-benefit analysis and the more strategic deployment of rights and identities advocated by critical race scholars and postcolonial scholars (like Spivak), respectively? Last but not the least, while I laud Adlers effort to lead us through robust distributive analysis toward redistribution, I ask if we must in fact jump as she suggests we do once the weighing is done. In other words, to what extent must we, as we inch toward decisionism in fact make decisions to justify our critical work? Not that a call to action is inconceivable; indeed feminists in the 1980s called for feminist praxis informed by action research. If so, how might this affect the kinds of social action that lawyers might undertake? And what if we dont? Can we not legitimately remain content while we pause and patiently undertake the long and ardous task of mapping the unintended consequences of bad decisions with ever more nuanced distributive analyses?
[i]
Nancy Fraser. Justice Interruptus: Critical Reflections on the Postsocialist Condition. New York and London: Routledge, (1997).
Arthur S. Leonard New York Law School When Theory Meets Reality Arthur S. Leonard, New York Law School Libby Adler has focused a discerning lens on the LGBT struggle, critiquing the pursuit of rights and suggesting we instead improve the distribution of social goods. Her critique argues that a pursuit of rights loses sight of the needs of the community and creates the possibility for serious setbacks as the very rights established through litigation may later be used to counter the interests of LGBT people. It also argues that achievement of rightsmost specifically, the achievement of formal equalitymay do little to help those on the margins, whose existence can only be improved through redistribution of social goods. Professor Adlers exercise is certainly worth undertaking, and it is hard to argue with the proposition that the movement should undertake a more deliberative approach to selecting strategies and targeting resources in order to produce the maximum beneficial effect for the largest number of people. On the other hand, this theorizing may be proceeding in an informational vacuum about how such decisions are made, and by whom they are made. As one who has been observing the legal movement closely for more than
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three decades, I see that more often than not, actual events guide the development of the law and the deliberative process Professor Adler describes seems chimerical. My observation is well-demonstrated by the example of the struggle for same-sex marriage. There was litigation over marriage for same-sex couples from the 1970s onward, but it was not until the late 1990s that an LGBT public interest law firm filed a marriage suit, in Vermont, following what seemed like interminable discussions among the legal staff at public interest law firms seeking to promote the values of the LGBT movement (I will call these movement firms). The earliest marriage cases were all filed by individual couples on their own behalf or by attorneys not employed by or associated with movement firms. In the late 1980s and early 1990s, movement firms actively discouraged marriage lawsuits and specifically declined to represent plaintiffs, and this was not just because they thought the cases would be unsuccessful. It was in large part because of the internal debate over whether the movement should be seeking marriage. Some of Adlers arguments sound eerily familiar to those proposed in the town hall meeting debates staged by Lambda Legal Defense Funds former executive director, Tom Stoddard, and former legal director, Paula Ettelbrick. Stoddard articulated a traditional liberal equality line, arguing that because marriage was an important social institution that provided a wide-ranging framework of legal rights and protections, it should be made equally available for same-sex couples. In contrast, Ettelbrick questioned whether attaining marriage, a confining and historically stifling institution, should be an LGBT movement goal. She suggested that while marriage might benefit some portion of the community, a larger segment would benefit from seeking to uncouple important legal entitlements and protections from marriage and to provide the means for LGBT people to define their relationships in ways that were meaningful to them. Why privilege couples who wanted a traditional socially-sanctioned relationship when the movement was about liberation, autonomy, freedom, and avoidance of the shackles of conventionality? Ettelbricks arguments were more persuasive to many movement attorneys, but seemed to carry less weight with the LGBT proletariat. Why did the movement firms change course and join the marriage crusade? When the Supreme Court of Hawaii reversed a dismissal and remanded a same-sex marriage case for trial, Lambda Legal joined the local attorney who had brought the case to ensure that the suit would not founder at trial for lack of resources and to bolster it with the experience of movement lawyers. The movement firms, however, had originally rebuffed the plaintiffs requests for representation. Part of their reasoning, of course, was that same-sex marriage cases did not seem winnable in the context of a string of prior losses and the then-recent Supreme Court loss in Bowers v. Hardwick. But the other part of the calculus, as noted above, was that the movement firms were conflicted and had determined that seeking to open marriage to same-sex couples might not be an appropriate strategy to promote LGBT freedoms. In Hawaii, the optimists prevailed at trial when the court ruled in favor of same-sex marriage, but the pessimists prevailed when the legislature responded by placing a state constitutional amendment on the ballot that took from the courts the power to decide whether same-sex couples could marry. As a sop to gay Hawaiians, the state legislature enacted the Reciprocal Beneficiaries Law, making it the first state to accord a modest menu of rights to some same-sex couples; nonetheless, Hawaiians approved the constitutional amendment overwhelmingly. It is only as this piece is being written that Hawaii has adopted a Civil Union Act. The Hawaii case had ramifications other than the immediate results of the trial or the local political reactions to it. The Hawaii Supreme Courts 1993 decision set off a national political panic resulting in passage of the Defense of Marriage Act (DOMA) in 1996, and passage in many states of state constitutional
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amendments or statutes specifically denying same-sex couples the right to marry or, in some states, to have any kind of recognized legal status. On the other hand, the success at trial disproved the thesis that no court would ever rule in favor of same-sex marriage, and public opinion polls started to show movement towards public support for opening up marriage to same-sex couples or providing some alternative form of legal recognition. It was at this point that a decisive strategy by the movement firms emerged, resulting in their filing carefully conceived test-cases in Vermont and several other states. Their efforts continued to gain momentum after the public explosion ignited by the Supreme Courts 2003 decision invalidating a Texas sodomy law in Lawrence v. Texas, and the ruling shortly thereafter for same-sex marriage by the Massachusetts Supreme Judicial Court in Goodridge v. Department of Public Health. The most significant ignition force, however, was totally out of the control or planning of the movement: San Francisco Mayor Gavin Newsoms reaction to Goodridge (and the incipient anti-Goodridge backlash of a federal anti-marriage amendment backed by the Bush Administration). The mayor directed the city clerk to begin issuing marriage licenses to same-sex couples in February 2004, leading to copycat actions in several other locations (Oregon, New Mexico, and New York) and much more litigation. Some of this litigation, however, rushed into the courts without the kind of deliberately laid groundwork of the earlier movement cases, and some of it in jurisdictions that had not been high on the list of places for prospective suits by the movement organizations. The result of all this: Today same-sex couples can marry in half a dozen jurisdictions and have the options of civil unions or domestic partnerships in several more; the Defense of Marriage Act is under serious attack in the courts; pending litigation in the Ninth Circuit may lead to a Fourteenth Amendment ruling on samesex marriage by the Supreme Court within a few years; and public opinion has moved substantially towards favoring legal status and rights for same-sex couples. However, the overwhelming majority of states still have constitutional provisions or statutes absolutely forbidding same-sex marriage and, in some cases, also forbidding civil unions or domestic partnerships. From the viewpoint of Adlers critique, then, perhaps all of this energy should have instead been spent seeking to transform legal and social institutions so that eligibility for health insurance, family immigrant status, and various other legal entitlements and benefits would not be premised on marriage. This great expenditure of resources and effort did nothing to improve the situation for uncoupled LGBT people, including those arguably most in needsuffering from poverty, educational deprivation, and social exploitation. On a theoretical level, many of the movement attorneys may have prospectively agreed with this critique, and certainly the agendas of the movement firms in the early 1990s reflected these priorities. But the movement lawyers have only a tenuous hold on the direction of events, as it takes only one determined plaintiff and an attorney willing to represent her to set a new lawsuit in motion or one courageous mayor to order a clerk to issue marriage licenses to same-sex partners. In other words, Adlers critical theory is provocative and it can inspire important reflection, but reality has a way of imposing different priorities. Nancy D. Polikoff Professor of Law, American University Washington College of Law
HOWTHEEQUALRIGHTSFRAMEFAILSMARRIEDSAMESEXCOUPLES ByNancyD.Polikoff,ProfessorofLaw,AmericanUniversityWashingtonCollegeofLaw Accesstomarriageforsamesexcouplesisthequintessentialdemandforformalequality.InProfessorAdlerslanguageitisthepersistentdrumbeat[that] hasmadeitdifficulttoconceiveoflawreformgoalsnotinsyncwiththatbeat.Asarightsbasedlegalstrategy,shewrites,itisnotasimplequestionofgoodfaith
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[i] orbadfaith,butofshapingonesfaith. Inthisbriefcomment,Iwouldliketodiscusshowtheargumentsformarriageequalityareobscuringadistributiveanalysisofthematerialconsequencesof marriage.Iamnotaddressingheretheargumentsbasedontheequalworthanddignityoflovebetweentwopeopleofthesamesex.Advocacyformarriageneverrests entirelyonsucharguments. Rather,advocatesalsoarticulatematerialwaysinwhichdenialofmarriagedisadvantagessamesexcouples.Thisincludesreferencestothemorethan1,100 legalrightsthatareunavailabletosamesexcoupleswhoaremarriedintheirhomestates,becausetheDefenseofMarriageAct(DOMA)prohibitsfederalrecognition ofsamesexmarriage.ThegayrightslitigationgroupGayandLesbianAdvocatesandDefenders(GLAD)hasfiledtwocaseschallengingthatsectionofDOMA [ii] (Section3),andalltheplaintiffsinbothcasesallegesuchmaterialdisadvantage. (AsIwritethiscommentary,theAttorneyGeneralhasjustannouncedthatthe ObamaadministrationwillnolongerdefendtheconstitutionalityofSection3ofDOMA.ItwillcontinuetoenforceDOMA,however,untilafinaljudicialrulingor Congressionalaction.) Butonlyasubsetofmarriedsamesexcouplescanbeplaintiffsinthislitigation,becauseoncertainbigticketitemsonly somesamesexcouplesareworseoff beingunmarriedunderfederallaw.Othersarebetteroff.Thisfactisneitherwidelydisseminatednorexplicitlystated,andsoitdoesnotfactorintodeterminingthe bestpathwaystoeconomicsecurityforgayandlesbianfamilies. SixoftheplaintiffcouplesinGLADstwocaseshavesufferedfinancialpenaltiesbecausetheycannotfiletheirfederalincometaxasmarried.Butthestructure offederalincometaxliabilityhelpsmarriedcouplesonlywhenthereissubstantialdisparitybetweentheincomesofthetwoindividuals.Singlewageearnercouples withonespouseathomefarethebest.Whenbothspousesworkandearnclosetoequalincomes,thecouplepays moreintaxesiftheyaremarried.Thefamilieswho gainthemostfromthisstructurearethosethatreplicatethegendereddivisionoflaborinmarriage.Thefamiliesthatlosearethosewhoequallydivideincome producingandunpaidhomemakingandcaretakingtasks. Oursocialsecuritysystemfavorsthesametypeoffamilies.ThreeofGLADsplaintiffsclaimthattheyareharmedbecauseoftheirinabilitytoqualifyfor socialsecurityspousalandsurvivorsbenefits.Themarriedcoupleswhopaytheleastintosocialsecurityandgetthemostoutarethosewithasinglewageearner. Equalearningmarriedcouples,ontheotherhand,paymoreinandgetlessout.Oursocialsecuritysystemwasdesignedinthe1930stobenefitwhitecoupleswitha husbandintheworkforceandawifeathome.ResearchshowsthatevennowthesystemdisadvantagesAfricanAmericancouples,whoaremorelikelythantheirwhite counterpartstohavetwoworkingspouses.MarriedsamesexcoupleswhocountasunmarriedbecauseofDOMAarenoworseoffthanthoseAfricanAmericanmarried couples.IfDOMAiseliminated,marriedsamesexcoupleswhoreplicatethegendereddivisionoflaborwillmoveintothegroupsubsidizedbytherestofus. AlthoughnotrepresentedamongtheDOMAchallengeplaintiffs,gayrightsgroupshavealsofaultedMedicaidrulesthatdonotrecognizemarriedsamesex couples.AdvocateschargethatwhenonespousemustturntoMedicaidfornursinghomecare,DOMAprohibitstheotherfromretainingashareofthecouplesassets asthecommunityspouse.Butwhenthespousewhodoesnotneednursinghomecareholdsmostoftheassets,orevenhalftheassets,thatpersoncankeep allof hisorherassetsifthecoupleisnottreatedasmarried.Theonlymarriedsamesexcoupleshurtbythelackoffederalrecognitionarethoseinwhichonespouseholds themajorityofassetsandthatspouseistheonewhorequiresaMedicaidfundednursinghome.Thisisaminorityofsamesexcouples. [iii] I
NotethatIamnotquestioninghererulesthattreatallmarriedcouplesbetterthanallunmarriedcouples.Ihavedevelopedthoseargumentsextensivelyelsewhere. arepartoftheirconstituency.
amquestioningtheactionstakenbygayrightsgroupsthatbenefitsomemarriedcouplesandhurtothermarriedcouples,whenpresumablyallmarriedsamesexcouples
Themarriageequalityframeisantitheticaltoadistributiveanalysisofhowourincometax,socialsecurity,andMedicaidrulesaffectfamilies.Yetthereare numerousnongayorganizationsengagedinsuchanalyses.Ifgayrightslawreformersare,inProfessorAdlerswords,willingtoforegothegratificationsofidentity basedreform,theycouldjointheseefforts.Theframeforsucheffortsisoneofdistributivejustice,specificallywhethercertaintypesoffamilies,evenamongmarried couples,deservegreatereconomicsubsidiesthanotherfamilyforms.Suchdiscussionsmayseemperipheraltothemandateofnationalgayrightsgroups,buttheyare anythingbutperipheraltothematerialwellbeingoflesbians,gaymen,andthefamiliesthattheycreate.
[i]
LibbyAdler,GayRightsandLefts:RightsCritiqueandDistributiveAnalysisforRealLawReform,46 Harv.C.r.C.l.L.Rev.Amicus1,2(2011))availableathttp://harvardcrcl.org/wp
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content/uploads/2011/02/Libby_Adler_Gay_Rights_And_Lefts.pdf.
[ii]
SeeGillvOfficeofPers.Mgmt.,699F.Supp.2d374(D.Mass.2010)FirstAmendedComplaint, Pedersenv.OfficeofPers.Mgmt.,No.310cv1750(D.Conn.Jan.14,2011).Informationaboutthese lawsuitsisavailableat:http://www.glad.org/doma.TheACLUhasfiledasimilarcase,Windsorv.United States.SeeACLU,Windsorv.UnitedStates:EdieWindsorChallengesDOMA,availableat http://www.aclu.org/lgbtrights/windsorvunitedstates.

[iii]
SeeNancyD.Polikoff,Beyond(StraightandGay)Marriage:ValuingAllFamiliesundertheLaw (BeaconPress2008).TheclaimsoftheGLADplaintiffswhoarefederalemployeesandcannotaddtheir spousestotheirhealthinsurancebenefitsfallintothiscategory.Formyanalysisofthisissue,seeidat146 58. Rachel Rebouch Assistant Professor of Law at University of Florida Levin College of Law Response to Adler, 2.27.12 Rachel Rebouch In her thought-provoking essay, Libby Adler argues that reform projects committed to the critique of rights can and should support practical strategies for addressing social injustice.[i] Her method, decisionism, shares much in common with approaches like feminist pragmatism. Reproductive rights activists, for example, might argue that substantive rather than formal equality, as understood in the language of human rights and womens lived experiences, can result in the real reform Adler has in mind. However, Adlers decisionism is skeptical of the regime of rights. It rejects the proposition that rights, on balance, have more to offer than they cost. I am presently thinking about why such skepticism should be part of transnational abortion law reform. Courts in countries as diverse as Colombia and South Africa reference an international consensus when legalizing limited grounds for abortion or upholding laws that permit abortion in differing circumstances.[ii] Their decisions emphasize the global influence of Roe v. Wade toward abortion liberalization. At the same time, decisions acknowledge that not all countries have relaxed restrictions, citing German cases upholding constitutional protection of the fetus. The juxtaposition of American and German jurisprudence as opposite choices in abortion law reform paints a distorted picture of abortion availability in each country. Abortion services may be less available in regions of the United Stateswhere women enjoy a constitutional right to pre-viability proceduresthan in Germany, where abortion is still a criminal (although not punishable) act.[iii] Since Roe, U.S. state and federal laws now ban certain procedures, mandate additional licensing and facility requirements for providers, and restrict funding through public programs or insurance plans for most women.[iv] By contrast, women in Germany may terminate pregnancies (at the expense of the state, depending upon income) after submitting to counseling, the requirements of which vary in tone and length.[v] Resulting decisions thus often employ an overly formalist understanding of foreign abortion jurisprudence that ignores realities on the ground. In the same way that Adler argues formal equality can be a tempting and totalizing objective of LGBT-GNC movements, expanding the legal grounds for abortion has been a consistent and consuming focus of reproductive rights lawyers. Advocates drive the current use of comparative law, as illustrated by the briefs they file and the public education materials they disseminate. What appears missing is a decisionist analysis that seeks to understand the limits of what expanding the
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legal grounds for abortion can accomplish and whether women can actually exercise newly acquired rights. The consequences, as Adler demonstrates in other contexts, are not just academic or theoretical. Victories in court may concentrate advocacy energy on defending rights rather than developing existing avenues for delivering termination services, like menstrual regulation, that do not sit easily with a rights discourse.[vi] For me, the difficult task ahead is to understand how this kind of critique can translate into new directions for reform. Distributional analysis may be a threshold and crucial part of a decisionist process. But, as Adler notes, criticism for the purposes of deconstruction only, unaccompanied by alternative agendas and proposals, does not frequently encourage change. How might decisionism respond to concerns about womens reproductive autonomy (to which rights traditionally speak)? What are the costs with which we can live? Shifting attention from legalizing particular grounds for abortion might mean some women who would have exercised new rights will not. The challenge for reformers is to consider how their strategies will compensate for potential losses. I have not yet embarked on the difficult task of describing different paths in the transnational abortion context. Interestingly, Adler does not necessarily model what that process should look like. She does not develop concrete policy options for a reform project related to homeless LGBT-GNC youth. This may be because weighing costs and seeing even intermediate or partial solutions supposes another set of questions that Adler does not answer. What costs will be too heavy or too destructive to bear? Who or what groups will make those value judgments? How will decisionmakers measure or express experience and marginalization? In what circumstances should reformers embrace rights? Decisionism as a neutral cost benefit exercise, in theory, could justify a rights approach. It is possible that reproductive rights advocates would engage in the careful deliberation called for by Adler, yet believe they lose more than they gain by reconsidering litigation of rights to abortion. Perhaps, like this response, Adlers essay is not the place to wrestle with the question, Whats next? Instead, her method demonstrates how the uncertainty attendant to trial and error might encourage legal interventions that are timely, responsible, and meaningful. Adler inspires confidence that critical, progressive scholarship can speak to the needs of marginalized persons and communities.
[i] Libby Adler, Gay Rights and Lefts: Rights Critique and Distributive Analysis for Real Law Reform, 46 Harv. C.R.C.L. L. Rev. Amicus __ (2011), available at http://harvardcrcl.org/wpcontent/uploads/2011/02/Libby_Adler_Gay_Rights_And_Lefts.pdf. [ii] See, e.g., Sentencia C-355 de 2006 Corte Constitucional, May 10, 2006, at www.constitucional.gov.co/corte/; Christian Lawyers Assoc. v. Minister of Health [2004] 4 All SA 31, 42 (S. Afr.). [iii] I am not suggesting that the rate of abortion is higher in Germany, but that a woman has, in many places, more opportunities than in the United States to obtain an abortion. Studies suggest that the rate of abortion in Germany and in Western Europe generally is lower because of greater contraceptive use. See Susan Cohen, New Date on Abortion Incidence, Safety Illuminate Key Aspects of Worldwide Abortion Debate, 10 Guttmacher Poly Rev. 2, 2 (2007), available at http://www.guttmacher.org/pubs/gpr/10/4/gpr100402.html. [iv] See generally Ctr. for Reprod. Rts., Overview of Types of Abortion Restrictions in the States, available
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at http://reproductiverights.org/en/document/overview-of-types-of-abortion-restrictions-in-the-states. [v] See, e.g., Mary Anne Case, Perfectionism and Fundamentalism in the Application of German Abortion Laws, in Constituting Equality: Gender Equality and Comparative Constitutional Law 98-99 (Susan H. Williams ed., 2009). [vi] See, e.g., Cyra Akila Choudhury, Exporting Subjects: Globalizing Family Law Progress Through International Human Rights, 32 Mich. J. Intl L. 259, 294 (2010) (describing menstrual regulation in Bangladesh as an early term abortion before a woman tests for pregnancy but after she realizes she missed a menstrual cycle.). Darren Rosenblum Professor of Law at Pace University
ResponsetoGayRightsandLefts:RightsCritiquesandDistributiveAnalysisforRealLawReformbyLibbyAdler [i] DarrenRosenblum ProfessorAdlersprojectisambitiousandadmirabletoformulatearightscritiqueandhavethatcritiqueserveasabasisfora renewedunderstandingofdecisionism. Myresponsewillrecoveranearlierrightscritiqueandextendit.Withsomeimmodesty,IwanttoreferenceapiecethatLaw andSexuality:AReviewofLesbianandGayLegalIssuespublishedin1994,QueerIntersectionalityandtheFailureof [ii] LesbianandGayVictories. Thatarticlepulledtogetherthreetheories:KimberleCrenshawsintersectionality,Adrienne Richslesbiancontinuumandqueertheory.Thequeertheoryarosenotonlyfromacademicinquiriesbutalsofromearly 1990sinvolvementinACTUPandQueerNation.Iarguedthatqueeridentityisintersectional,notjustacrossthetypical differencesofrace,classandgender,butalsospanningthosewhoarecrossgenderedandsexualsubversivesaswell(moreon themlater).Lesbianandgayitselffollowedaliberalrightsframe,oneresistedbyqueersonacontinuumofqueerness, rangingfromintenseidentificationtooccasionalactsofsubversion.Iarticulatedqueerlegalneedsandquestionedtowhat extentseveralcases,notablyBraschiv.StahlAssociates,wereactuallythewidelylaudedvictoriesthatadvocatespraised. ThesecasesIcriticizedhadopenedpathsforlesbianandgaycouplerecognition,buttheymandatedheterostructures, notablyselfpresentingasacoupleandexclusivity.Thismonogamyrequirementpresentedasetofrightsthateluded queerlegalneedsandassuchshouldnotbeconsideredqueervictories. IwanttorelateabitmoreofthegenealogyofqueernessthatIhopemightaddtoProfessorAdlersinquiryonrights.Queer wasbornatatimewhenwequeersweresurroundedbyugly,cruel,andhumiliatingdeathsdeathsthatborethefruitofACT UPsbrilliantanger.WithinACTUP,weragedatheterosexualsocietyformassmurderbycomplacency.In1990, AnonymousQueerspublishedQueersReadThisasapamphlethandedoutattheNewYorkgayprideparade.Ityielded QueerNationandotherqueeractivism.Queertheorists,notablyDouglasCrimpandMichaelWarner,joinedACTUPwith usatthattimethemovementbegantobleedintothetheory.Thisqueercritiquehadatitscoreasuspicionoflesbianand gayrights.Ivividlyrecallthe1989eventwhereHeritageofPride(HOP),theorganizeroftheGayPrideParade,hadarranged forthenMayorEdwardI.KochtodedicatetheblockofChristopherStreetwheretheStonewallInnwas(andis)locatedas StonewallPlace.Itwasahugevictoryforthemainstreamlesbianandgayrightsestablishmentonthetwentiethanniversary ofStonewall,yetweinACTUPwerefuriousthatHOPhadinvitedthisclosetedmayorwhohadignoreddemandsfor healthcarefundingtodealwiththeAIDScrisis.Wedecidedtodoadiein,amalapropismmeaningthatweputheadstones behindoursupinebodies,todisrupttheribboncutting..AlthoughtheNewYorkPoliceDepartmentlikelypreemptedby asphaltingthatblockthenightbefore,wecompletelyruinedHOPscelebration.
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Queerresistancesuchasthisservesacriticaltheoreticalandpracticalpurpose.Itisnottheonlyresistance,anditcanbe productivetobothoppose(asabove)andworkintandemwithamoreestablishedpolitics.DrawingonFoucault,inQueer IntersectionalityIcriticizedwaysinwhichsomerightsworkcouldbecoopted:Indeed,thesecasesandtheirinherent limitationscanbeviewedasacooptingofradicaldemandstopreventabroadersubversionofthecurrentheterosexistorder. ThecourtthusfunctionsinBraschinottocreateafirststeptofurtherrights,buttoinoculatethesystemagainstthethreat [iii] queerpoliticsposes. Iwentontoargue, [T]hetransformationofthelegallandscapeofqueerliveswilloccurthroughamultiplicityofresistancesandactivisms.Queer legalactivistsmustatoncebeawareoftheirrolebothinsideandoutsidethelaw:toreformandsubvertjuridical heterosexism.AwareoftheLawsabilitytofurthercooptanddivideourcommunities,wemustremindourselvesthatour goalliesnotinthemaintenanceofthelaw,butinqueerliberation. Rethinkingrightsfromasexualsubversiveperspective,asIattemptedtodoinpartinQueerIntersectionality,cangomuch further.ManyqueerspursueradicalformsofsexualityinwhatFoucaultcalledlaboratoriesofsexualexperimentation: publicsexinparksandbackrooms,anonymoussex,groupsex,promiscuity,andsadomasochism.Laboratoriesindeed multiplepartnersseemstohavebecomethenormformanynonqueersassextingbecomestheScrabbleofcurrentyouth. Queerpoliticscanandshouldridethisshiftinsexualexpression.Expandingrightsinthiscontextmayhavebeenfurthered byLawrence,asIhavearguedlibertyframesmayprotectsexuality,butqueersmustpushfortherecognitionofsubversive [iv] sexualities. Takingdecisionismseriouslyrequiresadistributiveimpactanalysistoassesswhetherrightsmightbenefit sexualsubversives.WoulditrequirepresentingsexualsubversiontolooklikeModernFamily?Thelimitpushingistaking placenow:acurrentcourtchallengeexploreswhetherLawrenceprotectssexworkersfromheightenedprosecutionforcertain lessacceptedsexualacts.Thislitigation,decadesafterGayleRubinsThinkingSex,remindsusthatsexuallibertyhasnot fullytakenroot. ProfessorAdlersays,Iurgereformmindedthinkerstogeneratenumerousanddispersedpossibilities,eachtheproductof specificandlocalconsiderationforitsconcretedistributiveimpact,readinesstobearthecoststhatmaycome,andthe acceptanceofthedifficultrealitythatwecannotknowinadvancehoweverythingwillturnout.Thisdistributivefocus leadsthedecisionistconversation.Butbeforeweevendecidewhichreform,though,wemustascertainwhethertoreforma substantivedistributionalassessmentrequiresneitherreformnoraLeninistantireformism. Inthissense,sexualsubversivesneedsposethestrongestqueertheoreticalchallengebecausethepathdependentmovefor lesbianandgayrightsofteninvolvesheteronormativeparalleldrawing,asIdescribedinQueerIntersectionality.Professor Adlerspromisingbeginningofafullerinquiryintoacritiqueofrightsshouldprovequitefruitful.Ilaudherinsistenceon thiscriticalcomponentofsocialjustice,andhopeourqueertheoriescangetusevensomewhatclosertosuchrealities.
[i]
VisitingProfessor,SeattleUniversitySchoolofLawProfessor,PaceLawSchool
[ii] DarrenRosenblum, QueerIntersectionalityandtheFailureofLesbianandGayVictories, 4Law&Sexuality83(1994).IwrotethatArticlewithguidancefrom RuthannRobsonandKendallThomas.
[iii]
HereIreferenceRolandBarthesuseoftheterminoculation,whichiswhenasocietyacceptsaminor changetoforestallmoresubstantialtransformations.
[iv] DarrenRosenblum, QueerIntersectionalityRevisited:ExpandingLegalVictories, inQueerMobilizations:LGBTActivistsConfronttheLaw(AnnaMaria MarshallandMaryBernstein,eds.)(NYUPress2009).
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Hila Shamir Assistant professor, Tel-Aviv University, Buchman Faculty of Law Some Reflections on the Challenges of Distributive Analysis Hila Shamir*
Libby Adler in Gay Rights and Lefts: Rights Critique and Distributive Analysis for Real Law Reform provides a careful and clear account of the value of distributive analysis to (critical) legal thought, and a persuasive response to the claim that refusing to take a reconstructive path is nihilist. Her thesis rests on a distinction between reconstruction and decisionsim. Adler understands decisionism, as it is used by critical legal scholars, to be: Making difficult choices about which law reform initiatives to undertake (1) based on broadly informed distributional hypotheses and cost-benefit calculations and then acting on the best information one can get with the best judgment one can muster, (2) always prepared to bear the costs of ones choices. (3) Each law reform achievement, should it materialize, rather than being a step along a path in the direction of a lodestar such as formal equality, willone hopeseffectuate a positive distributive impact for marginalized persons while imposing bearable costs. (4) As a theoretic matter, the achievement is likely to be generalizable only to a limited extent, if at all. In other words, it will not necessarily further any overarching theoretic objective.[i] Is this normative/methodological agenda defensible? Is it sustainable? In what follows I answer these questions by examining the elements of this definition in the context of a research project in which I am currently involved. I am currently studying the legal regulation of prostitution/sex work. In my work, I compare two feminist positions about the legal treatment of sex work: the Swedish prohibitionist regime that criminalizes all those who profit from sex work (including clients) except the sex workers, and the Dutch legalization regime that legalizes and regulated the sex industry. I then turn to the Israeli hybrid regime that seems to be a combination of both classic feminist approaches: on the one hand, a prohibitionist position is expressed in the penal code, but on the other hand, there is deeply rooted institutional tolerance to sex work that verges on legalization. I employ the methodology of distributive analysis in order to understand the distributive outcomes of each regime as they pertain to various groups of stakeholders within and outside of the sex industry. With this research in mind, let me turn back to Adlers decisionism. I discuss each of the (above numbered) elements in her definition in turn: (1) Highly conflicting data exists about the realities of sex work.[ii] Some see sex work as violence against women, and as an extreme manifestation of male domination. Others regard sex work as a job like many others, in which working conditions depend on workers bargaining power. Each side supports their argument with data that affirms their view. [iii] In order to pursue Adlers broadly informed distributional hypotheses and cost-benefit calculations and then act on the best information one can get[,] I had to choose the information on which I would base my analysis. This choice in and of itself is value laden. I chose to use what appeared to be the most reliable data from both sets of conflicting information. My own beliefs and experience working with sex workers lead me to be suspicious of much of the information that depicts
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sex work as inherently and always violent.[iv] Yet, in order to intervene in the debate in the most productive and effective way, I had to take both sides seriously, suspend my partial disbelief, and engage with the best information provided by both sides of the debate. Taking both sides seriously may seem relativist or nihilist, but I would argue that a better term is pluralist. Having a broadly informed cost-benefit calculation on contested policy matters requires deep pluralism: taking seriously contradictory positions about the truth of social phenomena and incorporating them as part of the cost-benefit analysis. Only then can one reach the moment of decision. (2) Decisionism involves being prepared to bear the costs of your choices. It is here that it gets messy. If I take seriously the abolitionist position on sex work and yet end up favoring the legalization of sex work after conducting a distributive analysis, I need to face the fact that legalization may increase the harm to some sex workers, and may exclude others from protection. There will be costs. A distributive analysis will highlight where the costs lie and might be avoided or mitigated. For example, even if sex work is legalized, taking into account the violence and limited choices that some sex workers will still face can lead to the creation of programs to help those sex workers who want to find another source of income. Such a program can be developed along with programs that provide sex workers with tools and information regarding their rights as workers and service providers. These two kinds of programs usually do not coexist: the former is common under prohibitionist regimes and the latter under legalization regimes. Pursuing both policies may seem inconsistent because they are too easily perceived to reflect mutuallyexclusive moral and political paradigms (sex work is either good or bad! How can it be both?). I suspect that such messy ideological inconsistency is what is most unappealing to many about Adlers kind of distributive analysis. As she puts, it is not a theoretical push toward a shining telos on a hill.[v] Yet the goal of this methodology is not steadfast theoretical consistency but rather better distributive outcomes to certain designated groups, to which I turn next. (3) Adler identifies the following aim for the analysis: effectuate a positive distributive impact for marginalized persons while imposing bearable costs. Identifying the group of marginalized persons whose distributive interests a policy should promote poses a challenge. In relation to sex work, various marginalized groups with conflicting interests may be identified. A feminist policymaker may want to design a policy that will bring about positive distributive outcomes to all women, or to all sex workers. But a close distributive analysis reveals that not all women or sex workers have the same interests or will be benefited by any single policy. For example, it turns out that both legalization and prohibition tend to lead to intensified police attention to streetwalkers, to the elimination of prostitution from city streets coupled with the state-facilitated (or de-facto tolerated) flourishing of the indoor and online sectors of the sex trade . . . [and] the elimination of the visible manifestations of poverty and deviance (both racial and national) from urban spaces. [vi] Under this scenario, sex workers of different national or racial backgroundsas well as sex workers who occupy different sectors of the sex industryhave opposing interests. If we want to affect the situation of all sex workers, we might need to come up with different policies altogether. Conducting a distributive analysis exposes these conflicting interests at the risk of splitting group solidarity. Its value lies in exposing the interests of different stakeholders in a manner that allows a better picture of what is at stake for different groups and individuals. It can therefore improve the chances of achieving the desired distributive shift. This finer analysis of the interests of diverse members of a single group can also provide the basis for unlikely coalitions in the process of policymaking. (4) Finally, an important challenge and limitation to distributive analysis is the realization that it is highly contextual and hardly generalizable. In my own research, the attempt to compare the situation in Sweden, the Netherlands, and Israel requires great attention to detail and awareness of the limits of comparison. The distributive outcomes depend, among other things, on the general culture, police and prosecution cultures,
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the economic environment, the labor market, the structure of the sex industry, private law rules, the welfare state, and social and gender norms in each country. The policy preferences reached by cost-benefit analysis in one context will tell us little about another. Some aspects may be generalizable but surely not all. What some may decry as moral inconsistency is to me the core of the legal realist insight: considering distributive outcomes, the operation of legal rules, their contextual entrenchment, and complex, often unintended, consequences requires attention to the law in action. Otherwise the most well-intended, normativelyconsistent positions may end up causing more harm than good to the group that the policy aims to protect. As Adler shows, and as my very brief comments further emphasize, conducting a distributive analysis is not a neat, clean process with clear outcomes. It does not promise the satisfaction of a normative analysis that ends with one best practice solution. It requires deep pluralism and serious engagement with diverging positions, facing the costs of different policy choices, making difficult choices between groups of marginalized individuals, and realizing the limited reach of ones analysis. This methodology is a tool toward a better understanding of the interaction of policy with peoples lives. It is also a framework for theorizing and realizing the aspirations of a legal left. * Assistant professor, Tel-Aviv University, Buchman Faculty of Law. [i]Libby Adler, Gay Rights and Lefts: Rights Critique and Distributive Analysis for Real Law Reform, 46 Harv. C.r.- C.l. L. Rev. Amicus 1, 2 (2011) (numbers and emphasis added) available at http://harvardcrcl.org/wp-content/uploads/2011/02/Libby_Adler_Gay_Rights_And_Lefts.pdf. [ii] Wendy McElroy, Prostitution: Reconsidering Research, Spintech (Nov. 1999) available at: http://zetetics.com/mac/articles/spin1199.html.
[iii] For a review of the basic feminist positions regarding sex work see Aziza Ahmed, Feminism, Power and Sex Work in the Context of HIV/AIDS: Consequences for Womens Health 34 Harv. J. L. & Gen. 225, 228-231 (2011). [iv] For some of the reasons why see Ronald Weitzer, The Mythology of Prostitution: Advocacy Research and Public Policy, 7 Sex Res. Soc. Pol. 15 (2010). [v] Adler, supra note 1, at 12. [vi] Elizabeth Bernstein, Temporarily Yours: Intimacy, Authenticity, and the Commerce of Sex 164 (2007). Chase Strangio Equal Justice Works Fellow at Sylvia Rivera Law Project
Beyond a Rights Framework: Unforeseen Costs in Administrative Advocacy Chase Strangio At the Sylvia Rivera Law Project (SRLP) we share Professor Adlers concern about the ideology of formal legal equality and seek to challenge administrative barriers that have distributive consequences for
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our communities. Our mission is to guarantee that all people are free to self-determine their genders, regardless of income or race, and without facing violence, harassment or discrimination; we see legal reform as part of a larger movement for social change and one that must be connected to community-based organizing and leadership. A significant portion of SRLPs resources is dedicated to 1) increasing access to gender affirming medical care and 2) decreasing barriers to gender affirming government identification documents. These two legal projects both of which are crucial impair each other in very real ways. Every day, we argue that gender-affirming health care is necessary to make our bodies coherent when seeking coverage from medical insurance providers, and at the same time, contend that internal selfidentification as male or female without medical intervention is sufficient to make our gender identities real when seeking changed gender marker designations from local, state and federal agencies. As a result of these competing narratives, a new distributive cost has emerged: sex-specified care such as hysterectomies, prostate exams, gynecological exams and testicular exams are frequently denied to Transgender and Gender Non-Conforming (TGNC) individuals. Some of the problems that Adler observes in the context of anti-discrimination and equal rights also turn up in the context of administrative advocacy. Our arguments are imposing numerous costs in the register of identity-production, which in turn have concrete distributive consequences for our communities, especially in the domain of health. Under New York State Medicaid regulations, coverage for gender-affirming care is explicitly excluded.[i] The exclusion prevents Medicaid recipients from accessing mental health care, hormone therapy, and surgeries related to gender transition. Our efforts to challenge the New York Medicaid exclusion have relied on and reinforced strongly binary understandings of sexed bodies. To make out a judicial challenge to this exclusion, plaintiffs must establish a diagnosis of Gender Identity Disorder[ii] for which surgical intervention is medically necessary. The legally cognizable medical necessity narrative requires both pathologizing medicalization and binary sexing of trans bodies. The legal narrative responsive to the paradigm set-up by the exclusion is: I am a woman inside, therefore I need this surgery, to become a woman on the outside. The necessity standard pushes us toward a narrative about sexed embodiment. To be a woman, one must attain womanly embodiment with all its attending physicality and meaning. Our recitation of this narrative produces womanhood: it is not simply descriptive of what a complainant feels but also productive of what a woman is a person with breasts and without testicles and penis. While Medicaid precludes coverage for transition-related care, the Human Resources Administration (HRA) in New York City (the same agency that governs Medicaid) requires proof of gender surgery to re-classify an individual from his/her birth assigned sex to another sex. To facilitate an individuals access to gender-affirming identification, at SRLP we frequently advocate with HRA to shift the standard for a gender marker change from a surgical standard to a self-identification standard. Our narratives in this project emphasize the authenticity of internal self-identification. The narrative here becomes: my internal sense of my gender as X is real regardless of whether I have had surgery. When we seek insurance access for reassignment coverage, the body becomes the ultimate betrayer of our true genders and without medical intervention to fix the body we cannot be sexed. Here, we say, we are genuinely sexed without that medical intervention. The true-ness comes internally and our bodies as they look and feel are left out of the discourse. Instead of challenging the idea that a body with a penis is a male body, we ignore the body and simply say, I am female, my body is irrelevant. Through our efforts to expand access to gender affirming care while at the same time seeking to eliminate surgical requirements for gender marker changes in agency gate-keeping, we have created gaps in care for our communities. In our first advocacy narrative, a woman is someone with specific body parts breasts, a vagina and without other body parts a penis and testicles. In our second narrative, a woman is someone who identifies as a woman. These narratives must be deployed in different contexts to obtain important
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tangible benefits for people. But unfortunately, the collision between them has created new health costs. Different forms of health care are sex-limited under state Medicaid schemes. In New York, the coding of a recipients sex as male will preclude Medicaid coverage for procedures associated with femaleness under the regulatory scheme, such as hysterectomies, gynecological exams, obstetric exams, and mammograms. Successful advocacy to eliminate surgical requirements for a changed gender marker with HRA creates the following new problem: a person with a uterus and breasts is able to receive a gender-affirming Medicaid card with an M designation, but loses access to Medicaid coverage for mammograms and gynecological care. Similar problems arise for people who have been successful in obtaining a designation of F on their Medicaid cards but also require prostate and testicular care. The result is that other needed care is excluded from coverage and our communities again experience poor health outcomes. By conforming our advocacy projects to the paradigms of exclusion, our narratives have not centralized the idea that a person might seek an F gender designation, require estrogen and regular prostate exams. We are in the process of entrenching in law and in social discourse, a fixed and binary idea of sex. In so doing, we fail to challenge regulatory schemes that prevent a person identified with an M from having a uterus, or at least from getting medical care that a uterus might require. The law never will recognize the many ways we inhabit our bodies and our projects should not expect such validation from the law. At the same time, as advocates, we must anticipate the distributive costs of our work. It is my hope that by identifying this cost of our administrative advocacy we might imagine more creative strategies for engaging with our bodies in future projects. [i] N.Y. Comp. Codes R. & Regs. tit. 18, 505.2 (l)(West 2010)([p]ayment is not available for care, services, drugs, or supplies rendered for the purpose of gender reassignment (also known as transsexual surgery) or any care, services, drugs, or supplies intended to promote such treatment.)
[ii] Gender Identity Disorder is condition defined by the American Psychiatric Association in the Diagnostic & Statistical Manual: A condition characterized by a strong and persistent cross gender identification and discomfort about ones assigned sex, unrelated to either a perceived cultural advantage of being the other sex or a concurrent physical intersex condition, which results in clinically significant distress or impairment in social, occupation or important areas of functioning. DSM-IV-TR, 302.06 302.85. Francisco Valdes Professor of Law at University of Miami Making Theory Work: Queer Criticalities and the Legal Righting of Social Wrongs
Francisco Valdes* Professor Adler revisits and updates the triangular relationship of social in/justice, legal rights and critical theory/theorists, re-centering a point presumably key to all legal scholarship: the role of law and legal rights in the delivery of justice to particular people in particular places at particular times.[1] The proximate historical background and theoretical terrain for this reconsideration is the vigorous 1990s debate over
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the utility of rights in particular, and of law or legal reform in general, as instruments of social justiceand the role of critical legal theories and theorists in antisubordination social change.[2] The basic question is: do legal rights really promote social justice? As Professor Adler notes, the answers have ranged from yes to no to probably or possibly sometimes.[3] With this unsettled and contentious background in mind, Professor Adler urges a shift in critical theory and praxis from reconstruction to rigorous distributive analysis.[4] The difference, at least in significant part, seems to be about the scale and focus of approach[5]; The former evokes totalizing theories about equality or antisubordination,[6] while the latter focuses on decisionismthat is, the processes of smallscale agenda-setting and the prioritization of specific goals or tasks in light of their particular costs and benefits.[7] The objective is a shift from grand plans of social transformation to small victories that incrementally ameliorate material injustices.[8] Legal thinkers, Adler argues, should help reformers speculate in an informed fashion about the costs and benefits of possible reform strategies before reformers must make their leap into commitment or action to best help achieve the reasonably attainable small victories.[9] The methodology leaves us with no new theory, but it does end with a decision, she concludes.[10] Focusing specifically on queer studies in law and other disciplines, Professor Adler notes a quartet of distinct yet interrelated gaps relevant to this debate and its consequences for critical theory and emancipatory praxis, both for queer and other antisubordination causes: the first is the gap within rights discourses of LGBT rights[11]; the second is the gap within queer (legal) theory regarding this broader discussion of rights and law as viable instruments of justice for diverse sexual minorities[12]; the third is the gap between agenda-setting actors and critical theorists in queer groups or movements[13]; and the fourth is the gap between queer theory generally, across the humanities or other disciplines, and queer studies specifically within the law.[14] Working to fill these overlapping gaps, Professor Adler emphasizes the potential lessons for all critical legal theorists of queer socio-political experience, especially in the ongoing context of political backlash, legal retrenchment and cultural warfare.[15] Noting explicitly thatas currently with queer justice strugglesgaining even limited access to formal legal rights for historically subordinated outgroups sometimes/oftentimes generates regressive socio-political reaction,[16] Professor Adler argues that a real benefit of queer theory for the legal left . . . is in more fully assessing the cost of legal strategies in complex, multidimensional contexts.[17] Thus, while accepting indeterminacy at all levels of analysis and action,[18] Professor Adlers critical approach to agenda-setting again serves one main goal as applied specifically to contemporary queer struggles for social justice by or through law: Through diligent, even painstaking, attention to a broad array of legal conditions, the critical approach to agenda-setting developed here can be used to generate concrete law reform proposals that, while imperfect, neither replicate the deep problem of rights nor make themselves vulnerable to charges of nihilism.[19] To avoid those old kinds of charges against critical legal scholarship and sharpen its substantive social justice edge, Professor Adlers experiential and theoretical lesson from contemporary queer experience with law demands at bottom a hard-headed and pragmatic analysis, at all times and places, of liberational possibilities and struggles regarding law, rights and justice. This call to pragmatic incrementalism, Professor Adler explains, is necessary to make the expanding universe of queer theory socially and materially relevant to sexual minority legal issues: Queer theory has become voluminous, and much of it, while fascinating, I have notas a lawyerquite figured how (or whether) to use yet.[20] Not surprisingly, then, Professor Adler additionally calls on queer legal theorists (and by extension other critical scholars) to consider developing these kinds of concrete decisions, priorities, and strategies based on socio-legal categories or identities other than those which may be most salient personally or politically to the
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author in the case of queer theorists, identity categories other than those based on sexual orientation or gender identity. For example, Professor Adler illustrates, when addressing the conditions of homeless queer youth, a queer critical intervention might focus on all homeless youth, whatever their sexuality or gender identity.[21] [B]y intervening in these conditions, law reformers might be able to use law to affect the concrete reality lived by some of the most marginalized among the sexuality and gender constituenciesif they are willing to forego the gratifications of identify based reform, explains Professor Adler.[22] This call effectively highlights the continuing, perhaps growing, value of multidimensionalityanalysis and action that address holistically the intersections of multiple identities or categories in a particular socio-legal scenarioin the specific project of queer social justice.[23] This call likewise urges all critical antisubordination scholars to mix and match scholarly tools in the praxis of academic activism and rebellious knowledge production.[24] Perhaps more importantly, this call also underscores the unique potential of critical coalitions and legal praxis when different identities are caught in the patterns of particular injustices formed and framed by common or overlapping systems of privilege and marginalization.[25] Without doubt, this call to innovative, coalitional and socio-centric academic work is more urgent than ever in this era of unabated backlash. But Professor Adlers essay also leads the reader to three key questions about queer legal scholarship that remain pregnant, whether framed in decisional or reconstructive terms. The first question, focusing on background and history, asks: Whatever happened to queer legal theory or, how do the four gaps identified in the essay fit into our understanding of what queer theory within legal scholarship is today, after three decades of this work? The second question, focusing on practice and method, asks: How can critical outsider scholars best develop and deploy diverse legal criticalities to produce the small victories that Professor Adler eyesor, which best practices are best tailored to produce the critical approach to agenda-setting that a decisional emphasis would emplace? The third and final question, focusing on outcome and substance, asks: How do queers and allies know which normativity/ies should be adopted for a rigorous cost/benefit analysis under a decisional approach in any given settingor, what kind of underlying values will allow us to know which small victories to pursue, or when we have encountered one? These three questions help set the stage for the kinds of follow-up work that Professor Adlers call envisions, and they supply the framework for some brief closing thoughts hoping to kick the can of queer legal criticality just a bit further in the direction Professor Adler aims. The first question calls for (self-)critical reflection on the substantive and social paths or interventions of legal scholarship focused on sexual orientation from its origins in the 1970s to the present.[26] To be sure, LGBT legal scholarship is a vibrant field today,[27] but the twin gaps that Professor Adler identifies in her essay invite us to consider and assess self-critically the distinctions, if any, between LGBT scholarship and queer legal theory: Can queers and friends discern any unifying patterns or distinctive valences? If so, what decisional lessons should we draw in efficient pursuit of future small goals or victories? What have these three decades of work wrought to inform the ongoing processes of queer agenda-setting after critical rigor and redistributive analysis? The second question takes to the next level Professor Adlers urging that critical scholars of all stripes learn from the ongoing lessons specifically of queer experience in law and society. Of course, the multidimensional particularities of each concrete small contestation or skirmish over law, rights, and justice will make this exercise difficult in any given setting, in part because any particular choice or decision on strategy and/or tactics is likely to produce winners and losers within the relevant group, context, community, or coalition: Should, for instance, queer or other critical antisubordination advocates litigate military exclusionary policies like Dont Ask, Dont Tell, or should they agitate and/or lobby the politicians in Washington DC to enact repeal legislation?[28] Or neither? Based on queer experience, what is the best path to (small) victory? Are there any decisional lessons regarding strategy or tactics to be
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drawn from queer legal and political experience in Hawaii, Alaska, Vermont, Massachusetts, Iowa, California, and other states or localities across the country (and globe) regarding marriage equality since the 1990s?[29] Can queers and allies draw any comparative insights regarding critical approaches to agendasetting when we compare or contrast the marriage equality experience thus far in this country with the Dont Ask, Dont Tell experience over roughly the same period of time? Under Professor Adlers analysis, it is precisely this rigorous distributive analysis that is missing from the current equation, yet is needed to help reformers determine their objectives and guide their strategic approaches before taking the leap into commitment or action. So, what methodological insights can we draw structurally, if any, from the variegated experiences with cultural warfare and legal retrenchment against sexual minorities in recent decades that Professor Adler highlights in this essay? Finally, the third question asks how queers and friends might establish collective and collaborative substantive baselines that can serve as unifying visions or agendasvisions and agendas trained on small goals and victoriescapable of inspiring, mobilizing, and sustaining critical coalitions among diverse and divergent social groups in particularized struggles against common or interlocking oppressions. Though this query presents potentially theoretically unresolvable issues of perspective and subjectivity, Professor Adlers urgent call to decisional pragmatism after rigorous distributive analysis requires an operational resolution of this question for specific, contextualized decisions to be socially sharp in any particular time or place. Should, for example, queer advocates pursue the passage of the federal Employment Non-Discrimination Act even if its protections exclude transgendered members of our communities because doing so amounts to a small victory, or do we collectively reject this incremental progress as requiring the sacrifice of persons and principles?[30] Does the passage of such legislation amount to a small victory or a strategic sell-out? Can we agree on which decisional lessons and distributive dynamics each potential choice or compromise offers to queer causes, communities, and coalitions? While this short commentary cannot begin to scratch the surface of these closing queries, the point of ending with this forward-looking focus is to help train our critical faculties on the complicated yet crucial issues that Professor Adlers essay brings challenges us to promptly and deliberately confront. These closing queries, therefore, refer to specificand continuingcontestations in contemporary queer experience with law, rights, and justice in key concrete contexts of backlash, retrenchment, and warfare within and across the United States. In doing so, these queries ask how Professor Adlers call to redistributive decisionism could or should reshape the strategic and substantive pursuit of queer social justice in this country like the ones described here, as well as beyond: How, in short, do we apply Professor Adlers methodological or theoretical insights to tomorrows skirmishes? These closing queries thereby ask how diverse and divergent social groups or movements can best constitute and manage themselves as critical antisubordination coalitions, avoiding the pernicious devolution into mere interest convergence and the kinds of unruly, rickety alliances that such convergences tend to foster.[31] Of course, perhaps these closing queries simply reiterate timeless concerns. Professor Adlers essay reminds us all that antisubordination work is not only complex and multidimensional, but also specifically multi-leveled and oftentimes inefficient, fragmented, incomplete, and uncertain. Focusing critically yet pragmatically on innovative approaches to concrete agenda-setting and small redistributive victories can indeed improve lives incrementally and materially in the here and nowand, sometimes, these small victories also may add up to bigger reconstructive pay-offs. In sum, Professor Adlers provocative essay is a timely call to ever-sharper theory and praxis in the time of unabated reaction against civil rights for any traditionally subordinated group in this country, and a salutary intervention in the ongoing project of making theory work to help law right social wrongs for everyone.
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* Professor of Law, University of Miami. [1] Libby Adler, Gay Rights and Lefts: Rights Critique and Distributive Analysis for Real Law Reform, 46 Harv. C.R.C.L. L. Rev. Amicus __, 4 (2011), available at http://harvardcrcl.org/wpcontent/uploads/2011/02/Libby_Adler_Gay_Rights_And_Lefts.pdf (What has happened since the initial discussions among the various critical strands, both in the domain of law reform on behalf of LGBT-GNC people and in the evolution of queer theory, warrants revisiting the critique of rights with a fresh eye and a focus on issues of sexuality and gender. I do that here.). [2] For background, see Duncan Kennedy, A Critique of Adjudication (1997). [3] Critics of rights and critics of the critics were arguing on slightly different planes. Adler, supra note 1, at 6. [4] The methodology picks up not with reconstruction, in the sense of elaborating a new meta-theory of LGBT-GNC emancipation, but with more of what I hope will be a slightly improved (but no doubt improvable) distributive analysis, and will conclude in a decisionist posture, driving toward commitment to tangible law reform tasksnot because they promise total equality or emancipation in some other mode but because we are willing to accept their costs as the price of the benefits we hope they will bring, eyes wide open to the fact that we cannot be sure. Id. at 11. [5] Describing this approachand illustrating it with two concrete examples from recent scholarship Professor Adler calls for tangible and modest law reform tasks that are incrementally distributive and therefore reformist even if not totally reconstructive under a meta-theorized vision of emancipation. The crucial distinction between this methodology of decisionism and the existing methodology of reconstruction is that the role and contribution of the critical legal scholar extends from substantive justification for a specific item of law reform to a pre-decisional assessment of costs and benefits before any particular tasks or strategies are adopted or prioritized. Id. at 12-17. [6] When a work evaluates a modest legal option and attempts to trace its (positive and negative) implications throughout a complex distributive map, rather than offers a theoretically consistent push toward a shining telos on a hill, it might be hard to recognize that as reformist. Id. at 11. [7] The term is meant to urge law reformers to take responsibility for their choices after considering the widest possible array of factorsutilitarian as well as normativeand notwithstanding the likelihood that any singular justificatory theory they invoke might not hold up to critique. Id. at 2, n.6. [8] I count four elements to this decisional approach: (1) to shine a light and articulate concrete tasks that (2) lawyers can evaluate and realistically undertake assuming we (3) deem them good bets for improving the lives of marginalized people after concluding that they incur (4) acceptable cost levels. Id. at 10. [9] Id. at 12. [10] Id. at 18. [11] The critique of rights has a history that does not have much to do with the rights of LGBT-GNC people. Id. at 2. [12] Even now that there is a burgeoning literature on LGBT-GNC legal issues, my research turned up no
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fully elaborated discussions of the critique of rights in that context. Id. at 3. [13] An analogous, sharp disconnection exists between those engaged in the ongoing architecture of the gay rights agenda and those writing in queer and other critical traditions. Id. at 4. [14] Queer theory comes to us from the humanities but it has yielded a number of concepts and critiques that could be valuable to legal thinkers . . . . A few legal writers have attempted to import some of the ideas associated with queer theory into legal analysis, and I have tried to do so myself, but regretfully the process of migration has been slow-going and the wealth of insight available to legal thinkers has gone terribly underutilized. Id. at 7. [15] For background readings on backlash, retrenchment, and cultural warfare, see Francisco Valdes, Beyond Sexual Orientation in Queer Legal Theory: Majoritarianism, Multidimensionality and Responsibility in Social Justice Scholarship Or, Legal Scholars as Cultural Warriors, 75 Denver U. L. Rev. 1409 (1998); Kenneth Karst, Religion, Sex, and Politics: Cultural Counterrevolution in Constitutional Perspective, 24 UC Davis L. Rev. 677 (1991); Kimberle Crenshaw, Race, Reform, and Retrenchment: Transformation and Legitimation in Antidiscrimination Law, 101 Harv. L. Rev. 1331 (1988). [16] On the LGBT-GNC frontier of the culture war, assertion of an equality right often seems to provoke the generation of a countervailing right, and this provocation can do quite a bit of damage. Adler, supra note 1, at 5. [17] Id. at 8. [18] The indeterminacy of law is perhaps the most familiar crit thesis . . . In the end, we make the leap into commitment or action . . . [even if] we dont believe we can demonstrate the correctness of our choices . Id. at 5, 12 (citing to Kennedy, supra note 2, at 361-62). [19] Id. at 5. [20] Id. at 8, n.56. [21] Id. at 16. [22] Id. [23] For background readings on multidimensionality and related concepts in critical legal theory and praxis, see Kimberle Crenshaw, Mapping the Margins: Intersectionality, Identity Politics, and Violence Against Women of Color, 43 Stan. L. Rev. 1241 (1991) (on intersectionality); Angela Harris, Race and Essentialism in Feminist Legal Theory, 42 Stan. L. Rev. 581(1990) (on anti-essentialism); Mari J. Matsuda, When the First Quail Calls: Multiple Consciousness as Jurisprudential Method, 11 Womens Rts. L. Rep. 7 (1989) (on multiplicity). Various RaceCrit and LatCrit scholars have developed these and similar concepts, striving progressively to better capture the dynamics of identity politics in law and society. See, e.g., Peter Kwan, Complicity and Complexity: Cosynthesis and Praxis 49 DePaul L. Rev. 673 (2000) (on cosynthesis); e. christi cunningham, The Rise of Identity Politics I: The Myth of the Protected Class in Title VII Disparate Treatment Cases, 30 Conn. L. Rev. 441 (1998) (on wholism); Darren Hutchinson, Out Yet Unseen: A Racial Critique of Gay and Lesbian Legal Theory and Political Discourse, 29 Conn. L. Rev. 561 (1997) (on multidimensionality); Francisco Valdes, Sex and Race in Queer Legal Culture: Ruminations on Identities and Inter-Connectivities, 5 S. Cal. Rev. L. & Womens Stud. 25 (1995)
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(on interconnectivity); Berta Hernandez-Truyol, Building BridgesLatinas and Latinos at the Crossroads: Realities, Rhetoric and Replacement, 25 Colum. Hum. Rts. L. Rev. 369 (1991) (on multidimensionality). [24] See generally Francisco Valdes, Rebellious Knowledge-Production, Academic Activism, & Outsider Democracy: From Principles to Practices in LatCrit Theory, 1995 to 2008, 8 Seattle J. Soc. Just. 131 (2010) (on rebellious knowledge-production); Margaret E. Montoya & Francisco Valdes, Latinas/os and Latina/o Legal Studies: A Critical Review of Legal Knowledge-Production Models, 4 Fla. Intl U.L. Rev. 184 (2008) (on mix and match); Jerry Lopez, Rebellious Lawyering: One Chicanos Vision of Progressive Law Practice (1992) (on rebellious lawyering). [25] See generally Eric Yamamoto & Julie Su, Critical Coalitions, in Critical Race Theory: Histories, Crossroads, Directions (Francisco Valdes, Jerome McCristal Culp, Jr. & Angela P. Harris eds., 2002) (providing a discussion and concrete example of critical coalitions at work); Francisco Valdes, Outsider Scholars, Legal Theory and OutCrit Perspectivity: Postsubordination Vision as Jurisprudential Method, 49 DePaul L. Rev. 101 (2000) (on post-subordination work); Francisco Valdes, Theorizing OutCrit Theories: Coalitional Method and Comparative Jurisprudential ExperienceRaceCrits, QueerCrits and LatCrits, 53 U. Miami L. Rev. 1265 (1999) (on critical coalitions and academic activism). [26] See generally Francisco Valdes, Queer Margins, Queer Ethics: A Call to Account for Race and Ethnicity in the Law, Theory and Politics of Sexual Orientation, 48 Hastings L. J. 1193 (1997) (reviewing this history). [27] See, e.g., Feminist and Queer Legal Theory: Intimate Encounters, Uncomfortable Conversations (Martha Albertson Fineman, Jack E. Johnson & Adam P. Romero eds., 2009); The Williams Institute, UCLA School of Law, http://www2.law.ucla.edu/williamsinstitute/home.html (last visited Feb. 26, 2011). [28] Both approaches were pursued, with vigorous disagreement, until the exclusionary policy formally was terminated by Congressional repeal in the lame-duck session following the 2010 mid-term elections. For background, see Sheryl Gay Stolberg, Obama Signs Away Dont Ask, Dont Tell, N.Y. Times, Dec. 23, 2010, http://www.nytimes.com/2010/12/23/us/politics/23military.html; Sandhya Somashekhar, U.S. Appeals Ruling on Gay Air Force Major, Wash. Post, Nov. 25, 2010, at A02; John Schwartz, Military Policy on Gays to Stand, Pending Appeal, N.Y. Times, Nov. 2, 2010, at A21; John Schwartz, California: Judge Signals Shell Let Ruling on Military Policy Stand, N.Y. Times, Oct. 19, 2010, at A20; John Schwartz, Awaiting the Next Step On Policy on Gay Service, N.Y. Times, Oct. 14, 2010, at A23. [29] All of these states have acted on marriage equality in recent years but with different approaches or strategiesand producing different results. For background, see Joe Garofoli, Prop. 8 Must Pick Path for 2010, S.F. Chron., Aug. 10, 2009, at A1; David G. Savage, No Trend Toward Gay Marriage Foreseen; Experts Say Few States will Follow California in Legalization Unions, L.A. Times, May 26, 2008, at A10; Carolyn Lochhead, Massachusetts Court Allows Gay Marriage; Bush says Hell Fight for Constitutional Ban on Unions, S.F. Chron., Nov., 19, 2003, at A1; Stacy A. Teicher, Ruling Will Stir States on Same-Sex Marriages, Christian Science Monitor, Dec. 22, 1999, at 2; David Tuller, Making Waves, S.F. Chron., June, 23, 1996 at 1/Z3. [30] This precise disagreement split sexual minority advocates and allies working together on this legislation. For background, see Ian McCann & Brandon Formby, Discrimination Leaves the T out of GLBT, Dallas Morning News, Nov 13, 2007, at 20; Shailagh Murray, Quandary Over Gay Rights Bill: Is It Better to Protect Some of None?, Wash. Post., Oct. 18, 2007 at A23; Carolyn Lochhead, Gays Angered by
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Scaled-Back Rights Bill, S.F. Chron., Oct. 2, 2007, at A1. [31] See generally Derrick A. Bell, Brown v. Board of Education and the Interest-Convergence Dilemma, 93 Harv. L. Rev. 518 (1980) (on interest convergence). Sarah Valentine Associate Professor of Law at City University of New York Assimilating Our Children: The Problems and Dangers of Identity-Based Reform for Queer Youth Sarah Valentine
In her article Gay Rights and Lefts, Professor Adler continues her challenge to the overwhelmingly rightsbased and identity-focused GLBT law reform movement. As one of her examples, she describes how a more careful and targeted legal approach that seeks to provide minors with more contractual autonomy might remove one of the barriers to housing for queer,[i] homeless youth. The example is effective and I hope it sparks an exploration of whether such reform is possible. In this comment, I want to highlight some of the specific problems and dangers that identity- and rights-based lawyering pose for queer youth. Not only does this reigning approach to law reform have little to offer queer youth, but its inherently assimilationist presuppositions also undermine the flexibility and autonomy that this population requires to flourish. Such a problematic dependence on the largess of the State in doling out rights is emblematic of the GLBT movements embrace of litigation as a replacement for community-based activism, a move that has real consequences for queer youth. Although not all queer youth are victims, as a whole they are one of the most marginalized and maltreated populations in the United States. Unfortunately, their mistreatment is often based on the intersection of many factors: perceived sexuality, gender nonconformity, age, lack of autonomy, race or ethnicity, gender, class, or mental capacity. The abuse that they face may occur at home, in the community, in school, in the juvenile justice and child welfare systems or in all of these arenas. For youth targeted because they are queer, the obstacles and violence they face are simultaneously systemic and individualized in the sense that they are inseparable from other aspects of their identity. The further they stray from the societys view of what is normal or ideal, the more likely they are to face abuse and violence. This is exemplified by the States aggressive policing of gender-transgressive, nonwhite, and homeless youth populations. Broad overarching legal arguments built on identity are essentially worthless to protect children whose identities are so complex and irreducible. Unfortunately, these arguments, built as they are on the bedrock of unquestioning assimilation, are also dangerous to queer youth. As Ruthann Robson has noted, assimilationthe process by which people are normalized into society requires a highly idealized dominant group, which becomes the measure of successful attainment of equality.[ii] In her critique of same-sex marriage, Robson cautions that the quest for assimilation creates an unthinking adoption of the interests of the nation- state as well as an unprotected and threatened group of queers who cannot or will not assimilate. Adler references similar arguments in Gay Rights and Lefts and explores them more fully in her piece discussing the dangers inherent in the GLB equal-rights movement for
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the transgendered.[iii] The harms articulated by these arguments are not merely speculative or theoretical and they will have an disproportionate impact on queer youth. The one characteristic that all queer youth share is their age, which limits their legal protections and at the same time provides the State with the argument that it has an obligation to control and modify their behavior by force if necessary. Anything that further solidifies the constricted boundaries of what will be considered normal for human behavior only does violence to the potentiality that is queer youth. This is exceptionally clear in our K12 educational institutions, which have as one of their main functions the assimilation of American children into acceptable (normal) adults. Unfortunately, schools are often battlegrounds of the culture wars and are a good example of Adlers suggestion that assertions of equality rights often provoke the generation of countervailing rights. The overwhelming heterosexual nature of education is inherently violent to queer youth. Attempts to include positive information about sexual differences or gender nonconformity in the curriculum are generally met with protestations based on parental rights to control their childrens education. Success at providing more inclusive education programs has come not through litigation but through long-term community education and activism, sometimes, though not always, coupled with litigation. Even when the State has agreed to recognize and protect queer youth, it has often done so in a manner that protects only those youth the State selects as the least disruptive or different. Thus, schools often adopt zero-tolerance policies that include prohibiting harassment based on perceived sexuality. While seemingly positive, these policies often criminalize a broad range of behavior and allow school administrators unilaterally to remove difficult students from a potentially redemptive environment of education and engagement. It is essential that the next generation of students be taught to welcome each others differences. Unless anti-harassment policies are coupled with school and community programs that positively engage with issues of adolescent sexuality in an inclusive manner, they actually do little to address the underlying causes of violence against those perceived as different. Supporting queer youth requires far more than litigation and law reform. It takes long-term community education and requires buy in from community groups who champion the many identities a queer child possesses. We must approach discrimination and violence against queer youth as a public health problem and seek community-based solutions as varied and diverse as the problems our children confront.[iv] Although carefully targeted litigation such as that described by Adler is one of the many tools at our disposal, we cannot litigate our way out of the horrid environment that we have created for our children. Those seeking to assist queer youth must realize that broad attempts at law reform are not just ineffective in assisting this population, but can be downright dangerous. They reify the status quo and demonize those who cannot assimilate, many of whom will be the least able to protect themselvesqueer youth.
[i] This is my term, not hers. I define queer or sexual-minority youth as minors who either self-identify as, or are perceived and targeted for being, lesbian, gay, bisexual, transgender, or gender nonconforming. [ii] See Ruthann Robson, Assimilation, Marriage, and Lesbian Liberation, 75 Temple L. Rev. 709 (2002). [iii] Libby Adler, T. Appending Transgender Equal Rights to Gay, Lesbian and Bisexual Equal Rights, 19 Colum. J. Gender & L. 595 (2010). [iv] Sarah Valentine, Supporting Queer Youth, in Justice For Kids: Keeping Kids Out Of The Juvenile
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Justice System (Nancy Dowd, ed. forthcoming N.Y.U. Press fall 2011). Anthony E. Varona Professor of Law and Associate Dean, Academic and Faculty Affairs, American University Washington College of Law
DifferentiatingEquality [i] ByAnthonyE.Varona WhatapleasureitwastoreadProfessorLibbyAdlersexcellentandrichlyprovocativedraftofGayRightsandLefts:RightsCritiqueandDistributiveAnalysisforRealLaw [ii] Reform. LonganadmirerofProfessorAdlerswork,andafriend,IwasespeciallypleasedtoseehowthisarticleconstitutesaculminationofLibbysworkindiagnosingthe infirmitiesafflictingtheLesbian,Gay,Bisexual,andTransgender(LGBT)rightsmovementsequalityorientedapproachtoactivism.IalsowasexcitedbyhowLibbyspiece isacontinuationofhermorenascentworkonanewagendaforthemovementthatpromisestodeliveramoreinclusive,liberatingrealityforallmembersoftheLGBT communityarealitythattheachievementoftheformallegalequalitydemandedbymostofourmovementleadersisaltogetherincapableofdelivering. HereareafewthoughtsthatmayamplifyandperhapsevenchallengesomeofLibbysideasinGayRightsandLefts:
. Libbys brief discussion of the critical legal studies movement and its race crit and fem crit challengers may benefit from a reference to the early and subsequent work of LatCrit (Latino/a Critical Legal Theory) scholars. Some of LatCrits founders, such as openly gay Professor Francisco Valdes (University of Miami), infused the early scholarship of the LatCrit movement (written in the early 1990s) with gay/queer crit themes and positioned LatCritical scholarship as both a critic and ally of queer legal
LatCrit
theory. Professor Valdes work, and that of other LatCrit founders and more recent contributors, explored the commonalities between the two critical movements as well as the frictions, which often were caused or exacerbated by racism, classism and/or xenophobia within the dominant white queer crit leadership as well as the broader LGBT rights movement. v. Equality. An important contribution of Professor Adlers project, of which Gay Rights and Lefts is an important part, is her meticulous analytical deconstruction of the LGBT rights movements modern insistence on formal equalityon rights-based legitimacyas the overarching goal of the movements agenda. The movements shift from valorizing differentiation to insisting on assimilation could not have been made more vivid than in the rebranding in the mid-1990s of the Human Rights Campaign (HRC), the nations largest LGBT civil rights organization (known as the Human Rights Campaign Fund until
Liberty
[iii]
1997). In addition to dropping the Fund from its name, HRC changed its logo from a stylized version of the Statue of Libertys torch to the typographical equality symboli.e., the = sign. The movement or at least its most prominent national organizationwent from demanding liberty to demanding equality. We progressed from wanting to be left alone in our difference, to wanting affirmative legal recognition of our purported equality. Let us be became let us in.
Thisshifthadmuchtojustifyandvalidateit.Thelibertyrubricistightlyintertwinedwiththerighttoprivacy,andthestillpredominantlyclosetedgayAmericansofthelatter decadesofthetwentiethcenturywantedtobefreetobegayinprivate.Homosexualconduct,afterall,wasstillsubjecttocriminalpenaltiesinmanypartsofthecountry. Homes,families,jobs,andlibertyitselfwereatstake.WiththeAIDScrisiscameamorepublicfacetothecommunityandthewidespreadopeningofclosetdoors.With visibilitycamegreateracceptance.Andwithgreateracceptancecameabolder,moredeliberateandinsistentstrategytoachievelegalandpoliticalequality.Afterall,weare entitledtoalltherightsandfreedomsenjoyedbyallotherAmericans:Freedomfromemploymentandhousingdiscrimination.Therighttomarry.Therighttoadopt.Etc. ButasLibbysobrilliantlydemonstratesinherwork,theinsistenceonequalitybothasacharacterizationofLGBTrealityaswellasaformallegalreformprojectcomesat greatcost.Towhomareweequal?Whoarewecomparing?Whorepresentsgay,lesbian,bisexual,andtransgenderascontrastedagainstthestraightnorm,ifsuch athingevenexists?AndwhatofthosemembersoftheLGBTcommunitywhoarequeerevenwithintheLGBTcommunityitself?
[iv]
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. In the end, Professor Adlers article helps reinforce my belief that formal legal equality, while important and deserved, cannot be the totality of the LGBT movements agenda. In fact, our focusing exclusively on making those demands through rights-based rhetoric and legal argumentation impedes our progress towards both formal legal equality and legitimate, complete inclusion in the fabric of society. As Libby documents, having the law say that we are equal does not, in the end, make us so. This is, after all, why at the heart of our battles against the anti-gay (and specifically anti-same-sex marriage) ballot initiatives lies a paradox. Despite the constitutional illegitimacy of subjecting the fundamental rights of gay Americans to popular vote, a popularly conferred right offers the cultural and social endorsement that a right gained by a countermajoritarian assertion of formal legal equality lacks. Jonathan Rauch has written eloquently about this conundrum:
BeyondLegalReform Lawisonlypartofwhatgivesmarriageitsbindingpower;communitysupportandsocialexpectationsarejustasimportant.[A]gaycouplesmarriagecertificate,while [v] providinglegalbenefits,wouldconfernosocialsupportfromtheheterosexualmajority. [vi] ThisiswhytheworkoforganizationsliketheGayandLesbianAllianceAgainstDefamation(GLAAD), whichisfocusedonculturalchangeinfavorofthefullinclusionof andequalityforLGBTAmericans,isimportantincomplementingandspurringthemovementsformalrightsclaims.Effortstowardslegalreformandculturalreformmust gohandinhand. IcongratulateProfessorAdlerforaninnovative,enriching,andimportantarticlethatwillgeneratemuchthinking,and(hopefully)reform,foryearstocome.
[i]
Professor of Law and Associate Dean, Academic and Faculty Affairs, American University Washington College of Law. I thank the editors of the Harvard Civil
Rights-Civil Liberties Law Review, and especially Victoria Baranetsky, for this opportunity. [ii] Libby Adler, Gay Rights and Lefts: Rights Critique and Distributive Analysis for Real Law Reform, 46 Harv. C.R.C.L. L. Rev. Amicus __, 4 (2011), available at http://harvardcrcl.org/wp-content/uploads/2011/02/Libby_Adler_Gay_Rights_And_Lefts.pdf. [iii]
See generally, e.g., Francisco Valdes, Queers, Sissies, Dykes, and Tomboys: Deconstructiong the Conflation of Sex, Gender, and Sexual Orientation in
Euro-American Law and Society, 83 Cal. L. Rev. 1 (1995); Francisco Valdes, ForewordLatina/o Ethnicities, Critical Race Theory, and Post-Dentity Politics in Postmodern Legal Culture: From Practices to Possibilities, 9 La Raza L.J. 1 (1996). [iv]
I served as HRCs first general counsel and legal director from 1997 through 2002, and then as a member of its board of directors from 2002 through 2006.
[v]
Jonathan Rauch, A More Perfect Union, Atlantic Monthly, April 2004, at 88.
[vi]
I have been a member of GLAADs board of directors since 2007.
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[xxxviii] Othersnoticed,however,thatrightscouldjustaseasilypromptalossofcollectivity. Aftertheachievementof formalequality,whichislikelytoleavethemostdisadvantagedsegmentsofacommunitybehind,itmightbemoredifficult [xxxix] tounifyeveryoneinagroupbehindacommonpoliticalobjective.

[lvii] Afewlegalwritershaveattemptedtoimportsomeoftheideasassociatedwithqueertheoryintolegalanalysis, andI [lviii] havetriedtodosomyself, butregretfullytheprocessofmigrationhasbeenslowgoingandthewealthofinsight

Backonthefirsthand,however,ifminorscannotgetcredit,thentheyhavenoopportunitytodevelopagood credithistory, [cxi] either.Thiscoulddisadvantagethemwhentheytrytorentanapartment.

See id. at 295-96.

Rights, 19 Colum J. Gender & L. 595 (2010) (hereinafter: T).

This is not a resentful remonstration, merely an observation.

Tushnet, supra note 9, at 1364-71.

See Olsen, supra note 9, at 387.

Delgado, supra note 10, at 304. Id. at 305.

See Crenshaw, supra note 10, at 117-118.

See Ronald Dworkin, Laws Empire 238-241 (1986).

Crenshaw, supra note 10, at 110.

See Jonathan Ned Katz, The Invention of Heterosexuality (1995).

See, e.g., The Gay Agenda, supra note 4 at 161-72, 179-97.

Delgado, supra note 10 at 305.

See id. at 618-19.

See id. at 619.

See id. See id. See id. at 620.

T, supra note 4 at 612-13.

[cii] [ciii] [civ] [cv]

See id. at 569. See id. at 620.

womendonothaveagencyinsexworkrather,sexworkisaproductofcoercionandviolence. AccordingtoKotiswaran,theoppositionalpositionadvocatesforsexworkerindividualismand autonomyhesuggeststhispositionisundertheorizedandthatitdoesnotadequatelyexamineissuesof

[ii] DarrenRosenblum, QueerIntersectionalityandtheFailureofLesbianandGayVictories, 4Law&Sexuality83(1994).IwrotethatArticlewithguidancefrom RuthannRobsonandKendallThomas.

I have been a member of GLAADs board of directors since 2007.

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