Homosexuality, Politics, and the Law, Misc

The article analyzes the legislative issues on equal marriage in P. R. China. It adopts a path dependency analysis on the liberal institutional order’s effects to the regime’s structural discrimination on the lesbian, gay, bisexual, and transgender (LGBT) population. The research adopted a duo-lingual paradigm on Christianity with intercultural and transnational interpretations, and the research found the mis-adaption of language in the Chinese text of the United Nations charter is the key source to the suppression of the LGBT population in (...) mainland China. Furthermore, theological development for sexually diverse interpretations of the Bible is essential to mitigate the stigmatization of the LGBT population on a comparative constitutional review. (shrink)

SPANISH: Las parejas del mismo sexo tienen razón cuando dicen que negarles el matrimonio es discriminar contra ellas; pero otorgar el matrimonio a las parejas del mismo sexo sin dar a familias no conyugales los beneficios que el matrimonio provee remediaría la injusticia hacia las primeras sin subsanar la iniquidad hacia las segundas. Crear una sociedad que favorece solo una opción para reconocer las relaciones de serio compromiso no debe ser la meta de un movimiento progresista. -/- ENGLISH: Same-sex couples (...) are right when they say that denying them marriage is discriminating against them; but granting marriage to same-sex couples without giving non-marital families the benefits marriage provides would remedy the injustice towards the former without correcting the iniquity towards the latter. Creating a society that favors only one option to recognize committed relationships should not be the goal of a progressive movement. -/- . (shrink)

With the recent U.S. Supreme Court cases finding the Defense of Marriage Act unconstitutional and removing impediments to same-sex marriage in California,as well as a number of recent successes in special elections and with legislators inthe U.S. and other countries, we might wonder whether there is still need for a book debating same-sex marriage. Is not the tide of history inevitably movingtowards marriage equality? While that position seems tempting, it is too quick.

My paper is a reaction to polemic of Tomasz Sieczkowski "Discrimination nonetheless. A reply to Krzysztof Saja” [ICF "Diametros" (36) 2013] that he wrote against my paper "Discrimination against same-sex couples" [ICF “Diametros" (34) 2012]. The purpose of the paper is to refute Sieczkowski’s objections that rely on wrong interpretation of the structure of my main argument. I will describe the proper course of the reasoning that I have expressed in the first article and undermine the Sieczkowski’s proposal to justify (...) gay marriages by referring to values such as dignity, freedom and equality. (shrink)

There is a need to develop libertarian responses to writings on race, gender, and sexual orientation. Offering such responses not only demonstrates to potential opponents of libertarian reform that libertarianism can seriously address these issues: libertarian responses can also help us confront forms of “private” oppression that are not per se un-libertarian, but which support state oppression. Drawing on thinkers such as Murray Rothbard, Roderick Long, Charles Johnson, Gene Sharp, Wendy McElroy, and bell hooks, this paper establishes historical links between (...) the intellectual traditions of feminism, nonviolent action, and libertarianism, and explores what a nonviolent, libertarian resistance to patriarchy might look like. By demonstrating the analogies between Sharp’s and Rothbard’s theories of political power and hooks’ theory of patriarchy, this paper shows that Sharp’s techniques for resistance to state tyranny can be adapted for use against patriarchal oppression. (shrink)

This paper draws on findings from qualitative interviews with queer and trans patients and with physicians providing care to queer and trans patients in Halifax, Nova Scotia, Canada, to explore how routine practices of health care can perpetuate or challenge the marginalization of queers. One of the most common “measures” of improved cultural competence in health care practice is self-reported increases in confidence and comfort, though it seems unlikely that an increase in physician comfort levels with queer and trans patients (...) will necessarily mean better health care for queers. More attention to current felt discomfort in patient–provider encounters is required. Policies and practices that avoid discomfort at all costs are not always helpful for care, and experiences of shared discomfort in queer health contexts are not always harmful. (shrink)

We take up questions of passing/outing as they arise for those with queer femme identities. We argue that for persons with female-identified bodies and queer, feminine (‘femme’) gender identities, the possibilities above may not exist as distinct options: for example, what it means to ‘pass’ or ‘cover’ is not always distinguishable – conceptually or in practice – from living authentically and resisting heteronormative identification: i.e. the conditions of being ‘out’. In some ways, these conflations privilege queer femmes; in others, femmes (...) find themselves implicated in a political double bind. We contend that this example problematizes the very concepts of passing and outing, and the political and ethical demands that are taken to arise from them. We conclude by exploring what it means to live queer femme identity responsibly and what this means for the ethics of sexual identity more generally. (shrink)

John Rawls’s political liberalism and its ideal of public reason are tremendously influential in contemporary political philosophy and in constitutional law as well. Many, perhaps even most, liberals are Rawlsians of one stripe or another. This is problematic, because most liberals also support the redefinition of civil marriage to include same-sex unions, and as I show, Rawls’s political liberalism actually prohibits same- sex marriage. Recently in Perry v. Schwarzenegger, however, California’s northern federal district court reinterpreted the traditional rational basis review (...) in terms of liberal neutrality akin to Rawls’s “public reason,” and overturned Proposition 8 and established same-sex marriage. (This reinterpretation was amplified in the 9th Circuit Court’s decision upholding the district court on appeal in Perry v. Brown.) But on its own grounds Perry should have drawn the opposite conclusion. This is because all the available arguments for recognizing same-sex unions as civil marriages stem from controversial comprehensive doctrines about the good, and this violates the ideal of public reason; yet there remains a publicly reasonable argument for traditional marriage, which I sketch here. In the course of my argument I develop Rawls’s politically liberal account of the family by drawing upon work by J. David Velleman and H. L. A. Hart, and discuss the implications of this account for political theory and constitutional law. (shrink)

In my paper I discuss the argument that the absence of the legal possibility to contract same-sex marriages is discriminatory. I argue that there is no analogy between the legal situation of same-sex couples and African-Americans, women or disabled persons in the nineteenth century. There are important natural differences between same-sex and different-sex couples that are good reasons for the legal disparities between them. The probability of having and raising children is one of them. Therefore, demanding that same-sex couples have (...) rights similar to those that married couples currently have in Poland and justifying that claim by alleged discrimination is neither correct nor fair. (shrink)

This essay analyzes the coherency and reasonableness of legal restrictions against same-sex marriage. The population of focus is transgender individuals and their partners. Focusing on trans-marriage makes clear that the restriction of marriage to one man and one woman is misguided in that the law rests on the assumption that the categories of sex and gender comprise two disjoint, exhaustive, and unambiguous groupings. The primary argument here is not that the restrictions of same-sex marriage are harmful to certain transpersons who (...) participate in legal marriage, although they certainly are, but rather that this legal restriction fails to meet the minimum requirements of any reasonable law. This analysis compares the current marriage restriction and its reliance on the above mentioned false belief with judgments of the Race Classification Appeal Board of Apartheid era South Africa. I employ two actual cases and the legal philosophy of Lon L. Fuller in my argument. (shrink)

ESPAÑOL: Similar a Baehr v. Miike en Hawaii (1993), Goodridge fue la primera decisión de un tribunal supremo estatal en Estados Unidos que concluyó que las parejas del mismo sexo tienen derecho al matrimonio. La traducción contiene los segmentos más importantes de Goodridge. ENGLISH: Similar to Baehr v. Miike in Hawaii (1993), Goodridge was the first time a state Supreme Court in the United States ruled that same-sex couples have the right to marry. The translation (English to Spanish) contains Goodridge’s (...) key passages. (shrink)

ESPAÑOL: Traducción de segmentos de los capítulos 1 y 6 del libro de Evan Wolson’s Why Marriage Matters: America, Equality, and Gay People’s Right to Marry. (New York: Simon and Schuster, 2004). ENGLISH: Translation (English to Spanish) of segments from chapters 1 and 6 of Evan Wolfson’s Why Marriage Matters: America, Equality, and Gay People’s Right to Marry. (New York: Simon and Schuster, 2004).

: In this essay, Feigenbaum examines heterosexism as it functions politically and interpersonally in her own experience. She loosely traces her analysis along the current political climate of the bans on same-sex marriages, using this discussion to introduce and illustrate how heterosexual dominance functions. The author aims throughout to clarify what heterosexism looks like "in action," and she moves toward providing steps to recognize, name, interrupt, and counter heterosexist privilege.

In this paper I argue that anyone who accepts a Rawlsian account of justice should favor granting family-based immigration benefit to same-sex couples. I first provide a brief over-view of the most relevant aspects of Rawls's position, Justice as Fairness. I then explain why family-based immigration benefits are an important topic and one that everyone interested in immigration and justice must consider. I then show how same-sex couples are currently systematically excluded from the benefits that flow from family-based immigration rights. (...) Next I argue that people in the constitutional and legislative stages of Rawls's original position would act to protect family-based immigration rights for themselves and show how these rights are rights of the current citizens of a state to bring in certain outsiders and not rights of outsiders seeking to enter. Importantly, this argument takes place entirely within the bounds of Rawls's domestic theory of justice and does not make reference to his more controversial views found in his account of international justice. I then show that there is no acceptable reason to restrict these rights to opposite-sex couples and good reason to extend them to same-sex couples. Finally I consider two objections to my account and show why they do not threaten my conclusion. (shrink)

In many ways, the struggle for gay and lesbian rights has come of age, and mainstream politics in the USA shows signs of embracing the votes and monetary contributions of organized gay and lesbian constituents. But the author warns that a movement for sexual liberation pays too high a price when it mimics a conservative language of “family values.” Since the framework of “family” language is implicated in structures of heteronormativity and patriarchy, sexual liberation that plays the “family language” game (...) will be drawn into a narrowing politics of nondiscrimination. Furthermore, argues the author, the right to marry cannot be considered a human right, since it is always bound to local statutes and custom. Therefore, gay and lesbian liberation that seeks truly universalizable principles will do better to not ensnare its struggle in “family values.”. (shrink)

After stating "I am gay" Navy Lieutenant Paul G. Thomasson was honorably discharged from the military. In Thomasson v. Perry (1996), the United States Court of Appeals for the Fourth District affirmed Thomasson's discharge. Thomasson is now considered the leading case evaluating the U.S. military's "don't ask, don't tell" policy. In this paper, I show that the court's analysis of the Department of Defense policy rests of two unarticulated and undefended assumptions about sexuality. The first is that an act of (...) sex is essentially defined in terms of the sexual orientation of the persons engaging in that act. The second is that whether or not a person is an open homosexual determines the essential nature of the homosexual acts of others. I conclude that both assumptions are untenable, therefore the "don't ask, don't tell" policy is indefensible. (shrink)

How has feminism failed lesbianism? What issues belong at the top of a lesbian and gay political agenda? This book answers both questions by examining what lesbian and gay subordination really amounts to. Calhoun argues that lesbians and gays aren't just socially and politically disadvantaged. The closet displaces lesbians and gays from visible citizenship, and both law and cultural norms deny lesbians and gay men a private sphere of romance, marriage, and the family.

This is a critical review of the book Legally Wed: Same Sex Marriage and the Constitution, by Mark Strasser. It discusses the book as well as legal cases and legal and moral reasoning relevant to deciding against the Constitutionality of prohibitions of same sex marriage. Such prohibitions were operative in states until the 2015 landmark U.S. Supreme Court decision in Obergefell v. Hodges struck them down and upheld a fundamental right to marry for same sex couples.

The Unfinished Revolution compares the post-Second World War histories of the American and British gay and lesbian movements with an eye toward understanding how distinct political institutional environments affect the development, strategies, goals, and outcomes of a social movement. Stephen M. Engel utilizes an electic mix of source materials ranging from the theories of Mancur Olson and Michel Foucault to Supreme Court rulings and film and television dialogue. The two case study chapters function as brief historical sketches to elucidate further (...) the conclusions on theory and whilst being politically-oriented, they also examine gay influence and expansion into mainstream popular culture. The book also includes an appendix that surveys and assesses the analytical potential of five critical understandings of social movements: the classical approach, rational choice, resource mobilization, new social movement theories, and political opportunity structures. It will be of value to academics and students of sociology, political science, and history. (shrink)

Throughout history, women and men have been seen as "opposites" in various respects. Examples from the writings of political theorists illustrate this point, while Virginia Woolf is shown to have departed radically from the general tendency to dichotomize sexual difference. Further, this "need" to dichotomize sexual differences contributes to anxiety about and stigmatization of homosexuality. As the social salience of gender becomes reduced, it is to be expected that hostility to homosexuality will decline.

This essay argues that the material conditions of capitalist patriarchal societies are more integrally linked to institutionalized heterosexuality than they are to gender. Building on the critical strategies of early feminist sociology through the articulation of a materialist feminist theoretical framework, the author provides a critique of contemporary sex-gender theory. She argues that the heterosexual imaginary in feminist sociological theories of gender conceals the operation of heterosexuality in structuring gender and closes off any critical analysis of heterosexuality as an organizing (...) institution.... every sociological concept and thesis, as well as the overall patterning of these concepts and theses, is potentially open for reconsideration... With the emergence of feminist sociological theory, the critical emphases in sociology are strengthened by an insistence that sociological work be critical and change-oriented... in an intensely reflexive way towards sociology itself (Lengermann and Niebrugge-Brantley 1990:318). We must produce a political transformation of the key concepts, that is of the concepts which are strategic for us (Wittig 1992:30). (shrink)

Gay Ethics is an anthology that addresses ethical questions involving key moral issues of today--sexual morality, outing, gay and lesbian marriages, military service, anti-discrimination laws, affirmative action policies, the moral significance of sexual orientation research, and the legacy of homophobia in health care. It focuses on these issues within the social context of the lives of gay men and lesbians and makes evident the ways in which ethics can and should be reclaimed to pursue the moral good for gay men (...) and lesbians. Gay Ethics is a timely book that illustrates the inadequacies of various moral arguments used in regard to homosexuality. This book reaches a new awareness for the standing and treatment of gay men and lesbians in society by moving beyond conventional philosophical analyses that focus exclusively on the morality of specific kinds of sexual acts, the nature of perversion, or the cogency of scientific accounts of the origins of homoeroticism. It raises pertinent questions about the meaning of sexuality for private and public life, civics, and science.Some of the issues covered: Sexual Morality Outing Same-Sex Marriage Military Service Anti-Discrimination Laws Affirmative Action Policy The Scientific Study of Sexual Orientation Bias in Psychoanalysis Homophobia in Health Care Gay Ethics presents a wide range of perspectives but remains united in the common purpose of illuminating moral arguments and social policies as they involve homosexuality. The chapters challenge social oppression in the military, civil rights, and the social conventions observed among gay men and lesbians themselves. This book is applicable to a broad range of academics working in gay and lesbian studies and because of its current content, is of interest to an educated lay public. It will be a standard reference point for future discussion of the matters it addresses. (shrink)

While affirmative action programs exist for a number of groups, little serious consideration has been given to the establishment of such programs for gay men and lesbians. This essay argues that many of the conditions that justify current affirmative action programs would also justify their extension to gay people, both in terms of compensation for injuries suffered and in terms of benefit to both individuals and society generally. It is argued that anti-discrimination policies are hard to enforce and, in any (...) case, would be inadequate to redress many of the wrongs suffered by gays and lesbians. It is concluded that programs favoring gay visibility are morally justified. (shrink)

In his book Homosexuality, Michael Ruse argues that the state does not have any obligation to provide affirmative action benefits for gay people (beyond the obligation to have anti-discrimination laws). I believe that Ruse's stated reasons do not justify this conclusion. I also believe that the conception of affirmative action he deals with is far too narrow to guarantee that if there is no obligation to provide affirmative action benefits (on that narrow conception) then there is no obligation to provide (...) positive benefits not provided to all (the wider conception of affirmative action). Moreover, I think the attempt to use the narrower, rather than the wider, conception in this case indicates a considerably less than complete sensitivity to the plight of gay people in the context of present day Western societies. In this article I attempt to justify these beliefs. (shrink)

Many authors examine the governmental, the scientific, and the sexual politics of AIDS. Many of these same authors tell the AIDS story within the context of decrying homophobia. The implications of that story, however, have a troubling significance for women. This essay proposes to move the discussion of the sexual politics of AIDS beyond the confines of homophobia and to highlight issues not widely discussed outside of AIDS activist circles-issues which are having, and will continue to have, profound effects on (...) women. (shrink)

The author argues that the minority homosexual section of our population--a larger minority than, for example, the ethnic minorities section--is more often than not excluded by the 'helping professions' from the right to be parents. The author appeals to the lack of scientific data supporting such exclusion and asks that homosexual parents and their children receive the same care from our institutions as other parents and children. Some instances of lack of care are cited. The paper was presented to the (...) 1983 annual conference of the London Medical Group, 'Human Rights in Medicine'. (shrink)

This article critiques the legal phenomenon of the 'Homosexual Advance Defence' by arguing that it relies upon a particular construction of the male body as bounded and inpenetrable. The article demonstrates this by reference to a reading of the High Court's decision in Green v The Queen (1997) 191 CLR 334 and then moves on to argue against certain liberal law reform tactics and in favour of a 'poetics of law reform' conceived as a reconceptualisation of the body in legal (...) discourse. (shrink)

Lawrence v. Texas, which gave constitutional protection to same-sex adult sodomy, is the latest signpost on the Court's sexual privacy trail. The Supreme Court's opinion avoids formulating a specific rule to guide discretion, opting instead to focus on overruling Bowers. Nevertheless, Justice Scalia's dissent, with its ominous prophecy that Lawrence will be the death of legislation banning sex aids and other morality crimes, provides a tantalizing promise of a potentially broad application. This article considers that potential in the context of (...) various state laws banning sex aids. Alabama's law, for example, banning such devices, is based on Alabama's claim that the pursuit of orgasms by artificial means for their own sake is detrimental to the health and morality of the State. Part I of this Article details and critiques generally the Supreme Court's past precedent limiting constitutional privacy and liberty rights. By using history and tradition in interpreting the limits of substantive due process, the Court allowed gender discrimination to infect constitutional interpretation. A lack of concern about women's health issues has fueled a history and tradition that is oblivious to the realities of women's sexual selves. Part II discusses the history of sex aids - specifically devices intended to allow women to achieve orgasm - in the context of their history and tradition. Surprisingly, vibrators have a history and tradition of non-regulation. Part III examines the interaction between gender bias in legal and medical applications, specifically in the case of sex aids. Ultimately, medical stereotypes can infect case law, and medical bias can reinforce gender stereotypes in the law. Part IV details how states enforce statutes outlawing such devices. These laws are not just quaint artifacts of an earlier time and place - Alabama's law was passed in 1998 - and prosecution under these laws results in convictions and jail sentences. Part V reviews the Lawrence majority opinion and searches for clues as to what the decision means for sexual privacy generally, and for sex aids specifically. This article concludes that the change in focus is a narrow victory for liberty and privacy interests, at most shifting the burden to the government to justify its reasons for impinging those interests whose application, not surprisingly, will depend upon the proclivities of the Court that applies it in the next case. When considering sex aid cases after Lawrence, however, the courts should not view the situation from a male-centered definition of sexuality that reduces women's normal needs to pathologies or diseases or that ignores sexuality unrelated to procreation. Rather, courts should examine whether it is constitutionally permissible for a state to outlaw the sale of sexual devices that are used in the privacy of an adult's own bedroom. They should rationally conclude that the government has no such power. (shrink)

This piece, co-authored with Sel Wahng, was part of a set of essays published together under the title "Thinking Sex/Thinking Gender." In this article, we explore how identity politics that underwrite many gay, lesbian, bisexual and transgender discourses have proved limiting in regard to potential political alliances and social change. We address this concern by looking at the questions under consideration in this forum through a particular lens: how bodies and identities interact and intersect with modern formations of power. Through (...) this mode of inquiry we seek to relate supposedly disparate elements for the purpose of making new social, political and scholarly connections. (shrink)