The lone dissenter to the majority opinion, Justice Moreno, lambasted the majority -- and California voters -- for the passage of a an "unprecedented instance of...altering the meaning of the equal protection clause...to require deprivation of a fundamental right on the basis of a suspect classification." For the nearly 200-page document of the California Supreme Court, including its majority and two concurring opinions and Justice Moreno's biting dissent, see here (dated 5/26/09; docket # S168047) or here, if you'd rather not download the pdf. For some helpful, if at times partisan, legal analysis, see here, here, here, and here.
I offer the below florilegium as a way to register not only the affects of defeat and disappointment in the wake of the California ruling but also to suggest some divergence from the rights-based, divisive identity politics strategy of seeking legal recognition for same-sex marriage. I find myself in the queerly contradictory position of being both against banning same-sex marriage and against legalizing same-sex marriage, insofar as these alternatives -- banning, legalizing -- are framed within co-implicated systems of domination.
“People today seem unable to understand love as a political concept….The modern concept of love is almost exclusively limited to the bourgeois couple and the claustrophobic confines of the nuclear family. Love has become a strictly private affair. We need a more generous and more unrestrained conception of love. We need to recuperate the public and political conception of love common to premodern traditions….love as a political act that constructs the multitude. Love means precisely that our expansive encounters and continuous collaborations bring us joy….We need to rediscover today this material and political sense of love, a love as strong as death. This does not mean you cannot love your spouse, your mother, and your child. It only means that your love does not end there, that love serves as the basis for our political projects in common and the construction of a new society. Without this love, we are nothing.”
“Queer politics is…a performative collective project of rebellion and creation. It is not really an affirmation of homosexual identities but a subversion of the logics of identity in general. There are no queer bodies, only queer flesh that resides in the communication and collaboration of social conduct.”
“Subversion is always partial and localized….If subversion does not subvert something specific at a specific moment, it does nothing at all. Thus one always needs to ask what the aim of subversion is, and what it is destabilizing….We should add that if ‘subversion’ is always partial, this is partly because a subject’s position within relations of domination is never simple. There are always multiple hierarchizations, sometimes contradictory among themselves….We need to try to conceive of the ensemble of systems of domination and oppression together as a totality, to think of these systems in their multiplicity and with all of their articulations.”
“Revolt is never only a matter of action. Revolt, the forces of opposition, grow out of resistance, reflection. The combination of these new powers becomes very important: it determines the content of struggles….The victory of the authorities…[does] not reaffirm the old system but, on the contrary, profoundly modifie[s] it, making possible new forms of resistance and struggles, new lines of flight. It [is] therefore necessary to adapt to this new situation, to respond to trends, to the reality of the new relations of power that this transformation implie[s].”
“[Why is there] always the demand to be oriented toward sustained, intimate relationships…?”
“The topic of gay marriage is not the same as that of gay kinship….The petition for marriage rights seeks to solicit state recognition for nonheterosexual unions, and so configures the state as withholding an entitlement that it really should distribute in a nondiscriminatory way, regardless of sexual orientation….The normalizing powers of the state are made especially clear, however, when we consider how continuing quandaries about kinship both condition and limit the marriage debates….[L]et us consider for the moment the ambivalent gift that legitimation can become. To be legitimated by the state is to enter into the terms of legitimation offered there, and to find that one’s public and recognizable sense of personhood is fundamentally dependent on the lexicon of that legitimation. It follows that the delimitation of legitimation will take place only through an exclusion of a certain sort, though not a patently dialectical one. The sphere of legitimate intimate alliance is established through the producing and intensifying regions of illegitimacy….[But] we misunderstand the sexual field if we consider that the legitimate and the illegitimate appear to exhaust its immanent possibilities. There is outside the struggle between the legitimate and illegitimate… field that is less thinkable, one not figured in light of its ultimate convertability into legitimacy….”
“It is undeniable that the restriction of marriage to heterosexual couples is a potent form of discrimination, regulation, and stigma. But to combat that inequality requires us to think beyond the mere inclusion of gay couples and to recognize that marrying has consequences for the unmarried.”
“…within the history of gay culture, even in the case of an individual author, a tradition of conformism and a tradition of subversion can coexist to the point of being indissociable, even indistinguishable, from one another. The two are one. It is perhaps even the very inextricability of the two traditions that defines what we call gay culture.”
“…those who live outside the conjugal frame or maintain modes of social organization for sexuality that are neither monogamous nor quasi-marital are more and more considered unreal, and their loves and losses less than ‘true’ loves and ‘true’ losses. The derealization of this domain of human intimacy and sociality works by denying reality and truth to the relations in at issue….To intervene [in this object field] in the name of transformation means precisely to disrupt what has become settled knowledge and knowable reality, and to use, as it were, one’s unreality to make an otherwise impossible or illegible claim….[W]hen the unreal lays claim to reality, or enters into its domain, something other than a simple assimilation into prevailing norms can and does take place. The norms themselves can become rattled, display their instability, and become open to resignification.”
“A state that promotes marriages also disenfranchises people whose primary affinities do not get into the couple form and contributes to a culture that stereotypes these people as isolated failures, as immature and/or sexually indiscriminating, or as part of some mysteriously primitive social system.”
“The ability to imagine and cultivate forms of the good life that do not conform to the dominant pattern would seem to be at least as fundamental as any putative ‘right to marry.’ If so, then the role of the state should be to protect against the abuses of majoritarianism.”
“What would it be like if intimate couplehood did not have to function as an economic safety net for so many people?”
“Liberation unfolds a process that breaks with the oppressing way of life in order to actualize the shape of a fairer and more humane life. In short, liberation is a struggle for self-determination of one’s own existence by suffering….Liberation carries with it an immanent form of creation through labor such that to create and to produce is simultaneously to save. Work = liberation. Salvation is found in the act of laboring, which transcends the self-enclosure of alienation and estrangement.”
“Should a homosexual be a good citizen?”
“We need to begin to imagine an alternative legal strategy and framework: a conception of privacy that expresses the singularity of social subjectivities (not private property) and a conception of the public based on the common (not state control)….This is a molecular conception of the law.”
“A conception of activism as enlarging the life options of gay men and lesbians has a manifest appeal….But this way of thinking says nothing about whether pursuing legal marriage is a good political strategy, about the ethical question of what marrying does, about state regulation, or about the normativity of marriage….Presenting marriage as an unconstrained individual option—a ‘license’ in the same sense as a ‘sexual license’—requires us to forget that it is a social system of both permission and restriction….A marriage license is the opposite of sexual license. Sexual license is everything the state does not license, and therefore everything the state allows itself to punish and regulate. The gay and lesbian movement was built on a challenge to this regulatory system”
“Great political events are not the only things that are hard to live through. There are also all the simpler things, where one often has the impression of being in the right—it always takes time to realize how much others have suffered.”
“Possibility is not a luxury; it is as crucial as bread.”
“…memory determines continuity. And continuity is always the expression of power. It [is] necessary to sustain a subjective point of view, to combat the ‘blurring’ of history by which the authorities [seek] to mask our role and create an appearance of continuity. It is this blurring of reality that push[es] us off course, and that continues still today to hold us back.”
“So send them forth, though sorrowing, yet in peace;
…………………………new hope to spring
Out of despair, joy but with fear yet linked…”
= = = = =
Sources [in order of citation]
Michael Hardt and Antonio Negri, Multitude, pp. 351-52
Michael Hardt and Antonio Negri, Multitude, p. 200.
Didier Eribon, Insult and the Making of the Gay Self, pp. 126-27.
Antonio Negri, Negri on Negri, pp. 41-42.
Michael Cobb, “Lonely, SAQ 106.3 (2007): p. 446.
Judith Butler, Undoing Gender, pp. 102-06.
Michael Warner, The Trouble with Normal: Sex, Politics, and the Ethics of Queer Life, p. 108
Didier Eribon, Insult and the Making of the Gay Self, p. 126.
Judith Butler, Undoing Gender, pp. 26-28.
Elizabeth Freeman, The Wedding Complex: Forms of Belonging in Modern American Culture, p. 2.
Michael Warner, The Trouble with Normal: Sex, Politics, and the Ethics of Queer Life, p. 112.
Elizabeth Freeman, The Wedding Complex: Forms of Belonging in Modern American Culture,
Gabriele Fadini, “Ontological Resistance: A Meditation on Exodus and Power,” trans., Creston Davis, Angelaki 12.1 (April 2007), p. 66, emphasis original.
Leo Bersani, Homos, p. 113.
Michael Hardt and Antonio Negri, Multitude, pp. 203-4.
Michael Warner, The Trouble with Normal: Sex, Politics, and the Ethics of Queer Life, pp. 95-97.
Antonio Negri, Negri on Negri, p. 43.
Judith Butler, Undoing Gender, p. 29.
Antonio Negri, Negri on Negri, p. 41.
John Milton, Paradise Lost 11.117 and 11.138-39.