Last summer, we noted the exciting work coming from the intersection of legal history and the history of sexuality (here and here). In the Spring issue of Law & Social Inquiry, Felicia Kornbluh (University of Vermont) brings the field together under the banner of "queer legal history." Her essay reviews recent work from Margot Canaday, Marc Stein, and Sarah Barringer Gordon, as well as slightly older work from George Chauncey and Elizabeth Hillman.Kornbluh begins with what Kevin Cathcart, executive director of Lambda Legal, used to call the “gay exception” to major doctrines of US law: "every just and compassionate aspect" of state and federal law seemed to exclude Lesbian, Gay, Bisexual, and Transgender (LGBT) people.
The compelling questions for historians of law and society concern the nature of the “gay exception,” its origins, and the source of its erosion. In the depressing Clinton years, and even as the Lawrence v. Texas (2003) decision was being handed down, scholars did not know enough about the past to answer these questions. Now, thanks to a generation of scholarship that has itself been influenced by the movement for LGBT rights, we begin to. Much of the recently published work was begun when Cathcart's “gay exception” had its strongest hold; undertones of fury are audible despite the authors' scholarly rectitude and academic style. This body of work joins the insights of women's and gendered legal history with those of contemporary sexuality studies (as well as political history, constitutional history, historical political science in the American Political Development tradition, the history of social welfare, and immigration history) to generate, “what,” in the words of historian Marc Stein, “might be called queer legal history” (Stein 2004, 111).
The new research is “queer” in that it addresses the meeting points between people who expressed their gender or sexuality in ways that were unfamiliar to the officials who interacted with them and legal institutions, personnel, and ideas. This work also “queers” our reading of the legal past. It compels new understandings of material toward which scholars may have thought they had settled interpretations. The books discussed here direct attention to the so-called sexual revolution in the high courts of the 1960s, to immigration law, military practices, veterans' benefits, and the domestic welfare state (Stein 2010; Canaday 2009). This work “queers” the history of marriage law, of urban vice squads, prisons, the relationship between religion and law reform, and military courts-martial (Chauncey 2004; Hillman 2005; Self 2008; Kunzel 2008; Gordon 2010). [footnotes omitted]
If you can find a way to access the full text via your institutional subscription service (it is only available to subscribers), I highly recommend it.
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