Sexual Orientation, Politics, and the Law

Foucault bildet eine zentrale Grundlage der queeren und schwulen Theorie, die sich seit den späten 1980er Jahren insbesondere in den USA entwickelt hat. Seine Macht- und Subjekttheorie ist die Basis für eine nicht- essentialistische Analyse von Sexualität und für die Kritik ihrer normierenden Wirkung, die Foucault selbst in Der Wille zum Wissen (1983, frz. 1976) begonnen hat und die das Kerngeschäft der Queertheorie ist. Während Foucault als Grundlage der Queertheorie insgesamt rezipiert wird, gibt es eine spezifisch schwule Rezeption von Foucault, (...) die an seine vielfältigen Äußerungen zur schwulen Politik anschließt und dessen Machtanalyse und seine späteren Arbeiten zur Ästhetik der Existenz mobilisiert, um damit das schwule Leben vor, während und nach der AIDS-Krise zu analysieren. (shrink)

This chapter argues that considerations arising from queer oppression can furnish support for pacifist positions. The first consideration concerns the nature and strength of the moral presumption against violence. Violence undermines a victim’s agency, coercing them to betray their identities, not unlike “reparative therapy.” The second consideration concerns the moral presumption against conscription. Current conscription policies are cisgender-normative, threaten to coerce queer citizens to fight for unjust states that oppose their basic rights, and coerce queer citizens to risk their lives (...) and welfare on behalf of queerphobic citizens. These considerations serve to deepen criticisms of violence. (shrink)

Menschenrechtsverletzungen aufgrund sexueller Orientierung und Geschlechtsidentität (SOGI) wurden auf internationaler Ebene lange Zeit kaum zur Kenntnis genommen. Doch seit einigen Jahren wird dem Thema in den Vereinten Nationen breiterer Raum eingeräumt. Die Yogyakarta-Prinzipien und eine Studie des Amtes des Hohen Kommissars für Menschenrechte stellen nur die ersten Schritte auf dem Weg zu einem umfassenderen Schutzansatz dar. Er muss gegen den Widerstand vieler Staaten weiterverfolgt werden.

Was hat der Staat mit sexueller Orientierung zu tun? Eine ganze Menge, meint Gundula Ludwig, denn durch staatliche Macht in Form von „heteronormativer Hegemonie“ würden wir zu Subjekten gemacht – und zwar ‚normalerweise‘ zu männlichen bzw. weiblichen und heterosexuellen. Dabei betont Ludwig die Gegenseitigkeit des Verhältnisses von Staat und Geschlecht: Nicht nur wirke staatliche Macht konstitutiv und vergeschlechtlichend auf Subjekte, sondern der Staat selbst werde im „Prozess der vergeschlechtlichen Subjektkonstitution erst hervorgebracht“. Deshalb seien weder der Staat noch Heterosexualität natürlich gegeben, (...) sondern ihre Konstruktion sei eine Regierungstechnologie, und nicht zu trennen vom ökonomischen (Neo-)Liberalismus. Mit ihrem Buch möchte die Autorin eine Leerstelle in der Forschung füllen: Einerseits sei die Staatstheorie geschlechtsblind, andererseits ließen queer-feministische Arbeiten zur Konstruktion von Geschlecht den Staat aus. Ludwig verspricht eine poststrukturalistisch antiessentialistische Theorie, die beides beobachten kann und so den Zusammenhang von Staat und Geschlecht erklärt. (shrink)

"Do You Have To Be A Lesbian To Be A Feminist?" Plenary session speech at the conference of the National Women's Studies Association, June 1990.

This article deals with the issue of resignification to advance a hypothesis on the way in which social practices are transformed with recourse to the language of institutions. It first discusses the transition from gay liberation to same-sex marriage equality by exploring the trajectory of homosexuals’ rights claims. The article continues by providing a theoretical interpretation of what brought this shift about, that is, what the author calls a movement ‘from the street to the court’: in both civil law and (...) common law jurisdictions, legal means are increasingly being used by individuals and groups to make their claims audible to political institutions and to society at large. Then, an analysis is offered of the shape that social struggles take when socio-political claims are articulated with recourse to the legal language. The conclusion is that reliance on the law as a device to achieve political goals and construct same-sex group identity risks producing but a feeble resignification of the conventional heterosexual matrix. In light of that, a more effective way to defy this matrix is to create awareness of what is gained and what gets lost in becoming legally visible. (shrink)

What defines family law? Is it an area of law with clean boundaries and unified distinguishing characteristics, or an untidy grouping of disparate rules and doctrines? What values or principles should guide it – and how could it be improved? Indeed, even the scope of family law is contested. Whilst some law schools and textbooks separate family law from children’s law, this is invariably effected without asking what might be gained or lost from treating them together or separately. Should family (...) law and children’s law be distinguished or treated together? One would expect disagreement on these questions in any context. In bringing together theorists from multiple jurisdictions and at least two primary disciplines, we should not be surprised to find deep differences in approach reflecting different methodologies and foundational questions. The tension between them, we hope, can illuminate and enrich discussion on all sides. (shrink)

Stereotypes shape inferences in philosophical thought, political discourse, and everyday life. These inferences are routinely made when thinkers engage in language comprehension or production: We make them whenever we hear, read, or formulate stories, reports, philosophical case-descriptions, or premises of arguments – on virtually any topic. These inferences are largely automatic: largely unconscious, non-intentional, and effortless. Accordingly, they shape our thought in ways we can properly understand only by complementing traditional forms of philosophical analysis with experimental methods from psycholinguistics. This (...) paper seeks, first, to bring out the wider philosophical relevance of stereotypical inference, well beyond familiar topics like gender and race. Second, we wish to provide philosophers with a toolkit to experimentally study these ubiquitous inferences and what intuitions they may generate. This paper explains what stereotypes are, and why they matter to current and traditional concerns in philosophy – experimental, analytic, and applied. It then assembles a psycholinguistic toolkit and demonstrates through two studies how potentially questionnaire-based measures can be combined with process measures to garner evidence for specific stereotypical inferences and study when they ‘go through’ and influence our thinking. (shrink)

Some have attempted to justify benefit/ cost analysis by appealing to a moral theory that appears to directly ground the technique. This approach is unsuccessful because the moral theory in question is wildly implausible and, even if it were correct, it would probably not endorse the unrestricted use of benefit/ cost analysis. Nevertheless, there is reason to think that a carefully restricted use of benefit/ cost analysis will be justifiable from a wide variety of plausible moral perspectives. From this, it (...) is reasonable to conclude that such use of the technique is probably morally justified and should be acceptable to most people. (shrink)

One current line of argument against the legalization of same-sex marriage, advocated primarily by the New Natural Lawyers, is that marriage is a pre-political institution that has, as an essential element, a bodily union requirement. They argue that same-sex couples cannot realize bodily union in their sexual activities and thus cannot meet the structural requirements of marriage. Accordingly, they argue that the same-sex marriage debate must be framed as a debate about what marriage is, and not, as it was in (...) the anti-miscegenation precedents, about who can get married. I argue that their position, which promulgates a set of pernicious stereotypes about same-sex couples, is, first of all, internally inconsistent. According to their own metaphysical principles about bodily union, they provide no rational basis for the claim that same-sex couples cannot realize bodily union and thus that same-sex couples cannot be married. Second, I argue for a deflationary account of the significance of bodily union. While same-sex couples, like heterosexual couples, can realize bodily union, this sort of union has no moral significance and thus cannot be the factor that distinguishes marriages from other sorts of relationships. Finally, I suggest that they have no basis for their claims about the inferiority of same-sex relationships. (shrink)

By revisiting Hegel's Philosophy of Right, I mount a Hegelian defense of same‐sex marriage rights. I first argue that Hegel's account of the Idea of freedom articulates both the necessity of popular shifts in the determinations of the institutions of right, as well as the duty to struggle to progressively actualize freedom through them. I then contend that Hegel, by grounding marriage in free consent, clears the path for expanding this ethical institution to include all monogamous couples. Lastly, I close (...) by sketching the specifically Hegelian reasons we ought to actively struggle to expand the institution of marriage. (shrink)

This article considers the arguments made in Baker v. Vermont, wherein the Vermont Supreme Court held that same-sex couples must be granted all thelegal rights and privileges that are granted to married couples. The article concludes by questioning if abolishing the legal institution of marriage would be the best way to protect the natural institution of marriage.

What role should the state have in recognizing and regulating marriage? Until recently, liberal political theorists paid little attention to this question. Yet the challenges that the public–private boundary-crossing institution of marriage poses to liberalism are substantial. Tensions in contemporary debates suggest that these challenges remain unaddressed and thus, invite attempts to formulate a coherent and compelling model of the relationship between marriage and the liberal state. This article responds to this invitation. Marriage has long been a concern of at (...) least some liberal thinkers. Typically they focused on the dual character of marriage, or its role in producing gender inequality. While these critical insights are essential to any adequate account of marriage and the state, they are only part of the picture. To grasp the sources of confusion and silences in contemporary debates, and formulate a robust liberal model of marriage and the state, we must examine the functions — intended and effective — of public recognition of marriage. This examination highlights the relevance to the marriage-state relationship of familiar liberal approaches to negotiating the religion-state relationship. Drawing on these approaches and liberal feminist thought, I sketch a model of marriage and the state that aims to expand the area of protected freedom without sacrificing equality, fairness or marriage. Under the model I propose, marriage would be disestablished. The state would neither confer marital status, nor use 'marriage' as a category for dispersing benefits. Legitimate public welfare goals currently treated through marriage would be addressed through an intimate caregiving union status. (shrink)

This paper juxtaposes Deleuze's notion of the virtual alongside Oyama's notion of a developmental system in order to explore the promises and perils of thinking bodily identity as indeterminate at a time when new technologies render bodily ambiguity increasingly productive of both economic profit and power relations.

Midway between the unintelligible and the commonplace, it is metaphor which most produces knowledge. In the struggle for the recognition of gay and lesbian marriage equality in the United States, advocates often employ arguments analogizing the prohibitions against same-sex civil marriages as equally invalid as those that forbid legally interracial marriages.1 Whether it be in legal briefs, oral arguments, media appearances, or everyday conversations, more often than not, the legitimacy of gay and lesbian claims to equal protection before the law (...) turn on the question of the perceived similarities between discrimination based on race and that based on sexual orientation.2 As with other forms of legal.. (shrink)

Name der Zeitschrift: Philologus Jahrgang: 159 Heft: 2 Seiten: 301-326.

According to the fairness argument, same-sex marriage must be permitted because without it there would not be equal treatment for homosexuals and heterosexuals. In, Piers Benn holds that the argument does eventually deliver this conclusion, but not as readily as intuitively appears. He concludes that some conservative points against same-sex marriage achieve at least a stand-off from the point of view of the argument. I argue that he accords the conservative points much more significance than they actually deserve and misconstrues (...) the metaphysical dimension that is an important part of how the fairness argument operates. (shrink)

Owing most probably to Western-style modernization, marriage is increasingly understood to be a business strictly for married couples. However, I argue that this is an error, as many inexperienced couples are left to their own devices, and thereby often fail to utilize marriage to acquire the social competencies that are crucial to wider social responsibilities, including political leadership. The modern atomic conception of marriage is influenced by the Kantinspired Western conception of moral autonomy. Nevertheless, I reject this conception as excessively (...) absolutist, and argue that moral autonomy can be tempered by lack of experience, human desire and circumstantial pressures in life. Many African societies view marriage as a union of societies rather than that of individuals, and I argue that the moral support offered by the extended family and the community at large is ultimately geared to inculcate in the spouses inter-personal and social skills of restraint, prudence, tolerance, constructive criticism and other virtues desperately needed to execute societal responsibilities. (shrink)

This book explores policy innovation for same-sex couples throughout the Americas and includes same-sex marriage legislation, civil unions, and other new developments for same-sex couples throughout the Americas at both national and sub-national levels. This scholarship is innovative because though much has been written regarding developments in North America, there is very little work dealing with recent developments in the rest of the Americas.

Does the contemporary Natural Law position that only heterosexual couples are capable of marriage rest upon an “arbitrary and irrational distinction between same-sex couples and sterile heterosexual couples?” Anderson :759–775, 2013: 759). There are many who think so. In a recent article in these pages, Erik Anderson offers his case that these critics are correct. In what follows I examine Anderson’s argument and conclude that, whether or not one ultimately agrees with the New Natural Law account of marriage, the distinction (...) found there between same sex couples and sterile heterosexual couples is neither arbitrary nor irrational. (shrink)

Sexuality injustice differs significantly in form from racial and gender injustice. Because persons who are gay or lesbian can evade being publicly identified and treated as gays or lesbians, sexuality injustice does not consist, as racial and gender injustice does, in the disproportionate occupation of disadvantaging and highly exploitable places in the socio-economic structure. Instead, sexuality injustice consists in the displacement of homosexuality and lesbianism to the outside of society. I examine, in particular, (1) the production of society as heterosexual (...) through the requirement that all citizens adopt a real or pseudonymous heterosexual identity as a condition of access to the public sphere; (2) the reproduction of heterosexual society through legal, psychiatric, educational, and familial practices whose aim is to prevent future generations of lesbian and gay people; and (3) the legitimation of heterosexual society through the construction of criminalizing stereotypes of gay and lesbian identity. (shrink)

This dissertation is about the fundamental right to marry in American jurisprudence. The study is divided into seven chapters. ;Chapter one is an introductory chapter. It introduces some basic terminology, sets out two primary assumptions that govern the dissertation, and provides an overview of the following chapters. Chapter two examines the unique historical development of the fundamental right to marry in the United States. Chapter three discusses a contemporary dilemma that has arisen as a result of this historical development. Within (...) this developmental history, a conflict arose between two specific lines of cases. The first line defines the structure of marriage based upon tradition, and suggests that government should exercise broad control over marriage to protect this tradition. The second defines marriage based upon notions of privacy, and suggests that each individual citizen should have the right to define their own understanding of marriage, thereby promoting diversity within the construct of marriage. To protect diversity, government should have only limited control over marriage. Chapter four is a transition chapter discussing how the philosophy of Bernard Lonergan can help resolve the dilemma set forth in chapter three. Based on Lonergan's philosophy, chapter five presents a resolution that suggests that human beings and society in general need both tradition and diversity, as those terms are previously defined in chapter three, to develop and grow. Both tradition and diversity are compatible, and both should be jointly promoted in marriage jurisprudence for the good of individuals and society. Chapter six discusses the issue of generativity in marriage, and shows that the laws governing procreation and child raising also combine tradition and diversity. Thus, the proffered solution presented in chapter five is not unique to American law. Lastly, chapter seven discusses the role of marriage in the common good, and shows that the proffered solution indeed benefits both individuals and society. ;The proffered resolution to the contemporary dilemma set forth in chapter three shows that the traditional parameters of marriage established by the Supreme Court can be maintained while also allowing, and even promoting, diversity within those parameters. This solution promotes both the good of individuals and the good of society in general. While not providing a concrete resolution to the debate concerning the legality or morality of same-sex marriage, this resolution provides a theoretical basis which may help develop practical solutions to some of the issues underlying the debate. (shrink)