Blog Archives

Why Is Same-Sex Marriage a Priority?

I know I’ve mentioned here before that I get frustrated by the emphasis on marriage and the military in the gay rights movement, two issues that don’t really matter to me personally and in some ways seem less important than other issues (like decriminalization of sodomy around the world, like HIV prevention, like hate crimes prevention, like non-discrimination laws). But aside from that, I was just wondering, why marriage? Obviously it’s an important institution in our society, but I find it interesting that it happens to be the marker of how the gay rights movement is progressing around the world. A lot of countries in Latin America, for example, have really impressive laws about hate crimes and non-discrimination, but that doesn’t get emphasized in the news at all, while a new country getting same-sex marriage is automatically a big deal.

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Prop 8 Overturned, Sort Of

Your blogger’s inner cynicism rears its ugly head, I’m afraid.  I haven’t had time to read the decision or anything else, so I’m operating on what I know from the news, which is that a California District Court ruled Prop 8 unconstitutional on Due Process and Equal Protection grounds and that a stay has been issued, though it’s not a very long one and so it’ll expire before an appeal and another stay will have to be issued.

Assuming that’s correct, this is definitely something of a victory, but it doesn’t mean people can get married again, and it doesn’t mean that Prop 8 was really “overturned,” at least, in the sense I use the word.  I sort of feel like you can’t overturn something if the next guy can turn it right back.  But despite that, I’ll feel some cautious sense of victory, and eagerly anticipate the result of the appeals process.

Blogging “Yes” Day 21: The Flip Side of Pro-Choice

For day twenty-one of the Blogging “Yes” project, I read “When Pregnancy Is Outlawed, Only Outlaws Will Be Pregnant” by Tioloma Jayasinghe.  This essay was something of a revelation when I first read it, because like most (white, middle class) people I tended to have a knee-jerk reaction when I heard about “crack babies” and pregnant women drinking or doing drugs.  How dare the mother?  How sad for the child.  Jayasinghe does a good job of pointing out the problems with this reaction, which include ignorance of the roots of the problem in racism and poverty, studies that show hard drugs actually aren’t proven to harm babies, and the lack of available treatment options for mothers who do want help with a drug problem.  This is an issue that is in fact just as important to the pro-choice movement as the right to a legal and affordable abortion, but much less talked-about.

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Blogging “Yes” Day 12: Trying Rape of Black Women in the Media

We’re at day twelve of the Blogging “Yes” project, and today I read the essay “Trial by Media: Black Female Lasciviousness and the Question of Consent” by Samhita Mukhopadhyay (yes, two Feministing contributors in a row, if you noticed).  This essay gets back to the question of black female sexuality and focuses especially on cases like the Duke lacrosse case and how the rape of women of color is “tried” in the media.

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World AIDS Day: Where Do We Go From Here?

There’s been a bit of radio silence here, as you may have noticed, though I’m still blogging fairly regularly with my ladies at the F-Wave. I wanted to break that silence, though, to make a comment on World AIDS Day.

Last year this time, I was on the floor of my apartment in Iowa City with my friend Rita, researching and creating a poster presentation to mark the day at our law school. I remember thinking as we did that presentation how many populations are affected by AIDS, and also how much AIDS is tied in with legal/political issues in various tangential arenas. Take a moment today to think about some of these, and add your own in the comments:

  • Funding for development, both HIV/AIDS related and generally
  • Laws that criminalize/penalize sex workers and those who work with them
  • Sex education, especially focused on sexual violence prevention
  • Marginalization of women of color and women generally worldwide
  • Laws that keep HIV positive people and people living with AIDS from adequate health insurance coverage, work, travel, and giving blood
  • Sodomy laws that make it difficult to work with men who have sex with men and provide proper prevention and treatment, as well as endangering unknowing wives
  • The use of rape as a weapon of war in Darfur and elsewhere

Thoughts on communicative sexuality

Note:  the below is crossposted from my book journal.  No Tati Tuesdays this week b/c I didn’t actually have much to report, though I do recommend Jon Stewart’s interview with Barney Frank on Monday.

I’m reading an anthology on date rape, edited by Leslie Francis, and I was particularly struck by the first two articles.  The first, by Lois Pineau, proposes a new communicative model of sexuality to replace the contract model frequently used in understanding sexual relations in rape cases.  According to the contract model, the idea is that if the victim consented, then a contract was established and the perpetrator did nothing wrong.  Pineau argues that this allows perpetrators (males) to get away with a lot because the evidentiary standard for showing consent is relatively low.  The alternative she suggests is a communicative model, where sexuality is thought of not as a contractual relationship but as something akin to friendship or conversation.  Under this model, the presumption would be nonconsent in the case of any noncommunicative, aggressive sexual interaction.  The defendant would then have to offer a reasonable explanation for his belief that the victim was consenting, despite the lack of communication between the two.  I like this idea, because it encourages communication and makes it more difficult to argue “I thought she was consenting.”  I also think, based on some psychological pieces I’ve read, that many men would be less likely to rape if the situation was not “blurry,” as I’ve read quite a few accounts of men who seem to honestly believe that their behavior was okay, based on certain actions or words of the victim.  In an open, honest, complete dialogue, they would have more trouble convincing themselves that it was okay to force sexual contact on the victim.

The second piece in the anthology, then, is David M. Adams’ critique of Pineau’s piece.  He has two main objections.  One is that verbal communication is not always necessary – that men might reasonably rely on other indicators such as body language and that given the difference in how the genders communicate we should not dismiss these indicia – and the other is that verbal communication is not always sufficient – in other words, a woman might say one thing and truly feel another.  I think that both these two objections could be met by a look at BDSM sexuality.

In arguing that verbal communication is not always necessarily, Adams points out that erotic communication is often complex and that a “checklist” would take away from the sexiness of it; that the most unambiguous form of expressing desires, literally writing them down and checking them off, takes all the romance out of the equation.  In fact, this isn’t true at all.  Many BDSM couples in fact use a checklist – before the fact.  This establishes some reasonable assumptions, because partners are aware of likes and dislikes in advance.  Further, the partners are not bound by these preferences – they are free to use a clear verbal communication, in the form of a safeword, to say no.  This kind of verbal system makes it very clear when non-consent is established.  The “she said no but I thought she meant yes” strategy doesn’t fly, because there is one word that means “I no longer consent, and this is not up for debate.”  Though it’s unlikely that all couples would establish a safeword, I do think a similar model of communication both before and during erotic encounters can make the experience both sexy and mutual.  I’m also bothered by Adams example of a man establishing consent based on a look in the woman’s eye versus the example of a woman deciding not to physically resist based on a look in a man’s eye that provokes fear.  He uses this example to argue that feminists can’t have it both ways – if option B is allowed, then so too option A.  I think this is absolutely ridiculous.  There’s a big difference between establishing consent based on a look in someone’s eye, and making the decision not to affirmatively ask, and feeling instinctive, gut, fear based on a look.  Any look at the way women are raised in this society, and the fears men instil in us from a young age, would prove this point.

Finally, I also think the BDSM model is instructive on Adams’ other argument, that someone can say one thing and mean another.  In any communicative system of sexuality, part of the deal is an implicit agreement to be open and honest in communication.  This may mean that things move slower, and one or both parties may have some issues to get past in developing trust and an ability to be open.  But I think such a model entails responsibilities for both partners – first, to ask questions and affirmatively establish the partner’s desire, which includes paying attention to any red flags that come up, such as discomfort in the conversation itself; second, to be open and honest about one’s own desires, and to refuse to go forward with a sexual encounter if one is unable to do so.  Of course, without such a system, the fact is that there will be cases where a person says “yes” in an affirmative, enthusiastic way, not really wanting a sexual encounter.  In such a case, it’s hard to blame the other party – and I think the communicative model accounts for this, in that when genuine communication and affirmative assent is established, there is no rape.  But I think what it means for the big picture is that as sexual partners we need to pay close attention to how our partners communicate consent, and be on the lookout for signs that it is not enthusiastic.  At the same time, as a culture, we need to work on making it easier for women, especially, to say “no,” and not make genuine feelings about sex something that women need to be embarrassed about or feel a need to keep secret.

IDAHO

Yes, I know I’ve kind of abandoned ship lately.  But never fear, I shall return!  I only have a month left of law school so I’m hunkering down and then joyously returning to blogging.

That said, I really wanted to get a quickie out there for the International Day Against Homophobia and Transphobia, which is focusing on transphobia this year.  I thought this was particularly appropriate for me personally, because in the past year I’ve been thinking a lot about gender identity and am very thirsty at this point to learn more.

Though I was always conscious of the “T” in LGBT, I think I’ve spent a lot of time being at least partially transphobic, and very trans-ignorant.  The Global Arc of Justice conference really helped me understand how broad the fight for transgender rights is, though, and some personal acquaintances as well as some books I read helped clarify what gender identity is really about.  There are a lot of different ways to experience gender – it isn’t just male, female, FTM, or MTF.  Some people identify entirely as their “destination gender” after transition, and don’t want to be referred to in any other way.  Some identify strongly as transmen or transwomen.  Some prefer something more fluid, and don’t identify as trans but rather as genderqueer or something similar.  Some go from being a “straight male” to a lesbian, some from “straight female” to straight male, some stay bisexual or pansexual the whole way through.  Though I don’t think our society has very many set-in-stone stereotypes about gender identity, because we tend to simply cover up the variations, it’s definitely a bigger world than I initially thought, and it’s important to recognize these differences when thinking about discrimination, rights, and/or the law.

There have been some great steps in the law lately, perhaps most notably the House’s passage of the Matthew Shepard Act (c’mon, Senate!)  A lot of people think of this as a hate crimes bill to protect gay and lesbian people, and it does expand our protection, but actually we’ve already got a lot of it.  Trans and intersex folks have nada.  So this law would be a great step, but at the same time, there are a lot of things that need to happen that aren’t happening.  We need to educate ourselves about gender and not be afraid to discuss it, to ask questions, to teach our kids about different gender identities.  We need to educate law enforcement (big time).  And those of us who don’t really understand need to ask, read, educate ourselves, and become activists.  We also need to learn to listen.  I think a lot of people in the LGBT movement (myself being one) have a tendency to think we know what transpeople need (and intersex people, if we even consider their existence).  We lump transfolks into the gay rights movement and then get bitchy when they intrude on our women-only space.  I admit that when I first heard about the Michigan Womyn’s Music Festival incident, I was a little unsure about my opinion.  I wasn’t sure I wanted someone with a penis in a woman-only space, because I will freely admit that I hate and deeply fear the penis at this point in my life. But on the other hand, well, that’s my problem.  I need to get over it, or not show up.  We don’t have a right to identify as women if we’re going to exclude others who choose to do so.  My own acceptance is coming along slowly, and I appreciate any help from trans, intersex, and genderqueer folk who have advice or opinions, but I also know that it’s not your responsibility to fix my fuckups.  I think we all need to take responsibility for the discrimination and plain stupidity we’ve exercised in the past, and figure out how to do better in the future.  Hopefully this year’s IDAHO focus will be a strong first step.

Why Marry?

With all the talk that’s been going around about gay marriage and the benefits of marriage (and in some academic circles, the idea of abolishing marriage or using alternatives to marriage), I thought I’d try just for fun to brainstorm a list of reasons why people marry.  I’m not pro- or anti-marriage; I actually think that everyone, gay and straight, should have the option to marry but should also have another option that allows for certain benefits and obligations without the label or the full legal package of marriage.  This is just sort of an interesting thought experiment.  Feel free to add your own in the comments!

  1. Economic/social status conferred by marrying a particular person.  This might take the form of a bump up in an individual’s class in some societies, money or property passing through the marital relationship (whether by virtue of laws that dictate how property can be owned by a married person or through a gift like a dowry), social connections based on the spouse’s personal and business relationships, family connections that lead to a step up in business or otherwise, etc.  Also falling under this category would be unique benefits that come from the spouse’s abilities: example, marrying a woman who’s great at hosting parties gives a man a business advantage.
  2. Economic/social status conferred by virtue of the institution of marriage.  These are benefits that accrue by virtue of simply being married, regardless of the individual spouse.  Being married in some societies is/was a symbol of adulthood.  There might be tax benefits due to marriage, or other tangible economic benefits.  In the modern U.S., for example, there are plenty of people who marry because of health insurance benefits or tax situation.
  3. Legitimacy of/benefits for children.  In many societies, marriage was/is the only acceptable environment for child-rearing, so getting married would benefit the child as well as the parents.  If divorce is acceptable, this is also a common reason not to get a divorce.  Benefits range from economic incentives to avoiding social stigma for the child.
  4. Legitimating sex.  Marriage is often the only social acceptable relationship in which sex can take place, and also once a couple is married, they tend to escape sexual scrutiny.  Whatever your kinky sexual preferences, the law and society are likely to ignore them within the “sanctity” of the marital bed.  
  5. Avoiding suspicion.  A related reason to marry is that a particular culture may look at young single individuals with suspicion.  If marriage is the social norm, then there is a lot of pressure to marry, and to do what’s expected.  This may include family pressure, peer pressure, etc.  I’m also thinking of those who do have something to hide, like gay men and lesbians who would marry one another in the 1950s and continue to have sex with other people, or gay individuals throughout history who married someone of the opposite sex in order to keep others’ eyes away from their sexual encounters with the same sex. 
  6. Love/companionship.  Especially in modern times, it seems like love is a big reason to get married.  Society tells us that once you find that “one true person,” the logical next step is to propose.  It makes sense to mark companionship with a legal relationship, and this also ties in with some of the benefits – for example, if you love someone you may want to be sure they are taken care of when you die through the inheritance laws.  Marriage also shows others that you’re serious, and serves as a sign of long-term commitment.  

Others?  I’m sure there must be many more; this is just off the top of my head.

Some preliminary thoughts on the Varnum opinion

At the moment, I’m in a fabulous and fascinating conference on CRT and ignoring it because I’m so excited about this opinion.  More thoughts to come, but I wanted to post a few initial observations.

1) The opinion was unanimous, and they applied intermediate scrutiny (not dismissing strict, but not reaching it because of the result under intermediate).

2) The language is absolutely beautiful.  Let me share my favourite quote: “Our responsibility… is to protect constitutional rights of individuals from legislative enactments that have denied those rights, even when the rights have not yet been broadly accepted, were at one time unimagined, or challenge a deeply ingrained practice or law viewed to be impervious to the passage of time.”  YES!  The whole history/tradition thing was a big deal in oral arguments, and I’m so glad that the Court continues to embrace an evolving notion of equal protection under the Iowa Constitution.  Iowa has an amazing history when it comes to equal protection, and this is just another example.

3) I loved their basically saying that it’s absolutely ridiculous to argue that there’s no classification being made here because gay people can marry someone of the opposite sex just like straight people.  Thank you!

4) They also did a great job on the procreation/child-rearing arguments, which were a big focus of this case.  Dennis Johnson gets big credit for the way he argued this point, and the Court bought it.

Finally, if you’d like a step-by-step breakdown summary of the ruling, you can read my article:

iowa supreme court mandates same-sex marriage

Excuse me a minute while I squeal…

IOWA HAS GAY MARRIAGE!!!!!!