Esthetics and Methods in the Study of Sexual Rights

Esthetics and Methods in the Study of Sexuality and Legality

It is not uncommon today to conduct our research through electronic databases, searching for key words or relying on the synthetic predictive powers of Google Scholar and other indexes to map our fields of inquiry. These digital research techniques are powerful and focused, but they have changed the ways in which many of us read and think about the journals that select and edit our scholarship. Journals are increasingly assessed on the digitally derived citational ‘impact’ of individual articles. And our own reading may be prompted by electronic ‘alerts’ that direct our attention within predetermined trajectories. Often lost in this utilitarian and commodified way of seeing are the subtle meanings that journal editors give to selections and collections that shape our intellectual fields and the broader but diffuse political, social, and esthetic influences that journals bring to the kinds of work that maintain our engagement as scholars.

As we celebrate the 25th Anniversary of Social & Legal Studies, it is hard not to look at these subtler factors as most worthy of mention and renewed cultivation. For, while SLS has made an enduring impact in sociolegal studies by many digitally observable measures, its sustenance of a particularly vital and critical vision for the study of law around which a community of scholars has collaboratively written, reviewed for peers, and edited has – often unnoticed – built and sustained the problematics we have individually and collectively engaged and developed. In this article, I want to reexamine the original vision for this journal and assess its significance today for studies of sexuality and law. Social & Legal Studies was the first sociolegal journal to extensively attend to this area of scholarship and to explicitly embrace a queer legal and political agenda. How productive has this framework for studying law been, and how well does it serve our current needs as critical scholars of the law? As we mark a quarter century of scholarship published in this journal, what intellectual vision should now guide this Journal?

This stocktaking comes at a propitious time within queer legal studies, and it highlights the historical arc of the journal that encompasses one of the most dramatic sociolegal phenomena since the rights revolution (Epp, 1998). In 1993, a year after the journal first began publication, a state constitutional challenge to the denial of a marriage license for three same-sex couples in Hawai‘i produced the first legal acknowledgement of the legitimacy of the claim for ‘same-sex marriage’ ( Baehr v. Lewin, 1993). The Hawai‘i Supreme Court did not find a fundamental right to same-sex marriage. Nonetheless, by remanding the case due to a finding that the denial of a marriage license could affect the right to be free of discrimination on account of sex (gender), the Hawai‘i court became the first high court to acknowledge that a demand for same-sex marriage stated relevant legal grounds. This case began a seismic rumble through American politics, inspiring social movements in support and against as well as legislative efforts to seize control of the issue, while the legal acknowledgment of same-sex marriage diffused internationally. In this Journal’s 22rd year, the United States Supreme Court in Obergefell v. Hodges (2015) ruled that same-sex marriage was a constitutional right, following statutes and legal rulings in the Netherlands, Belgium, Spain, Canada, South Africa, and 13 other countries. The speed of this (still ongoing) trajectory from legal idea to legal right is remarkable on its own. Additionally, this rapid change has also catalyzed a tremendous amount of theoretical work about social movements and the law, the biopolitical frameworks in which rights and equality are imagined to inhere, the pathways of legal diffusion, and the consequences for social justice, among many other issues that have been central to the aims of this journal and queer activists alike. While the assessment of what the struggle for same-sex marriage has wrought for the lives of sexual minorities is still ongoing, the assessment of its productivity for sociolegal scholarship is important today.

What might it mean to think this assessment from the perspective of a sociolegal journal’s critical interventions in the field of law? Max Weber argued that modern law was driven by a logically inflected rationalization that made it increasingly autonomous of other systems of meaning in an effort to generalize its applicability. Captivated by its internal formalisms, law was thus ‘disenchanted’ (Weber, 1958), but as it became more abstract it was also challenged by efforts at reenchantment, that is, designs to bring it into conversation with other domains of knowledge with the expectation of some ethical good.

New demands for a ‘social law’ to be based upon such emotionally colored ethical postulates as ‘justice’ or ‘human dignity’, and directed against the very dominance of a mere business morality have arisen…advocated not only by labor and other interested groups but also by legal ideologists,

Weber observed at the turn of the Twentieth Century (1978: 886). The move to incorporate sociological knowledge in the law was one of these efforts at reenchantment, but Weber was reluctant to acknowledge that the fusion of sociology and law could ever give substance to these ‘emotionally colored’ critical demands for justice as a product of knowledge.

The contemporary political theorist Jacques Rancière is likewise skeptical that sociological ways of thinking can produce a critical knowledge. Rancière emphasizes political esthetics with explicit reference to disciplinary knowledge. ‘The political and…aesthetical are strongly interconnected’ for Rancière because politics should not be seen ‘as a specific single world but as a conflictive world: not a world of competing interests or values but a world of competing worlds’ (Rancière, 2003: 5). Esthetic knowledge is constituted by what Rancière calls ‘the distribution of the sensible’ which is

a delimitation of spaces and time, of the visible and the invisible, of speech and noise, that simultaneously determines the place and the stakes of politics as a form of experience. Politics revolves around what is seen and what can be said about it, around who has the ability to see and the talent to speak, around the properties of spaces and the possibilities of time. (Rancière, 2004: 13)

Sociological knowledge for Rancière doubles down on closing the gaps. No longer organicist as it was at its origin, even critical sociology

continues for the benefit of science, to want what science wants for the good of society, to understand the rule of correspondence between social conditions and the attitudes and judgments of those who belong to it. The scientific war against the allodoxy of judgments continues the political war against ‘anomie’ of behavior, the war against the aesthetic and democratic unrest of the division of the body politic within itself. (Rancière, 2006: 7)

Looking Backward

In the same year that the Law & Society Association was roiled by Handler’s (1992) presidential address lamenting the undermining of ‘grand narratives’ generated by the esthetically influenced siren songs of postmodern theory and the chorus of new social movements (explicitly including ‘feminist, and gay and lesbian’ movements), Social & Legal Studies composed a different tune. Calling it a ‘new venture in the field of the sociology of law’ designed to ‘break[] down disciplinary as well as international barriers’ (Picciotto et al., 1992: 5–6), this Journal sets itself four goals roughly commensurable with Rancière’s defense of political esthetics in order to carve out a new scholarly space for thought. First, it was committed to critical scholarship in such a manner to promote debate and dissensus rather than ‘reiteration or rehearsal of specific lines of argument’. Second, this Journal would promote non-Western perspectives on law, regulation, and criminology which were ‘at risk of invisibility on the international scene, leaving dominant Western traditions and perspectives unmoved by their potential challenge’. Rather than comparative studies which sometimes sought general and universal truths, this Journal encouraged work ‘grounded in a specific location, culture and intellectual site’. Third, it would seek ‘the advancement of accessible theoretical approaches which enhance analysis and explanation rather than providing description or reports’. By highlighting accessible local knowledge, accepting various strands of critical knowledge (including the Continental philosophical traditions increasingly affecting Anglo-American critical thinking about law), and eschewing the universal enlightenment foundations undergirding many comparative frameworks, these three goals together took aim at the structuralist arguments of some Marxist legal theorists (Balbus, 1977; Fine et al., 1979) and their Critical Legal Studies variants (Gabel, 1980; Unger, 1986).

Finally, the Journal committed itself to the integration of ‘feminist analyses at every level of scholarship’, explaining ‘we want to give space to “minorities” within minorities – so work from lesbian and gay perspectives will find a home here’. The nesting of sexuality within the ambit of feminism curiously paralleled the commensurate arguments of the Hawai‘i court that had found the key to equal marriage rights embedded in the feminist constitutional commitment to gender equality (a position already advanced theoretically in the academy, Cornell, 1992; Koppelman, 1988). However, just as that Court refused to protect sexuality as a suspect category of its own, analogizing gay inequality to gender subordination could be as much Rancière’s ‘police’ as it was a new way of seeing. The intersectional image of nested sexual minorities abutting the aspiration of feminist analysis brought to every level of scholarship seems to both affirm and supplant structural thought. Such a formation made identities appear both locatable and evanescent as they exemplified broader ideological or structural forces of gender. The epistemological promises of what gender analysis could do for legal analysis, and what gay and lesbian perspectives would add, seem to rest in some tension, but in productive ways, seeking space in which to understand the complex interactions of various social forces. Certainly, the uneasy incorporation of poststructural thought into feminism (Butler and Scott, 1992; Card, 1991; Halley, 2006: 221–227), and the rumbling impact of queer theory challenging the coherence and significance of identities and identitarian sexual politics (Butler, 1990; Halley, 1989; Sedgwick, 1991) that was soon to erupt in the academy (cf. De Lauretis, 1991; Duggan, 1992; Foucault, 1990; Sedgwick, 1990; Stein, 1993; Warner 1993) could be seen to be welcomed in this formulation. Differences between legal ‘minoritarian’ issues about sexuality and those more universal forces constitutive of gender (Sedgwick, 1990: 130) could be imagined as esthetic gaps, spaces of dissensus in which to reimagine ways of seeing the law. And it was a novel and important ambition. The Law & Society Review did not publish on issues of gay or queer politics until several years later (Bower, 1994) and only sporadically thereafter; Law & Social Inquiry not for another half dozen years. Feminist Legal Studies, which began publishing in 1993, was the only other critical journal to share some of this ambition.

Rather than dwell at length on the shape of this Journal’s inaugural statement, I now analyze how these legal concerns played out in the early years in order to delve further into the space this journal created, particularly for studies of sexuality. The early years of publication – and I have arbitrarily chosen the first five – were an opportunity to demonstrate the kinds of theoretical work that this Journal would value, especially because a number of these early pieces were written by the editorial personnel. I find three major themes in my review. The first was that law was understood as process and as ‘decentered’ (Scheingold, 2004: xxii), involving multiple layers of legal meaning rather than being concentrated in institutional action or reflecting superstructural foundations. For feminism, this meant that research into law should eschew structuralist or monolithic accounts of patriarchal or sexist overdetermination of legality. Law was a site of struggle rather than a tool of struggle (Smart, 1992: 30) and the question was ‘How does gender work in law and how does law work to produce gender?’ (Smart, 1992: 34). The desire of legal theorists to say something about law has sometimes acted as a centripetal force resituating law at the center of thinking and inflating its productive effects; as Smart framed this concern

The desire to be political has been confused with the desire to be practical, and thus law has continued to occupy a conceptual space in our thinking which encourages us to collude with the legalization of everyday life. We must therefore remain critical of this tendency without abandoning law as a site of struggle. (1992: 40)

While this decentering of law could be seen as part of a deconstructive agenda, explaining and challenging law’s singular and central account of itself, Sara Ahmed stressed the importance of moving beyond deconstruction. Law maintained an integrity as a system, always threatened by other discourses, but acknowledging and internalizing certain exclusions.

In this sense, speaking from ‘outside’ of law is an impossible position, or a position which reveals the impossibility of sustaining law as an integrity, of excluding or repressing the terrain of the non-legal, the realms of subjectivity, the body, ethics and politics. (Ahmed, 1995: 55)

The internal maintenance of integrity made law like a body, with utility for feminist theory once the body was understood as a process that gendered and sexed itself. While some contemporary feminist jurisprudence refused the gap between law and embodiment (MacKinnon, 1982), Ahmed drew from queer theory (Butler, 1990, 1993) to suggest that law might play a discursive role in the boundary setting allowed by ‘a radical discontinuity between sexed bodies and cultural constructions’ (Ahmed, 1995: 58). Deconstruction was, therefore, insufficient for a feminist politics ‘because it is not a pragmatism: it does not detail the specific content of laws and their effects according to regimes such as gender’ (Ahmed, 1995: 63).

Ahmed’s theoretically rich framework mapped a broad set of relevant inspirations – from queer theory to Derrida, Luhmann, Drucilla Cornell, and others – to counter the feminist structuralism that made law a problematic site for activism. Herman (1993) challenged Fudge and Glasbeek (1992) who had, contemporaneously with Handler (1992), made a similar reductionist structuralist claim about capitalist domination and the law. Reading from this temporal vantage point, Fudge and Glasbeek’s argument seems anomalous in the early years of this Journal, productive mostly because of the alternative sensibilities it provoked. Focusing on gay and lesbian politics, Herman opposed these authors’ excoriation of new social movement activism that they claimed had offered no challenge to hegemonic power. ‘Models of law as a ruling-class instrument incapable of being “transformed” are seriously put into question by the fact that lesbian and gay movements have succeeded in achieving various forms of transformation’ (Herman, 1993: 32). Herman was careful to argue for the complexity attendant on activism oriented to law, however. Lesbian and gay rights arguments could entrench rather than transcend the hetero/homo binary, just as legal struggles could enhance right wing identities as well as attenuate and deradicalize them (Herman, 1993: 36, 38). Agreeing with Laclau and Mouffe (2001) against Fudge and Glasbeek, Herman argued that progressive politics demanded an effort to build links across movements sometimes through legal struggles, avoiding faith that ‘sexism, racism and compulsory heterosexuality will disappear if we transform the economy’ (Herman, 1993: 40).

The approach to law as a process was significantly related to a second theme of this early work, its antifoundationalism. Although North American scholars pursuing decentered sociolegal studies had theorized legal consciousness and legal mobilization to show how individuals constructed legal meaning (Ewick and Silbey, 1992; Merry, 1990; Milner, 1986; Sarat, 1993), their work rarely considered or analyzed the ways in which law constructed meaningful identities. This Journal’s focus on gender and sexuality, particularly its engagement with an emerging queer theory and a burgeoning activism around gay and lesbian issues that American journals were not as attentive to, allowed law to be seen as one element of a ‘technology of gender’ (De Lauretis, 1987; Smart, 1992: 40). Without a need to affirm ‘Woman’ as a stable, essential, or biological identity, law produced gender difference in Smart’s view as a double strategy, strategically affirming the foundationalist Woman in distinction to Man, while discursively constructing the type of woman (such as the criminal or ‘bad mother’), making women both abnormal and natural, a tension or esthetic gap that political struggle could affect. Affirming Foucault’s insight that strategies and knowledge produce subjects, law was seen to produce the identities that it policed.

A number of early articles engaged and extended these antifoundationalist insights. Collier (1992) explored technical knowledge of sexuality and the legal construction of sexual intercourse to reveal the discursive construction of the heterosexual male, particularly the binary drawn between the virile and the impotent. This denaturalization of the heterosexual, an implicitly queer project, demonstrated that representations of heterosexuality in law ‘are mediated, infinite and bound up within the play of power relations. Above all they are political. Alternative social organization is always possible and sexuality and social dis/order is reconstituted in every social interaction’ (Collier, 1992: 558). Analogous to the productive role of the impotent male, Thomson (1997) studied the ‘monstrous’ construction of the infertile woman in British legislation regulating access to reproductive technologies. He showed the ways in which the gatekeeping role of medical personnel divided the deserving heterosexual from the asexual single woman and lesbian, responding to a moral panic about the integrity of the family. Moran (1995) studied the legibility of homosexual sadomasochism (S/M) as assault in the British courts in an effort to map the ‘juridification of the male body’, a construction of masculinity that he showed to be anxiously concerned with the contrast between the unruly, out of control body that S/M signaled and the rational violence of the law. Those involved in S/M were a sacrifice for the sake of rational gender relations under law: ‘(Homosexual) S/M as victim is put to work as a substitute for the men and women of the community who are the actual possible objects of this homosocial and heterosocial violence’ (Moran, 1995: 242). Phillips (1997) brought an important international perspective on these processes, studying the ways in which the law in Zimbabwe proliferated the image of gays as ‘White’, which made sexuality into a prominent and contested discourse in the construction of Zimbabwean social and nationalist identity.

A third pertinent dimension of this Journal’s early work was the relationship of rights to sexual and gender justice movements. The Journal shared a healthy skepticism of the romanticism of rights talk (Ahmed, 1995; Herman, 1993: 25, 40) and a recognition of the racial, gender, and Native exclusions associated with legal persons (Diduck, 1993: 471), but early work also suggested that struggles over rights in particular contexts were useful political interventions: these struggles might ‘disrupt the systematization of gender asymmetry in all aspects of social life’ (Ahmed, 1995: 64) and could even contribute to a queer effort to question the stability of identities and undermine logics of gender (Stychin, 1996). While other journals pursued critical work at this time showing that the value of rights was dependent on adequate resources and that they held complex meanings for individuals, this Journal embraced research into gender and sexuality that was attentive to and helped to develop a queer sensibility for legal analysis. Stychin’s (1996) tour de force took aim at the US exclusion of gay and lesbian men and women from military service. He asked whether rights to antidiscrimination protection on the basis of the status of ‘sexual orientation’ were ultimately a ‘futile strategy for combatting heterosexual hegemony’ as many queer activists were claiming. In his analysis of the tenuous relationship between homosexual acts (still potentially criminal at that time) and identities, Stychin showed that rights to be out in the military had the capacity to reveal the fragility of heterosexual ideology.

If employed strategically and provisionally, status-based Equal Protection claims do not so much give away the sexual terrain as bring to light the ways in which heterosexuality (and particularly heterosexual men) have been constituted in such a way as to create a desexualized space of homosocial but not ‘homosexual’ relations. The fixity of the hetero/homo binary then is open to challenge as the definition of a sexual act itself might be contestable. (Stychin, 1996: 185–186)

These three themes of approaching law as deconstructable process, as consequential for the performative aspects of nonessentialized identities, and as potentially destabilized by highly mobile rights claiming set a unique agenda for the study of gender, sexuality, and law. It revealed the importance of scholarship about and for ‘sexual minorities’ for critical sociological jurisprudence generally, demonstrating the limits of structuralist and modernist approaches. By mapping the potential disruptions between rights, identity, and legality, this Journal encouraged a speculative attitude which became the hallmark of this early scholarship. Although mainstream legal scholarship long permitted normative argument, this speculation correlated well with the political effort of many sexual activists to create disruptive potentials that could transcend the ‘virtual equality’ (Vaid, 1995) and change the master narrative of civil rights. It was refreshing to read sociolegal scholarship that began with the disclaimer ‘I do not have a conclusion’ (Davies, 1994) and was not afraid to conclude ‘if conduct no longer can be read accurately or even interpreted as “homosexual,” then a universality might begin to pervade same-sex acts. This universality renders the homosocial acts of the military subject open to being read as erotic’ (Stychin, 1996: 197; emphasis added). The acceptability of publishing work emphasizing the importance of new ways of reading and seeing inspired a number of scholars – including myself as I worked on the rights politics of same-sex marriage (Goldberg-Hiller, 1998, 2002) – to think less liberally and more radically about the political potentials that law and rights held for those social movements trying to encourage emergent identities and contest the structures of old oppressions. It told us that legal scholars could think along with political actors rather than for them.

Looking Outward

These advances made in this Journal’s formative years are well worth celebrating. Sexual and gender justice continues to be an important political focus for this journal, and while attention to these issues remains more prominent than in other non-specialized sociolegal journals, it no longer stands uniquely alone. In an era where many journals now make space for analyzing the politics of sexuality, does there need to be a particular intellectual agenda, and should it look like the one at this Journal’s founding? I use the following brief review of relevant literature to reflect on these questions.

I first turn to rights issues, in light of the long arc of the marriage equality movement. The demand for rights asserts an unseen norm of equality to reveal gaps in a given esthetic/political order in Rancière’s framework, and scholarship has with renewed vigor assessed the transformative potential of successful rights claims by analyzing the ossification of the social and political landscapes forming around these victories (‘police’), as well as the emergent terrain for renewed political engagement. Early cautions that the political triumph of marriage equality would not dismantle male authority in the family or produce freedom for gays and lesbians (Homer, 1994; Polikoff, 1993) have blossomed into an immense critical scholarship on the economic, political, and social structures of normalization. Even after the legal destruction of sodomy statutes seen as ‘crucial to the ordering of sexual-orientation identities, particularly to the subordination of homosexual identity and the superordination of heterosexual identity’ (Halley, 1993: 1731), gay and lesbian cultural acceptance and equality rights fail to retard and sometimes create ‘homonormative’ pressures that reinscribe heteronormativity and demobilize and depoliticize gay culture (Cooper, 1994; Duggan, 2002; Franke, 2004; Yoshino, 2002), produce ‘repronormativity’ that prioritizes heteronormative protections for child-rearing (Edelman, 2004; Shultz and Shultz, 2016; Zivi, 2014), and contribute to ‘homonationalism’ and ‘settler homonationalism’ that enhance geopolitical security and suppress indigenous sovereignty by demobilizing and remobilizing certain queer bodies (Morgensen, 2010; Puar, 2006). For sexual activists advancing rights issues, ‘new inclusions may produce new exclusions’ (Barker, 2012; Leckey, 2015: 4), not only among divergent elements of gay and queer communities but also in regard to other subordinated communities. It is notable that the 2013 ruling of the unconstitutionality of the American Defense of Marriage Act cheered by many gay and lesbian activists occurred contemporaneously with the Supreme Court’s gutting of the Voting Rights Act protecting African American voting rights as well as the limitation of Native sovereignty in a case restricting the Indian Child Welfare Act (Byrd, 2017; Ferguson, 2015: 159). This conjuncture reveals the complex interactions between a politics that imagines new legal spaces for action, identity, and desire, and governmental efforts to reassert dominant ordering and hierarchy. The juridical demands for state recognition of rights and citizenship appear tightly imbricated with renewed biopolitical forces, making rights strategies politically fragmenting.

Do these intersecting forces that have grown with the increasing visibility and legal success of lesbians and gays challenge the efforts begun in this Journal to find a balance between what rights gain, and what they ultimately cost? Is this ledger even a useful metaphor for where our studies should now go? Clearly, one response by feminists and queer scholars has been to find alternative languages such as care, precarity, and security that might produce new opportunities to think about sexual, gender, and economic justice issues not captured by a direct engagement with rights, state recognition, and the institutions of marriage or military service that have dominated recent agendas (Butler, 2009; Fineman, 2008; Jakobsen, 2015). These turns away from the juridical subject do not always acknowledge the ways in which that subject and the desire for state recognition continue to dominate political imaginations. New political formations continue to emerge around juridical and rights-based notions of belonging and citizenship (Stychin, 1998) and can serve as challenges to the forms of normativity comprising contemporary governance (Cooper, 1998).

However esthetically novel in their attempts to see problems in new ways, these challenges are not always politically progressive. Conservative groups do not just react against rights demanded by gay and lesbian groups to reestablish traditional ways of life (Buss and Herman, 2003; Herman, 1997a); they also exacerbate neocolonial violence (Bosia, 2014), augment patriarchal power (Collier, 2015), and create new sensibilities of equality to reimagine their own sense of vulnerability, the meanings of citizenship, and the ends of sovereignty (Goldberg-Hiller, 2009). The ‘conscientious objection’ against public accommodation laws in the aftermath of equal marriage rights in the United States is one example of the development of new conservative ideas based on images of cultural vulnerability that emerged in earlier struggles. Selling flowers or cakes for same-sex weddings is claimed to violate religious rights, a type of injury akin to that upheld by the Supreme Court that ruled in 2014 that corporate owners’ religious freedom would be injured by requiring them to indirectly fund objectionable birth control for their employees. In these cases, conscience is illiberally understood to be vulnerable to the moral choices others make. The ability of conservative groups to use the opposition to rights for their own political ends militates against the conceptual idea of ‘backlash’ (Herman, 1997b) that reinforces linear and incrementalist notions of historical change. Certainly, the reaction within some aspects of queer theory against this progressive futurity (Edelman, 2004; Halberstam, 2005; Muñoz, 2009) suggests that one place to continue a productive study of rights is to focus on temporal disjunctions within sexual rights politics. Stripped of linearity, there is no ‘after’ to equality that is not both structural ‘police’ and potential ‘politics’ in Rancière’s terminology.

Queer and gay/lesbian identities have been associated with divergent orientations to the efficacy of rights for sexual justice issues, which has remained an unresolved tension in the literature. This Journal pioneered queer critiques of rights without abandoning the rights project. A number of areas reinforce the vitality of this agenda, three of which I briefly sketch here. Struggles over gay rights within unions have shown labor’s receptivity to demands for sexual rights (Frank, 2014; Hunt, 1999), but Tiemeyer (2013) has shown that the broad recognition of gay rights issues and equal benefits for flight attendants was partly granted as symbolic support for neoliberal niche marketing to gay patrons, at the same time that workers’ salaries diminished. Nonetheless, the ability of activist workers to make ‘the plane queer’ dramatically augmented the visibility of gay lives. Continued studies of unions and other collective forms of ‘queer work’ (Bérubé, 2011) as spaces where economic and sexual rights converge may continue to reveal the radiating effects of rights (Smith, 2016).

Human rights have often marginalized queer sexualities as they express norms most prominent in the west. Anthony Langlois has suggested that academic and political attention to the political ethos of the human dimension of human rights may alter the focus from state and international machinery for deploying rights to the ways in which queer sensibilities embedded in various communities of the global south might begin to infuse human rights in ways that are meaningful for queers generally (Langlois, 2017; Wilkinson and Langlois, 2014). This transnational diffusion of ideas from the globe’s most vulnerable to the global north suggests a gap in sensibilities valuable to a continued exploration of rights.

Activism challenging the ‘administrative impossibility’ (Spade, 2011) of transgender lives may also be a useful topic for analyzing broader meanings of rights. Currah (2017) and Currah and Minter (2000) have argued that while struggles for rights for transgendered people have often invoked and provoked biopolitical forms of knowledge about the true, essentialist meaning of gender, identity politics does not corrode the ability of variously identified transgendered activists to work together to broaden the meanings of legal protection to a narrow class. He writes, ‘Agreement on the origin of gender is not required to challenge the ability of employers and judges to force people to adhere to gender norms. What is required is a shared commitment to the political value of gender equality’ (Currah, 2017: 451). Taking a break from identity issues may be one of the queerest moves to make in studying rights conflicts and their potentials for sexual justice.

Nonetheless, we should remain attentive to structural issues that have become more prominent since the founding of this Journal as we explore the capacity of rights and legality generally to catalyze broader movement politics. While there is extensive creativity in conservative activism warranting its continued study on its own grounds, there is also significant discursive convergence between right wing and liberal struggles that demands increased attention. For instance, there is some agreement around the ‘repronormative’ values of family shared by some supporters of same-sex marriage rights and their opponents (Zivi, 2014). But, as queer of color critiques (Eng, 2010; Ferguson, 2004; Munoz, 1999), studies of Islamic queers in Europe and elsewhere (Abraham, 2009; El-Tayeb, 2011, 2012; Massad, 2007) and work within Critical Indigenous Studies (Barker, 2017; Smith, 2010) have shown, there are subtler forms of discursive and political collusion with racial and imperial ideologies and practices among activists of the right and left, even affecting queer politics. As queer theory has made a ‘subjectless’ turn deconstructing any proper subject or political referent (Eng et al., 2005: 3; Rosenberg, 2014), a move designed to resist the pull of liberal recognition politics, it has perhaps ‘unwittingly put[] in place a racialized subject that bears the burden of subjectivity’ (Rosenberg, 2014, n.p.). Stripped of all particular markers of difference, the unmarked White, male norm of citizenship (Warner, 2002: 165) is implicitly recreated within some queer theory, and itself exposed by queer of color critiques that explain sexual normalization as a function of the hidden intersectionalities of race and gender on which the privilege of an endless deconstruction of identity depends (Chen, 2012; Ferguson, 2004; Somerville, 2000). The fact that gay rights have been advanced in the United States by analogies to racial civil rights (Jakobsen, 2003; Konnoth, 2009; Richards, 1999) at the same time that racial protections are withdrawn suggests that the implicit commitment to a universal form of belonging mediated by state recognition implicates the racial and gender exclusions on which it rests.

Critical Indigenous Studies has built on settler colonial theory (Wolfe, 1999, 2006) to extend this intersectional critique. These studies have revealed the ways in which the queer effort to critique from a subjectless position is not only racially complicit, but tends to work in concert with settler ideologies and policies that – even when they selectively celebrate indigenous ideals relegated to a past (Povinelli, 2011) – deny many living Native peoples control of ancestral land, freedom of cultural practice, and political self-determination. As an expression of this dynamic, this work has drawn attention to the irony that while Native peoples are analytically negated within some subjectless queer theory, they are also sometimes conscripted by queers seeking inspiration or validation for alternative sexualities and genders in the historical or imagined ways of precolonial Native life (Bravmann, 1997; Morgensen, 2011; Rifkin, 2014). This assertion of affinity helps root queer erotics and being in the oppressive conditions supporting the settler colonial state. Many non-Native gays and lesbians who have argued for civil rights as a means of inclusion and citizenship have likewise failed to acknowledge the ways that civil rights, often embedded in multicultural or neoliberal norms of diversity, fail to include Native interests and disavow indigenous claims to land (Kauanui, 2017; Trask, 1993).

These sophisticated critiques that have emerged since the founding of this Journal raise particular questions about the ‘“minorities” within minorities’ image originally justifying attention to gay and lesbian issues. From one angle, it is clear that many legal arguments for gay and lesbian rights have depended on the master narrative of civil rights and the nested Russian-doll analogies linking gender, race, and sexuality it has produced. Minorities within minorities shares this legal logic, and still points toward the productive scholarly efforts to critically locate the esthetic gaps and political logics of equality articulating these analogies. From another angle, Critical Indigenous Scholarship implicitly points to a different notion of equality with its own political logic: that which can be articulated as the equal respect generated from a sovereign to sovereign relation. This politically generative understanding of equality – what Rancière might see as ‘a world of competing worlds’ – has affinity with feminist critiques that argue gender neutral laws still miss gender inequality in the family (Boyd, 2015), a nested relationship that is partly naturalized by colonial images of proper and ‘civilized’ gender and family order. Bringing attention to this other notion of equality might open scholarship on sexual rights in ways similar to what it has frequently done for feminist analysis.

This new structuralism also suggests that the image of nested identities and oppressions must be made more complex. As queer sexuality has become decriminalized in the west, other sites of analysis may be useful to reveal these dynamics. One focus might be love, which has been articulated as a political and legal foundation for extending marriage equality in many campaigns (Harding, 2015: 187; Taylor and Bernstein, 2013). Same-sex love is politically charged not only because its disavowal may be key to stabilizing gender identity (Butler, 1993: 235) but also because love may be disciplinary in other ways, as well: a move toward civilization (Eskridge, 1996) or ‘a boot camp for compliant citizenship’ (Kipnis, 2003: 46). To the extent that it becomes a medium for state benefits, it is complicit with neoliberal privatization (Cott, 2002; Duggan, 2002). Along with its ‘civilizing’ aspects, love also fulfills a political role within settler colonial societies, contributing to the imagination of the self-governing subject in contrast to the tradition-bound indigenous cultures that liberalism attentively supplants (Povinelli, 2006). And the denial of sexual freedom in some African countries that have maintained colonial-era sodomy statutes has also been linked by some human rights advocacy groups to a rejection of love (Thoreson, 2014), transforming the (post)colonial subject from one whose ‘savagery’ (Fitzpatrick, 2001) is expressed in sexual perversity to one whose savagery is tied to sexual intolerance. That love may express so many valences suggests it might be used as an intersectional and transnational lens, linking economics, colonial dynamics, race, and gender.

Discursively, love is produced within, and helps to support in turn, various forms of power. Yet, as the legal history of love and marriage attest, love is a plastic notion. This Journal early attended to children as a particular focus of concern, particularly the relationship of sexuality to love within the family that plays out in education, adoption, fostering, and divorce, as well as gay and lesbian rights litigation (Monk, 1998, 2015; Tien, 1994). Children can certainly be the discursive anchor for heteronormative and gendernormative investments (Edelman, 2004; Foucault, 1980; Stockton, 2009) and act to reproduce these structures as well (Pascoe, 2007). But as we look at the long arc of gay and lesbian rights we also see that the political fights and moral panics over the ‘innocence’ of children nonetheless miss the remarkable youth-oriented gradient of support for marriage equality and sexual rights generally (Goldberg-Hiller, 2010), a political demographics that seems to assure many of the inevitability of a civil libertarian outcome to sexual struggles. If love is plastic, perhaps the resistance to normalization, and embrace by children, of sexuality, gender, and identity can be explored as creative sources of change.

Looking Forward

This much too brief review suggests that scholarship on sexuality will continue to reward this Journal’s goals to be a leading critical voice within sociolegal studies. The nonessentialist fluidity of gender and sexuality which framed early approaches to the study of the consequences of rights and the relationship of sexual and gender identity requires renewed attention to the structures of race, colonialism, and imperialism enabling and enabled by queer critique. The divergences in the expressions of equality within the universality of queer theory in contrast to the particular histories of race and indigeneity create the esthetic space for renewed development of critical legal theory.