Feminist and Queer Legal Theory

Intimate Encounters, Uncomfortable Conversations

Martha Albertson Fineman, Jack E. Jackson, Adam P. Romero

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781317135722
• Edition: 1
• Topic: Law
• Subtopic: Jurisprudence
• Index: Law

Feminist and Queer Legal Theory: Intimate Encounters, Uncomfortable Conversations is a groundbreaking collection that brings together leading scholars in contemporary legal theory. The volume explores, at times contentiously, convergences and departures among a variety of feminist and queer political projects. These explorations - foregrounded by legal issues such as marriage equality, sexual harassment, workers' rights, and privacy - re-draw and re-imagine the alliances and antagonisms constituting feminist and queer theory. The essays cross a spectrum of disciplinary matrixes, including jurisprudence, political philosophy, literary theory, critical race theory, women's studies, and gay and lesbian studies. The authors occupy a variety of political positions vis-à-vis questions of identity, rights, the state, cultural normalization, and economic liberalism. The richness and vitality of feminist and queer theory, as well as their relevance to matters central to the law and politics of our time, are on full display in this volume.

Part One
Queer With or Without Feminist Legal Theory?

Introduction

This section introduces some of the key texts, political positions, and institutional–ideological locales that mark and situate feminist and queer articulations and engagements in contemporary legal theory.

The introductory chapter by Ian/Janet Halley issues a queer theoretical call for us to occasionally “take a break from feminism.” Halley claims that this desired suspension of feminism does not imply that “the convergence of feminism with queer theory is impossible or undesirable; it is merely that divergence is both possible and highly valuable” to a leftist politics of sexuality, power, and pleasure. More exactly, a break from feminism opens the door to a broader appreciation of the uncertainty, fluidity, and undecidability in sexuality.

Katherine Franke shares some of the concerns expressed by Halley. In “Theorizing ‘Yes,’” Franke worries that legal feminism’s preoccupation with theorizing “no” on a variety of sexual-political fronts has unhelpfully circumscribed feminist approaches to “sexuality, desire, and women’s ‘hedonic lives.’” Franke argues that legal feminism offers no positive politics of sexual pleasure because sexuality has been reduced to either questions of dependency and motherhood and/or the dangers of sexual violence. Franke challenges feminist legal theorists to produce work that “erect(s) the enabling conditions” for women’s sexual pleasure.

Martha Fineman’s contribution to this volume challenges the policies, practices, and ideologies of the marital “sexual family.” The sexual family is heterosexed at its core: it is “tenaciously organized around a sexual affiliation between a man and a woman.” Fineman seeks to shatter the hegemony of this patriarchal and heteronormalized vision which privileges the sexual relation (even when “same-sex”) in family law and national myth. De-naturalized, this order is then subject to a political critique on behalf of a de-privatization of the burdens of “natural and inevitable dependencies.”

The site of focus in the next chapter shifts from the work of the privatized sexual family to the zone of employment in the capitalist economy. Vicki Schultz’s chapter, “The Sanitized Workplace Revisited,” examines Title VII’s prohibition of sex-based discrimination. Schultz believes that the near-exclusive focus on “sexual advances and sexual conduct” in this area of law has obscured non-sexual forms of sex-based inequalities. Further, this focus has incited businesses to “purge” the workplace of sexual conduct that does not contribute to inequality and subordination. This has led to an unfortunate conflation of feminist legal theory “with a punitive stance toward sexuality.”

The concluding chapter in this section by Frank Valdes tracks the emergence of “sexual orientation” legal scholarship in the United States. In “Queering Sexual Orientation,” Valdes divides this formation of knowledge into two stages. The first stage challenged heterosexist domination along familiar constitutional/doctrinal routes. In the second stage, which we have now entered, Valdes identifies (and seeks to further) a shift to a “queer legal theory” that interrogates “the ways in which white and straight supremacy interlock to create legal and social conditions” that subordinate and discriminate against the “multiply diverse sexual minorities in the United States.” Valdes argues that this project is “relentlessly egalitarian and suspicious of all essentializing categorization.” Lastly, and perhaps in something of a contrast to theoretical calls for “breaks,” Valdes explicitly aims to nurture and proliferate the multitude of connections between anti-subordination struggles.

Chapter 1
Queer Theory by Men1

Janet Halley, writing sub nomine Ian Halley

In this chapter I present parts—not all—of my argument that it would be good for left pro-sex intellectual and political work, including feminist work of this kind, if people doing it could occasionally “Take a Break from Feminism.” In Part I, I attempt a minimalist definition of feminism as it is now practiced and produced in the United States, and draw some rudimentary distinctions among various forms of feminism that fall within this definition. The basic idea here is that a minimalist definition of feminism actually maximizes the range of projects that can be described as feminist, and makes it harder to “Take a Break” from them. In Part II, I give an extremely cursory genealogy of feminism, gay-identity politics and queer theory. In Part III, I analyze an example of queer theory by men, Duncan Kennedy’s Sexy Dressing (1993). I attempt to find with some precision the trajectory of the postmodernizing, sex-positive, left analytics of sexuality and the precise points of their debt to and departure from feminism. The basic idea here is to travel into the domain that could be called queer theory and to start the journey as far as possible from feminism; it seemed to me likely (and I think it turned out to be the case) that Kennedy would situate his theorizing in relation to feminism rather than in it and would therefore make manifest some conceptual and/or political possibilities for “Taking a Break from Feminism.” Finally, I deduce from the experience of writing Part III (and of reading in the field more broadly) some maxima for queer theory, feminist and otherwise.

I. A Minimalist Definition of Feminism, and Some Distinctions

Here are some observations about how feminism defines and taxonomizes itself in the United States today. I am not claiming that these attributes are essential in the sense that they are absolute or natural; rather that they are essential in the sense that current conventions seem to require them as a disciplinary matter. First, to be feminism, a position must make a distinction between M and F. Different feminisms do this differently: some see men and women, some see male and female, some see masculine and feminine. While “men” and “women” will almost always be imagined as distinct human “groups,” the other paired terms can describe many different things: traits, narratives, introjects. However a particular feminism manages these subsidiary questions, it is not “a feminism” unless it turns in some central or core way on a distinction between M and F. Second, to be a feminism in the United States today, a position must posit some kind of subordination as between M and F, in which F is the disadvantaged or subordinated element. At this point feminism is descriptive and not normative: M>F. And third (here is the normative turn), feminism opposes the subordination of F. It frames itself as a justice or emancipatory project. As between M and F, and possibly because M>F, feminism carries a brief for F.

I think these attributes are noticeable in virtually every form of feminism in the United States today, and will treat them as definitional—as essential in an Aristotelian sense. Beyond that, feminisms can be distinguished in many ways. It has been helpful to me to suppose that about half of feminism in the United States today concerns itself with male power and female subordination in sexuality, and that the other half concerns itself primarily with reproduction, care work, work in the paid economy, and related matters. Of course these overlap, but people seem more or less comfortable with treating them as the “phyla” of this intellectual kingdom.

Further, across the full range of these issues, feminism often concerns itself in very sustained ways with powers that operate not across the M/F distinction, but along the many distinctions that we refer to when we speak of “class,” “race,” and “empire.” We could call the results socialist, anti-racist, and postcolonial feminisms. I like to think of these as “hybrid” feminisms, because they set out to examine (at least) two incommensurate modalities of power at once.

So assuming I can proceed with those givens, I will also note that, on the sexuality side, feminism finds itself in alliance with and in conflict with other left/liberal/progressive projects that take sexuality and power as their domain of operation but that often lack a primary focus on M/F and often do not primarily concern themselves with M>F. Chief among these are gay identity politics, transgender and transsexual politics, sex liberationism that is not primarily feminist, and queer theory. In this chapter I will examine some aspects of the relationship between feminism as a theory about sexuality and power, and queer theory.

At this point (and always in the hybrid feminisms), a person framing a conceptual, descriptive, normative, and/or political project can choose between converging the two or more modes of conceptual or social organization or diverging them. That is, we could decide that normatively it would be terrible to have a theory of homosexuality that was not ultimately feminist, or a feminism that did not wholly encompass our theory of homosexuality; we would then be aiming for complete convergence. Or we could say that it is better for some reason to have some division or autonomy or even conflict between the two projects; we would then be aiming for some degree of divergence.

My overall goal in this discussion is to make a case for the proposition that divergence in left thinking about sexuality and power can get us some conceptual gains that seem unavailable from convergence. Specifically, I think we don’t always need feminism in order to have meaningful left projects about sexuality. I hope to show that left/liberal/progressives can Take a Break from Feminism in their theorizing, their alliance formation, and their activism from time to time, and that the results can be (not that they must be—only that they can be) good, not only for projects that fall outside the domain of feminism, but for feminism, too.

There are many reasons to think this is a bad idea, and there is a large literature, that will certainly continue to grow, on the upsides and downsides. In this chapter I hope it will be permissible to circumscribe my goal: I want to provide an elaboration of some conceptual moves that may be possible only if one pursues a divergence between feminism and queer theory as I imagine it. Some, not all; and a, not the. To be sure, if the instances of divergence that I expose here seem valuable, perhaps we will decide we want to find or produce more of them. The argument is not that the convergence of feminism with queer theory is impossible or undesirable; it is merely that divergence is both possible and possibly highly valuable.

II. Feminism 101 and Beyond

The Male/Female Model and Cultural Feminism

By far the most brilliant, comprehensive and forceful thinker about sexuality in American feminist legal theory for the last twenty years has been Catharine A. MacKinnon. Her formulation—which, for shorthand, I will call the “male/female model”—has become the paradigmatic understanding of sexuality in sexual-subordination feminism in the United States. The chief alternative source of descriptive and normative insights is cultural feminism.

It took me a long time to understand how profoundly MacKinnon altered several of her basic positions between 1982 and 1983, when Signs published two articles by her that fully deserve the name “radical feminist,” and the mid-1980s, by which time she was fully engaged as a feminist legal activist. As I show elsewhere, Feminism Unmodified, the 1987 volume on which most readers rely for a restatement of MacKinnon’s thought tout court, significantly modifies MacKinnon’s position as of 1983 on a whole array of crucial points. All the feminists who want to resist the influence of the Late MacKinnon should consider whether their own reasons for resistance appear as MacKinnon’s own position in the Signs articles. As I see it, many of them do.

The Early MacKinnon argued that male dominance was not merely a social subordination of women by men, but an almost total capture of reality and knowledge themselves by male dominance and female subordination. Male dominance and female subordination did not merely rank the genders: they produced them (that is, the very existence of men and women may well derive from this domination), and, because they also produced the eroticization of domination by everyone so constituted, they also produced the consciousness by which we might apprehend these arrangements. Our very desire and our very modes of knowledge are inhabited throughout by the epistemology of this power structure. Men emerge as objective knowers, and women as known objects; and this turns us all on and is our basic grammar of action: man fucks woman, subject verb object. Feminism is a project in quest for women’s point of view, which, because it is already constituted as its subordination, is not only a profoundly deferred but also a deeply problematic starting place.

On this understanding, male dominance was so complete that no aspect of gender could be distinguished, ultimately, from rape. MacKinnon did not claim that every act of heterosexual intercourse was a rape. Rather, she made the much more interesting and subtle claim that, because of the constitutive role of male dominance and female subordination in producing all the existing people, in generating the very rudiments of our knowledge and desire, there is no one alive who can distinguish meaningfully between rape and not-rape.

I call the result a male/female model because those terms map the entire field of analytic possibility for this feminism. Male power produces female subordination, which is gender, which is the eroticization of this hierarchy; all of this generates rather than arises from the conceptual and social difference between men and women. The model is highly convergentist: it causes MacKinnon to say that, if a man rapes a man, the latter has been sexually dominated and is therefore feminized. The homosexuality of the event does not elude, but must rather merge into the male/female model.

All of this led the Early MacKinnon to embrace a critique of the state and of the law. The state and the law were, she proposed, male—not in the sense that men ran them, but in the sense that they fully recapitulated male ontological and epistemological powers and were in a sense therefore fully dependent on female subordination to be what they were. The state could not be used against something so constitutive of it as male power; and female subjectivity, which was a constitutive element of male power, provided no way out of the dilemma. Criminalizing rape would merely legitimate all the dominance in sexuality that escaped the definition of the crime; deciding particular rape cases on the basis of the woman’s instead of the man’s testimony merely recapitulated the subject/object, subjectivity/objectivity distinction of male dominance; asking trial courts to find that some acts of heterosexual intercourse were “rape” imputed to others a legitimacy feminism should deny them. Insight into equality and the political will to seek it could come only from consciousness-raising—the painful search for a transformation of consciousness achieved at the most micro level.

It was not too long before MacKinnon significantly departed from some of these claims. She retained the structural view of male domination: it is horizonless; it produces men and women; it relates them to each other in gender, which is eroticized domination. But by the mid-1980s she claimed to know many, many things, and to know them because women’s point of view had disclosed them to her without distortion. Rape, sexual harassment, domestic abuse, pornography—all the lurid catalogue of sexual nastiness—these are the core elements in male domination. Rights against them enforced by the state would be feminist. Women who disagree with any part of this line, MacKinnon was willing to suggest, have been co-opted by male consciousness. It is possible to deploy the Early MacKinnon against the Late. I am not saying that one or the other is more “right,” or that MacKinnon’s work is somehow less compelling just because it has evolved. I myself vastly prefer—in fact am wildly enthusiastic about—the Early MacKinnon, but that is a political decision, not a logical or moral necessity.

It also took me a long time to realize that MacKinnon has consistently refused to be a cultural feminist in the sense I use that term. To be sure, male/female-model and cultural feminism have a lot in common. Both insist on M/F, on M>F and on carrying a brief for F. Both are structural subordination projects. Both see equality as the almost-exclusive vocabulary for their justice ambitions. But while MacKinnon focuses our attention on the unjust male domination of women through power, cultural feminism emphasizes the unjust male derogation of women’s traits or points of view or values or experiences through male-ascendant normative value judgments. If MacKinnon’s equality project is a massive attack on power as it constructs everything, cultural feminism is an effort to transvalue values—to find women’s or feminine values (like care, or intersubjectivity, or particularity) and to restore them to a place at least equal to, probably superior to, the corresponding male values (like self-interest, or objectivity, or generality) that have unjustly pushed their way to the top. Cultural feminism is not nearly as likely as MacKinnon’s thinking to be structural in form: after all, women exist as exemplars of a better way, and if we could put them in charge, or make men more like them, things would get better fast. But it is equally ambitious on the social dimension it cares about: MacKinnon would like to get men by the balls because she does not believe their minds and hearts can follow; whereas cultural feminism has detailed plans for their hearts and minds. Cultural feminism is a fighting faith seeking the moral conversion of a little less than half the human race.

Both the male/female model and cultural feminism support women’s identity politics. That is, they see women as a human identity group with a common problem—subordination to men. Though cultural feminism roughly speaking divides its attention between the cultural revaluation of women’s distinctive relationship to care and the cultural revaluation of women’s distinctive engagement in sexuality, when it focuses on sexuality, cultural feminism agrees with the male/female model in characterizing male sexuality as a vast social problem. Women are the client base of these feminisms, and women are the people they would help first if they had to pick.

Gay Identity Politics, Sex-Positive Feminism, Postmodernism, and Queer Theory

At the same time that these sexual-subordination feminisms were developing themselves as important elements in American legal thought and practice, another identity-based movement became important in the United States: homosexuals. They (we, actually) borrowed a lot of ideas about how to have an identity movement from the black civil rights movement (as did feminism), but the focus of my story here is the way the gay movement borrowed ideas about having a subordinated-sexuality movement from feminism. Roughly speaking, gay identity politics in the United States can be construed to take forms resembling the common elements of the male/female model and cultural feminism: homosexuals are a real social group subordinated in sexuality to heterosexuals; justice requires ending that form of social ranking. Moreover, gay identity movements tend to take either a MacKinnon-like form, looking with a wary eye for traces everywhere of heterosexual dominance and seeking its overthrow; or a cultural-feminist-like form, emphasizing the moral virtues of homosexuals and seeking their normative inclusion in the center.

To be almost unbearably reductive, three things happened “then.” First, AIDS. In the United States, AIDS first emerged as an epidemic among gay men. For about ten years starting in the early 1980s, the death toll—affecting a youthful population then fomenting ecstatic politics of sexual liberation and otherwise expecting to live for decades—was a huge social fact. Social conservatives and defenders of heterosexual virtue quickly stigmatized the epidemic as the product of “gay male promiscuity,” a move which put to gay-identity movements the question whether they could continue to affirm sexual liberation as a defining goal. Gay centrism moved towards marriage rights, and gay liberationism moved towards sexual liberty and the world-making (bathhouses, elaborate sexual subcultures, and so on) that might sustain it; the movement split, intellectually and politically.

Second, MacKinnonite feminists and cultural feminists began in the early 1980s to converge on some fairly specific targets of activism—rape and other forms of direct violence, pornography, intergenerational sex, sex between social unequals (for example, boss/secretary, teacher/student), sex in public—as leverage points for the de-subordination of women. They formed important alliances with social and religious conservatives morally opposed to these practices, and together these allies made significant progress in articulating and enforcing legal sanctions against a wide array of sexual relations. This simultaneous turn “to the state” and “against sex” broke alliances between MacKinnonite and cultural feminists on the one hand and radical, sexual-liberationist feminists on the other. The result was the “sex wars.” In them, the radical, sexual liberationist feminists precipitated abruptly and with great energy out of the male/female-model and cultural feminism, and, looking back to the radical feminist sources from which MacKinnon’s early work emerged, formed a distinct “sex-positive” feminism specifically in struggle with Late-MacKinnonite and cultural feminism.

Where sex-positive ...

Table of contents

• Cover Page
• Dedication
• Title Page
• Copyright Page
• Contents
• Notes on Contributors
• Acknowledgements
• Introduction: Feminist and Queer Legal Theory
• PART ONE QUEER WITH OR WITHOUT FEMINIST LEGAL THEORY?
• PART TWO FEMINIST WITH OR WITHOUT QUEER LEGAL THEORY?
• PART THREE PLURALIZING DIFFERENCE
• PART FOUR THE POLITICS AND LAW OF KINSHIP, INTIMACY, AND CARE
• PART FIVE LAW AND STRATEGY AT THE CROSSROADS OF FEMINIST AND QUEER LEGAL THEORIES
• Postscript: Curious Encounters, Unpredictable Conversations
• Bibliography
• Index