Monday, January 12, 2015

Boucai, "Glorious Precedents: When Gay Marriage was Radical"

Michael Boucai (State University of New York, Buffalo, Law School) has posted "Glorious Precedents: When Gay Marriage was Radical." The article is forthcoming in the Yale Journal of Law and the Humanities. Here's the abstract:
In the years immediately following the Stonewall riots of June 1969, a period when “gay liberation” rather than “gay rights” described the ambitions of a movement, three marriage cases made their way to and beyond trial: Baker v. Nelson in Minnesota, Jones v. Hallahan in Kentucky, and Singer v. Hara in Washington State. This article offers a detailed account of that early trilogy. It shows that, contrary to received wisdom, Stonewall-era marriage litigation was faithful to gay liberation’s radical aspirations. The Baker, Jones, and Singer lawsuits deployed marriage’s symbolic cachet to proclaim homosexuality’s equality, legal and moral, in a society that almost ubiquitously criminalized its practice. They protested the traditional gender roles that gay liberationists located at the heart of their oppression and that marriage, at the time, not only fostered but legally prescribed. They provided a platform from which to critique other aspects of marriage, such as the rule of monogamy and the state’s coercive, intrusive preference for a particular form of intimate association. Perhaps most importantly, these cases were sensational advertisements of gay people, gay relationships, and the nascent gay liberation movement. The first gay marriage plaintiffs were closely affiliated with that movement and, despite widespread antipathy toward marriage, fellow liberationists generally applauded the lawsuits as effective vehicles for declaring the movement’s existence and communicating several of its most important messages. This history, important in its own right, allows us to grasp some of the underlying stakes and radical possibilities of the signal gay rights issue of our time.
The full article is available for download here, at SSRN.

Hat tip: Legal Theory Blog

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