Fragmented Citizens

The Changing Landscape of Gay and Lesbian Lives

Stephen M. Engel

• Editore: NYU Press
• Anno: 2016
• ISBN:
  9781479839100
• Argomento: Politics & International Relations
• Categoria: Civics & Citizenship

The landmark Supreme Court decision in June 2015 legalizing the right to same-sex marriage marked a major victory in gay and lesbian rights in the United States. Once subject to a patchwork of laws granting legal status to same-sex couples in some states and not others, gay and lesbian Americans now enjoy full legal status for their marriages wherever they travel or reside in the country. For many, the Supreme Court’s ruling means that gay and lesbian citizens are one step closer to full equality with the rest of America. In Fragmented Citizens, Stephen M. Engel contends that the present moment in gay and lesbian rights in America is indeed one of considerable advancement and change—but that there is still much to be done in shaping American institutions to recognize gays and lesbians as full citizens. With impressive scope and fascinating examples, Engel traces the relationship between gay and lesbian individuals and the government from the late nineteenth century through the present. Engel shows that gays and lesbians are more accurately described as fragmented citizens. Despite the marriage ruling, Engel argues that LGBT Americans still do not have full legal protections against workplace, housing, family, and other kinds of discrimination. There remains a continuing struggle of the state to control the sexuality of gay and lesbian citizens—they continue to be fragmented citizens. Engel argues that understanding the development of the idea of gay and lesbian individuals as ‘less-than-whole’ citizens can help us make sense of the government’s continued resistance to full equality despite massive changes in public opinion. Furthermore, he argues that it was the state’s ability to identify and control gay and lesbian citizens that allowed it to develop strong administrative capacities to manage all of its citizens in matters of immigration, labor relations, and even national security. The struggle for gay and lesbian rights, then, affected not only the lives of those seeking equality but also the very nature of American governance itself. Fragmented Citizens is a sweeping historical and political account of how our present-day policy debates around citizenship and equality came to be.

1

From Individual Rights to Institutional Recognitions

Toward a Developmental Account of Gay and Lesbian Politics

There is no notion more central in politics than citizenship, and none more variable in history, or contested in theory.

—Judith N. Shklar, American Citizenship: The Quest for Inclusion, 19911

The institutions of a polity are not created or recreated all at once, in accordance with a single ordering principle; they are created instead at different times, in the light of different experiences, and often for quite contrary purposes. . . . [P]olitics in the United States, like politics elsewhere, consists, in large part at least, in acting out the consequences.

—Karen Orren and Stephen Skowronek, The Search for American Political Development, 20042

LGBT rights are often described and pursued in ways parallel to historical and ongoing struggles for African American civil rights, labor rights, and women’s rights.3 Such comparisons are drawn in our most prominent exemplars of civic rhetoric. For example, in his 2012 inaugural address, President Barack Obama stamped the LGBT movement with the legitimating imprimatur of the civil rights and women’s rights movements that preceded it:

We, the people, declare today that the most evident of truths—that all of us are created equal—is the star that guides us still; just as it guided our forebears through Seneca Falls, and Selma, and Stonewall; just as it guided all those men and women, sung and unsung, who left footprints along this great Mall, to hear a preacher say that we cannot walk alone; to hear a King proclaim that our individual freedom is inextricably bound to the freedom of every soul on Earth.4

By folding the LGBT rights movements into the canon of a national narrative of progress toward yet-unrealized constitutional ideals, Obama embraced a dynamic pluralist vision of democracy. And, his reference to Stonewall—a Greenwich Village gay bar where a multiday riot sparked the modern gay rights movement—would hardly go unnoticed.5 Media commentators lighted upon it as groundbreaking, a moment when the LGBT rights movement was acknowledged as legitimate, included within the pantheon of the rights struggles at the heart of civic identity, and vital to the realization of liberty and equality.6

Since the concept of rights, as a liberal ideal and rhetorical touchstone, is so central to U.S. civic identity, it is hardly surprising that contemporary LGBT movement actors frame their purpose as securing rights or that they define equal citizenship in terms of rights.7 From Frank Kameny’s first organized picket outside the White House in 1965, in which a group of civil servants fired for their homosexuality carried banners proclaiming “Homosexuals Are American Citizens, Too” to today’s most well-funded LGBT interest group in the United States, the Human Rights Campaign, which defines itself as “working for lesbian, gay, bisexual, and transgender equal rights,” prominent actors—although not all8—within these communities have conceived of citizenship as made manifest in rights and of access to rights as indicating inclusion within the civic community.9

Even as LGBT rights can be fitted to a pattern of progressive rights attainment, “American political development offers no clear historical trajectory, no inevitable march of rights, no irresistible triumphs of rights and freedom.”10 Law, politics, and policy do not just recognize rights already naturally held by persons; rather, bureaucrats, policymakers, lawyers, and private regulatory authorities such as human resource managers are active agents in shaping the way individuals’ identities are recognized and thus in determining the rights that they can access. Such determination is the result of deliberative and contested dynamics of regulatory recognition, and this recognition does not occur at a steady pace or in a single direction. Consequently, inequalities can be built anew or “novel intellectual, political, and legal systems reinforcing racial, ethnic, or gender [or sexuality] inequalities might be rebuilt in America in the years ahead.”11 The state sees and sexualizes its citizens in changing ways over time. Rights are, as an empirical matter, a regulatory construct, hardly stable, hardly perpetual, and always subject to negotiation.

This chapter lays the foundation for a developmental accounting of gay and lesbian politics by shifting the analytical focus from rights claims to institutional recognitions of sexual identities. Redirecting attention from rights claims to differential statuses afforded by regulatory recognition calls attention to the need to examine the way institutional and ideational contexts defining the meaning of gay and lesbian personhood and citizenship have varied over time and across space. The chapter makes sense of this differential recognition by state and private regulatory authorities by drawing on the developmental notion of the polity as made up of multiple, conflicting governing orders. Ultimately, the chapter demonstrates how different governing authorities may adopt distinct modalities simultaneously, thereby creating a fragmented identity, an identity that has different implications for rights claims and civic responsibilities depending on what institution is doing the looking. It utilizes two cases to illustrate this idea: first, Department of Defense efforts to treat soldiers equally, which have grated against other orders of authority concerning family and marital recognition, employment, and religious expression; and second, emerging tensions between marriage recognition and parental recognition.

From Rights to Recognition as the Cornerstone of Citizenship

Rights discourse in contemporary LGBT mobilization draws on two American political traditions. First, one route to sociopolitical and legal reforms runs through the courtroom, and rights talk is the language of litigation.12 Second, citizenship claims are often articulated through rights discourse because natural rights are central to the liberalism that defines many aspects of American political culture.13 This discourse calls to mind T. H. Marshall’s classic conception of citizenship as a network of mutually constitutive rights. Those who have rights are citizens; those who do not are not. Once one is a citizen, she holds all the rights and responsibilities that all other citizens are recognized to have.14 Inclusion in the polity as citizen, by this logic, necessarily makes one equal to all other citizens.

Adding nuance to this conception, Elizabeth Cohen evaluates citizenship’s “constitutive elements,” which form a “braid of citizenship rights” that need to be “unbundled” to be assessed fully.15 She contends that the rights of citizens are not only “independent of, rather than contingent upon, each other” but also that such “independently justified rights can be granted in differentiated bundles,” giving rise to various types of what she terms “semi-citizenship.”16 Different individuals can have distinct bundles of rights, and thus semi-citizenship can take distinct form depending on the content of the particular bundle granted. Gays and lesbians in the United States, because they may have some rights—they are not criminalized—but lack others—they are not always protected against workplace discrimination on the basis of sexual orientation or gender identity—are semi-citizens.17

The concept of rights captures only one way of thinking about citizenship. Beyond the boundaries of the Anglo-American tradition, movements for LGBT equality need not only be framed by referencing rights. For example, in the late 1990s and early 2000s, the debate in France over the creation of the Pacte Civil de Solidarité (PaCS), which established state recognition of any coupling of French citizens regardless of sexual orientation or even romantic status, occurred almost entirely within the bounds of cultural reference to republicanism. French republicanism, with its emphasis on common claims to national identity and compulsion to reject particularistic affiliations, is antithetical to the identity politics that has defined American struggles for racial, cultural, ethnic, and sexual equal rights.18 Yet, advocates and opponents of the PaCS relied on republican tropes to bolster their arguments.19

This republican concept of the citizen “integrate[s] the demands of liberal justice and community membership.”20 It emphasizes responsibilities to the democratic community and often relies on either the cultivation of civic virtue or participation in public deliberation to bolster the liberal emphasis on individual right.21 Judith Shklar rejects the republican participatory model of the ideal citizen since it is an insufficient metric by which to evaluate the historical evolution and contemporary meanings of citizenship: “Whatever the ideological gratifications that the mnemonic evocation of an original and pure citizenry may have, it is unconvincing and ultimately an uninteresting flight from politics if it disregards the history and present actualities of our institutions.”22 Shklar’s efforts to historicize citizenship remind us to account for the way citizenship depends on political context and the way that context has changed over time. Tying the meanings and changing configurations of sexual identities—as act, person, and citizen—to the development of state and private regulatory infrastructure is the main objective of this book.

Calling attention to that context shifts the operative focus of citizenship from the individual claiming citizenship to the set of institutions that recognize or confer citizenship status. As Iris Marion Young reminds us, the citizen is constituted by another’s gaze and is therefore always in danger of being marked as less than equal: “While the subject desires recognition as human, capable of activity, full of hope and possibility, she receives from the dominant culture only the judgment that she is different, marked, or inferior.”23 Similarly, for Shane Phelan, these others are within the community and yet not recognized as part of that community. Phelan refers to such individuals—and she includes LGBT persons in this category—as strangers who “trouble the border between us and them” precisely because they may have rights in certain contexts and when recognized as occupying certain identities but not have access to rights in other contexts or when their LGBT identity is invoked.24

Recognition need not require approval of one’s political perspectives or ideas, but it does, for Phelan, demand “an affirmation of one’s place in a political community.”25 Citizenship is the status that indicates how one has been rendered not only equal to others in a politico-legal context but how one has been rendered equally legible. It derives from the gaze of public institutions as well as from the recognition offered by private authorities. Examination of private regulatory infrastructure is necessary to produce a fuller sense of the way inclusion within the community of citizens is fostered, especially in the United States, where so many basic welfare rights are provided by private corporate institutions and not by the state.26 Furthermore, as Shklar reminds us, citizenship is constituted also in the marketplace: “Modern citizenship is not confined to political activities and concerns. . . . It is in the marketplace, in production and commerce, in the world of work in all its forms, and in voluntary associations that the American citizen finds his social place, his standing, the approbation of his fellows, and possibly some of his self-respect.”27 Some conceptions of modern citizenship are deeply grounded in this idea of the citizen as earner (and as consumer).28 Again, Shklar notes, “This vision of economic independence, of self-directed ‘earning,’ as the ethical basis of democratic citizenship took the place of an outmoded notion of public virtue, and it has retained a powerful appeal. We are citizens only if we ‘earn.’”29 LGBT individuals are not fully free to engage in free labor. In a majority of states, they are vulnerable to being fired for nothing more than their sexual orientation or gender identity, as no federal law bars such discrimination. Given what Shklar calls “the intimate bond between earning and citizenship” in the United States, LGBT persons remain outside the inclusive scope of Shklar’s conception of citizenship.30

Redirecting attention from the individual making the rights claim to the governing authority doing the regulatory recognition can bring analysis of citizenship into fuller conversation with some of the ideas that undergird the study of American political development. Political development scholars define the polity as fractured, with different policies adopted at different times such that unexpected and unforeseen frictions may continuously arise. Such fragmentation is a consequence of the way the polity is constructed: piecemeal, over time, and without grand design. Given the polity’s qualities of fragmentation and internal institutional and ideational tensions, extensions of acknowledgment by the polity, or the way a person or citizen may be recognized in full dimension, are likely not to be all at once or of a piece. Rather, as Phelan contends, “we may, then, expect to see that exclusions at certain points coexist with cautious inclusions at some other sites and comfortable equality at yet others.”31

Any institution—whether public or private—that governs the individual over his life cycle must make the individual legible, and therefore it must develop laws, policies, norms, and rules that define the individual’s identity as well as establish its relationship to that individual and her identity.32 Sexuality, particularly same-sex intimacy, has hardly been singularly recognized and defined. Contemporary understandings of homosexuality, which identify, first, a particular class of people who exhibit congruence between biological sex and sexual desire for an individual of the same biological sex and, second, an act that might be performed regardless of any innate orientation, do not capture the myriad forms of homosexualities evident throughout history. David Halperin contends that sexual identity suffers from a definitional incoherence, which has developed due to “accumulation, accretion, and overlay” of functionally distinct kinds of homosexualities that were more or less prominent at particular times.33 And, as Eve Kosofsky Sedgwick suggests, sexuality is neither innate and unchanging nor constructed at one moment, but defined and redefined in different ways over time.34

The idea of such redefinition grounds the pattern of five distinct modalities of recognition explored in this book. Public and private regulatory authorities in the United States have defined and seen sexual minorities since the late nineteenth century as (1) a threat to national community; (2) individuals who commit homosexual acts, which can endanger national security and moral health; (3) people subject to unjust discrimination; (4) a group decriminalized but otherwise privatized and beyond state recognition; and (5) persons dignified through the public and equal recognition of intimate relations once considered morally and physically dangerous. This pattern of modalities is not meant to be fu...

Indice dei contenuti

• Cover
• Title Page
• Copyright Page
• Dedication
• Contents
• Acknowledgments
• Introduction: Fragmented Citizens
• 1. From Individual Rights to Institutional Recognitions: Toward a Developmental Account of Gay and Lesbian Politics
• 2. Excluding the Homosexual: Naming Gender and Sexual Transgression
• 3. Gay Is Good: Multiple Paths to Recognizing Unjust Discrimination
• 4. Recognizing Ourselves: Gay and Lesbian Interest Groups and the Consequences of Self-Definition
• 5. Respect for Private Lives: Closeting Same-Sex Sexuality in Public Opinion, Policy, and Law
• 6. A History of Discrimination: Gays and Lesbians as a Suspect Class
• 7. A Jurisprudence of Blindness: Same-Sex Marriage, Human Dignity, and the Erosion of Scrutiny Doctrine
• Conclusion: To Be Whole
• Notes
• Index
• About the Author