Queer relations: a reading of Martha Nussbaum on same-sex marriage.

• Author: Jakobsen, Janet R.
• Position: The Works of Martha C. Nussbaum: Feminism and Liberalism; History, Identity and Sexuality; Gender and Development

This symposium on the work of Martha Nussbaum as part of the inauguration of the program on Gender and Sexuality Law at Columbia Law School provides a chance to reflect on the reasons for a focus on gender and sexuality in the study of the law. After all, one might ask, are questions of gender and sexuality--at least those beyond a few matters like discrimination--not private concerns that should rightfully be beyond the realm of the state and its laws? If we look at public policy over the past half-century, however, gender and sexuality have been central to a range of crucial questions of social policy as they have been enacted in law--from welfare reform to immigration policy to health care--and so it is crucial that this area be taken seriously in the study of law as well.

As my way of phrasing this opening indicates, I am not a scholar of law, but rather of social policy and social movements, as these fields are understood within religious studies and through the lens of ethical analysis. I have used the tools of my training in social ethics and the study of religion to consider the role of gender and sexuality in contemporary U.S. policy. Martha Nussbaum's extensive body of scholarship includes a focus on a range of social policies in conjunction with her explorations of constitutional law. Having written widely on questions of gender, Professor Nussbaum has more recently turned to sexuality as well, and her interest in constitutional law has taken her to a question that continues to roil both public discourse and public policy in the U.S.--same-sex marriage.

Nussbaum takes up this issue at several points, most recently in her book, From Disgust to Humanity. Gay marriage also remains a crucial social issue of the day, although a difficult one to summarize given that the situation is remarkably fluid and the battles around the country over gay marriage shift on an almost daily basis. Same-sex marriage was, of course, the confounding defeat for progressive forces in the November 2008 elections despite the overwhelming victory of Barack Obama in the presidential campaign. Obama was victorious in the state of California by a wide margin, but a majority of Californians also voted for Proposition 8, a referendum reversing the California Supreme Court's recognition of same-sex marriage. In the court battle that ensued, Prop. 8 was upheld by the California Supreme Court, but so were the gay marriages performed between the initial legalization and the passage of the referendum. This means that in California some same-sex couples are legally married, but at this time no other similarly-situated citizens of the state can join them. In the spring of 2009, however, there was a pronounced swing in momentum on the issue, with Iowa, Vermont, New Hampshire, and Maine joining Massachusetts and Connecticut in granting same-sex marriages, while New York and the District of Columbia chose to recognize these marriages but do not yet grant them. None of these decisions really settled the issue, even in these few states. Californians have begun litigation to overturn Proposition 8, while in Maine, a coalition called Stand for Marriage gathered signatures to put the bill on hold until a measure similar to Proposition 8 could be put to the voters. In November 2009, the repeal of Maine's gay marriage bill passed by a narrow margin, meaning that gay marriage was rescinded in Maine before it could take effect. Yet, these state-by-state battles are not the only site of conflict on this issue. In July 2009, these issues were brought to the federal level when the State of Massachusetts filed a suit in federal court challenging the federal Defense of Marriage Act (passed in 1996 and defining marriage as "between one man and one woman") as violating the exclusive prerogative of the states to define marriage. (1) So, despite the new spate of state recognition, the battles that may be faced in the remaining states--including the ongoing battles in states like California--and at the federal level mean that gay marriage will remain on the national agenda for some time to come. (2)

In the midst of all of this conflict, Nussbaum comes up with a means of addressing same-sex marriage that might be seen as surprising for a liberal theorist but that provides an alternative to the simplified "for" or "against" dichotomy that has come to mark the dominant political debate on the subject. Unlike those who have promoted same-sex marriage as a crucial matter of lesbian and gay rights, or human rights more generally, Nussbaum supports gay marriage but also takes a different tack. She does think that if the state is going to marry heterosexual couples, equality requires that they also marry homosexual couples, but she is uncertain that the state should be in the business of marrying anyone at all. In this sense, rather than simply supporting gay marriage, Nussbaum is much more in line with the reading of marriage presented by queer theorists like Michael Warner, in The Trouble with Normal, (3) and with a longstanding feminist tradition, represented by Martha Fineman's The Autonomy Myth, (4) that has variously criticized state-based marriage.

Queer theory is, itself, no singular thing; there is plenty of disagreement about issues ranging from the possibility of queer futurity to the status of central concepts like "heteronormativity" and "resistance to the norm." (5) Within sexuality studies, however, there is a relatively clear distinction between more traditional lesbian and gay studies, which presume some form of coherent gay and lesbian identity or community as their subjects, and the queer critique which takes as its object not only the normativity of heterosexuality in dominant cultures around the world (although as an Americanist, I will concentrate on the United States), but also the force of normativity within gay and lesbian communities (what scholars like Lisa Duggan and Jasbir Puar have termed "homonormativity"). (6) In social movement terms, lesbian and gay studies tend to be associated more with gay rights organizations like the National Gay and Lesbian Taskforce and the Human Rights Campaign, both of which are strong proponents of same-sex marriage in the form of marriage equality or the freedom to marry (which are interesting conceptualizations in themselves). (7) Queer theory has tended to be more skeptical of marriage, an institution that is a central part of the very normativity that is of such concern to queer critique. (8) As such, queer theorists have tended to support social policy proposals like those of the Beyond Marriage initiative and what Duggan, among others, has termed "sexual democracy." (9)

Nussbaum's position on this issue is striking for a scholar who is known for her commitment to a liberal paradigm that might put her more closely in line with the position held by proponents of "gay and lesbian" rights. At the symposium, a crucial question was raised by Tracy Higgins: at what point would we say that a position initially informed by a commitment to justice and rights, as Nussbaum's work has long been, is no longer liberal? Extrapolating from Higgins' question, is it possible that Nussbaum's ethical and political commitments, which are admittedly formed by liberalism, might be best fulfilled by making a move beyond the limits of liberalism?

Take, for example, Nussbaum's commitment to justice as articulated in her later work with books like Hiding from Humanity (10) and Frontiers of Justice. (11) In these books, she sets out to articulate a theory of justice that includes those who are not usually the subjects of such theories. She addresses this question across a broad spectrum of exclusion--gays and lesbians, people with disabilities, across national boundaries, as well as across species boundaries. In the case of gay and lesbian or queer people, we are not, or should not be, according to Nussbaum, the subjects only of compassion--Df the "love" so often offered by the Christian Right, even as our "sin" is "hated." Rather, as Ann Pellegrini and I argue in Love the Sin: Sexual Regulation and the Limits of Religious Tolerance, queers are not deviants to be tolerated but rather free and equal subjects along with those who claim to love us even as they would deny us equal rights. (12) We are, or should be, the subjects of justice rather than the objects of tolerance. But the question is, what kind of subjects are we?

I ask this question because it has important consequences for policy and thus for law. Depending on how we answer, we might find gay marriage to be the single most important issue of gay rights, as commentators like Andrew Sullivan do. (13) On this view, the right to freely choose whom to marry is definitive of the adult human being, who is the subject of justice, and so as a matter of equality it is actually crucial that gay people be afforded the right to make this choice. If they are not, they can never be equal citizens. Alternatively, if one understands the subject of justice differently, one might actually move to shift the argument away from gay marriage and toward other means of affirming equality. One might even be led to question the place that marriage holds in contemporary public life, where it is so often taken as an expression of the state's recognition of individual human dignity. Thus, the question of the status of liberalism is not an esoteric one, what is sometimes called "only academic," but rather has major implications for how one approaches a policy issue like same-sex marriage. If one accepts the autonomous individualism that is the mark of liberalism, then one will be more likely to take up the gay and lesbian rights approach, but if one begins with the queer critique of the individual, then an approach that de-centers or even disestablishes marriage, removing it from the realm of the state entirely, is the mote likely choice.

While queer theory and politics do not embrace...