Desiring What the Law Desires: A Semiotic View on the Normalization of Homosexual Sexuality

I. The Speakability of Homosexual Relationships

In the United States the landmark decision Lawrence and Garner v. State of Texas (2003) by the Supreme Court, which struck down the sodomy law in Texas, has been welcomed as a further step towards sexual equality. This momentous decision contributed to eroding prejudices against homosexual sexualities which are deeply rooted in ‘‘the politics of disgust’’ animating the still strong opposition to sexual minorities. ⁵ The Justices took issue with a former controversial decision by the Supreme Court, Bowers v. Hardwick (1986), which defended the constitutionality of a Georgia sodomy law criminalizing oral and anal sex in private between consenting adults. In the context of Bowers v. Hardwick, which contested the existence of any fundamental right to engage in homosexual conduct, Chief Justice Warren E. Burger extolled the immemorial roots of prohibitions against homosexual sex. Eventually, the Bowers majority agreed that, since the bulk of the population in Georgia believed homosexual sodomy to be immoral and unacceptable, the law had to respect such a moral convention.

In 2003 a highly conservative Supreme Court overturned this conclusion and removed legal provisions that painted lesbians and gay men as presumptive criminals. However, if we juxtapose the two decisions, we can easily notice a relevant change in focus from sexual conduct to relationships. Justice Kennedy’s majority opinion excoriated the Bowers Court because it framed the constitutional issue in terms of mere homosexual conduct. In one of the key passages of his opinion, Justice Kennedy states that restricting consideration to homosexuality as mere conduct would be as mistaken as considering marriage as the right to have sexual intercourse. Such an unexpected analogy indicates that the Justices were more concerned with the context within which acts are performed than with the acts themselves. In reality, as William Eskridge notes, what was really at stake in this decision was the issue of homosexual unions: not as homosexual but as unions. ⁶ Such a different frame bespeaks a far-reaching shift that, according to many queer critics, proves highly detrimental both to queer subjectivities and to non-homosexuals who are indirectly affected by its consequences.

Two articles by Katherine Franke and Teemu Ruskola tackle this issue so as to bring out the unstated spirit of this historic move. ⁷ These authors – whose theoretical enterprises could be described as orthogonal to one another’s – set forth two main critiques. The first critique underlines the deepening link between homosexuality and the privateness of domestic life enshrined in the couple matrix. The second critique points to the outcomes of this intersection by investigating the socio-political project that lies behind the regulation of homosexual intimacy – one that tries to set the boundaries between new normalized sexualities and those that fail to fit the renewed social classification. In substance, both Franke and Ruskola believe that a compromise (whether deliberate or not) is being reached between conservative political doctrines and mainstream homosexual movements on the accommodation of the LGB population’s claims. LGB individuals can be fully integrated into the body politic insofar as they yield to the social grammar of coupledom and, in doing so, recognize the unquestionable political pre-eminence of the public/private divide. In other words, homosexuals accept to be portrayed in the eyes of their fellow citizens as one of the oppressed minorities who seek, and deserve, full recognition as ‘‘good citizens’’ and, because of this, are unjustly prevented from accessing institutional pillars of Western states, such as marriage and family. ⁸

Without a doubt, this shift is connected to a major transformation in LGB movements’ mobilization strategies. Scholars have provided evidence that LGB movements before the 1980s are hardly comparable with today’s ones in terms of objectives, structure and strategies. ⁹ Recent critical analyses concur that Lawrence v. Texas and other such key junctures in gay liberation could be regarded as effects of the spiral movements of neoliberal rationality that is unleashing its surveillance strategies. ¹⁰ It is no coincidence that these societal developments have been accompanied and facilitated by well-organized campaigns launched by ‘‘queer subjects in the leading strata of the neoliberal world order,’’ ¹¹ who keep fuelling a ‘‘continuous episteme’’ ¹² founded upon an unholy union between the normalization of queer identities and the culture of loss of rights for those who turn out to be stigmatized as new unnormal subjectivities, whether sexual or not (such as people of color, migrants, terrorists, especially when these traits intersect). ¹³

Nonetheless, Ruskola and Franke do not aim to map the movements of neoliberal rationality. Rather, as it were, they seek out its vehicles. To achieve that, they provide a pitiless reading of Lawrence v. Texas in order to identify some of the key factors that are involved in the radical transformation of the U.S. political scenario. Ruskola puts forward the first critique I summarized above by showing how LGB individuals’ claims are making their way into mainstream views of sexuality as they become amenable to a sexual categorization modelled on the traditional heterosexist binary male/female, which allows homosexuals to be regarded as fit for the couple-form. ¹⁴ In short, the issue at stake is no longer sodomy, but intimacy. If this is so, then it is not homosexuality that gains recognition as a different way to conceive sex and construct kinship, but the traditional couple-form (as the stable and life-long union between two persons) that confers respectability on something which is not respectable in itself. Whereas ‘‘[b]eing in an intimate personal relationship should not be a requirement for having a constitutionally protected sex life,’’ ¹⁵ Lawrence v. Texas dignifies homosexual sexuality precisely by reframing it through the lexicon of straight sexuality, traditionally characterized by a commitment to monogamy, reciprocal loyalty, stability, and durability. As a result, although Justice Kennedy’s opinion seems to be inspired by the values of liberty and equality (on whose role I will return later on), his justificatory strategy hinges on a basic sameness between heterosexuals and homosexuals: ‘‘Persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do.’’ ¹⁶ And what do heterosexuals do? Justice Kennedy avers that they ‘‘may choose to enter upon […] relationship in the confines of their homes and their own private lives and still retain their dignity as free persons. When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring.’’ ¹⁷

The vocabulary of intimacy is completely unfolded: one’s sexuality deserves respect as long as it is practiced in the private sphere of one’s home. Justice Scalia’s plain, classic hyper-conservatism clarifies this point, as in his dissenting opinion he states: ‘‘I do not know what ‘acting in private’ means; surely consensual sodomy, like heterosexual intercourse, is rarely performed on stage. If all the Court means by ‘acting in private’ is ‘on private premises, with the doors closed and windows covered,’ it is entirely unsurprising that evidence of enforcement would be hard to come by.’’ ¹⁸ Ruskola correctly underlines how bothered Justice Scalia was by the fact that the majority opinion postulated a tacit and undue link between sodomy (the crime at stake) and the recognition of homosexual unions. In other words, Justice Scalia was particularly unhappy with the majority’s legitimating strategy because it was conducive to the extension of legitimate coupledom to homosexuals. Yet, Ruskola insists, this proves key to understanding Lawrence v. Texas as a whole. The respectability of homosexual intercourse is achieved only once LGB issues are couched in the light of heterosexual ones, that is, in terms of legitimate, private, intimate intercourse: ‘‘[R]eading the opinion, one would think that homosexuals exist only in relationships, and that relationships are the only context in which homosexuals might conceivably engage in sex acts.’’ ¹⁹

It is important to emphasize that such a negotiated and normalizing inclusion in a heterosexual and heterosexist grid is not a hallmark of U.S. sexual politics. As shown by empirical studies, the accommodation of LGB sexualities generally tends to take this path. ²⁰ To mention a recent and consequence-laden judgment, in Schalk and Kopf v. Austria (2010) – in which the European Court of Human Rights (ECtHR) recognized the discretionality of national laws in the regulation of same-sex unions – the argumentative strategy, mutatis mutandis, appears to be the same. Although the judges affirm that no immediate right to marry can be granted to same-sex couples, the judgment is entirely founded on the subsumption of same-sex couples under the label “family.” Contrary to Lawrence v. Texas, the ECtHR was not called upon to decriminalize sodomy and the complaint had exactly to do with the lack of legal recognition for same-sex unions. Nonetheless, the vindication of same-sex rights was rooted in the exaltation of a pillar of the heterosexual institutional framework, which earlier homosexual movements aimed to dismantle, that is, the family. ²¹ This reference to such a cornerstone of Western civilization allowed the judges to emphasize the link, blatantly manifest in Lawrence v. Texas, between legitimate intimacy and the privateness of individual relationships. In Schalk and Kopf v. Austria, the main concern was with a violation of the plaintiffs’ right to ‘‘respect for private and family life’’ and a ‘‘breach of their right to peaceful enjoyment of their possessions.’’ ²²

The crux of the matter is whether Art. 9 of the Charter of Fundamental Rights of the European Union, stating that ‘‘[t]he right to marry and to found a family shall be guaranteed in accordance with the national laws governing the exercise of these rights,’’ also offers protection to homosexual people. The Court surveys recent evolutions in the social perception of family and unions and concludes that it is ‘‘artificial to maintain the view that, in contrast to a different-sex couple, a same-sex couple cannot enjoy ‘family life’,’’ and, consequently, ‘‘a cohabiting same-sex couple living in a stable de facto partnership, falls within the notion of ‘family life,’ just as the relationship of a different-sex couple in the same situation would.’’ ²³ Therefore, although the Court finally decides that national legislatures enjoy an ample degree of autonomy in the regulation of this phenomenon, the judgment comes to a cutting-edge conclusion: the vocabulary of family can be legitimately used to account for homosexual unions.

It is no accident that the Court of Cassation in Italy, where the regulation of same-sex unions is still a utopia, immediately seized on the relevant innovation of the ECtHR’s decision. ²⁴ In a long and sophisticated judgment (4184/2012), the Court put forward a cogent argument. In a previous key ruling (138/2010), the Italian Constitutional Court had established that Art. 29 of the Italian Constitution, recognizing ‘‘the rights of the family as a natural society founded on marriage,’’ does not cover homosexual couples because of two main reasons. ²⁵ First, the sitting Judges argued, the Constitution was not enacted in a legal vacuum, but inevitably relied on, and referred to, pre-existing legal rules and definitions. Those pre-existing notions de facto excluded homosexual relationships from the realm of legitimate kinship and espoused the view that marriage is, and cannot be but, the union between two opposite-sex persons – what the Court defined as a ‘‘consolidated and ultra-millennial notion of marriage.’’ ²⁶ Secondly, the Court went on to say that, if this view holds, then the notion itself of homosexual relationship should not be described, from a legal vantage point, as null (that is, with no legal consequences), but as non-existent. This is the linchpin of the judgment as a whole. In fact, the Justices aimed to stress that same-sex relationships are nothing that judges, qua legal officials, can talk about, because there is no legal notion or rule that legally describes this social state of things. Same-sex relationships remain outside the legal field, confined to the broad set of social phenomena that are not addressed by legal rules. The Court adds that surely the Fathers of the Constitution were aware of the existence of this social phenomenon and yet were adamant that no legal tool was needed to allow the regulation of homosexual co-existence.

The Italian Constitutional Court’s reliance on the idea of non-existence is of theoretical salience insofar as it proves an instance of what Judith Butler refers to as ‘‘unspeakability,’’ which she rightly connects to the activities of the state and its power to create the legal language. ²⁷ Something can be talked about in the legal field by legal officials only as long as there is something else (say, a norm or a definition) that gives it legal intelligibility and legal speakability. There is little doubt that the Court was at pains to defend such a crucial power in the hands of the state. Arguing that something is not speakable (because it does not exist) helps protect something else (in this case, the consolidated and ultra-millennial notion of marriage) in such a way that no emerging social phenomena or disruptive attempts to re-inscribe social meanings can subvert it. ²⁸ In other words, the Court’s main goal was to subtract the legal institution of marriage from the flexibility of social life where institutions are malleable and sensitive to the unruly changes of social meanings. ²⁹

But in 2012 the Italian Court of Cassation declared this preemptive strategy to be obsolete precisely because the ECtHR’s judgment had de facto conferred speakability on LGB unions and thus had eventually brought them into the legal field. The hermeneutic enterprise of the ECtHR was instrumental in teasing out the legal relevance of the social phenomenon that the Italian Constitutional Court intended to bar from the legal field. Therefore, much as the Court of Cassation could not help but refuse to recognize the legal effects and validity of the same-sex marriage celebrated outside Italy (which was the subject of controversy), the Justices debunked the core tenet of the decision delivered by the Constitutional Court in 2010. The fact that legal partnerships or marriages celebrated in another European country cannot be considered valid under the Italian law does not depend ‘‘on their ‘inexistence’ […] but on their inaptness to produce, precisely as matrimonial acts, whatever legal effect within the Italian order.’’ ³⁰

But what was it, according to the Court of Cassation, that attributed legal existence and speakability to same-sex unions? Pace the Constitutional Court, these unions are to be recognized as a legally relevant social phenomenon because the ECtHR demonstrated that nothing prevent these unions from being described as families under the scope of Art. 9 of the Charter of Fundamental Rights of the European Union. This entails, however, that same-sex unions are not found relevant as human interactions deserving legal protection, but as unions apt to form couples who can righteously claim access to the institution of marriage. Based on that, the Court of Cassation concluded that this extension of the notion of family to same-sex couples confers on the ‘‘single components of this couple […] the right to marry and the right to found a family.’’ ³¹ To put it otherwise, it is the fact that they are apt to form a family that makes them deserve legal recognition. Again, what is at stake here is not the right of subjects to form whatever union they like, but the “aptness” of some unions to be categorized as families.

II. Identifying Factors: Normalization as a Legal Effect

In her analysis of Lawrence v. Texas, Franke concentrates on Justice Kennedy’s insistence on the basic liberty that he claims protects people from unwarranted government intrusions into one’s private affairs. Franke deftly remarks that in the Justice’s discourse, ‘‘liberty’’ intends to signify a fragment of a broader ‘‘freedom’’ and is connected to one’s atomistic autonomy to define one’s own concept of existence, meaning, and the universe. Justice Kennedy’s stress on liberty, Franke argues, is a further way to reinvigorate the link between homosexuality and the private dimension vis-à-vis the public one. In sum, on this account, Justice Kennedy seems to frame the issue in such a way that the focus on the decision may be one’s liberty to have sexual intercourse in one’s home and may leave ‘‘a wide range of homosexual and heterosexual behaviors and ‘lifestyles’ subject to criminalization.’’ ³² The genuine nature of this strategy comes to the surface at the moment in which the majority opinion states that the U.S. Constitution grants individuals the right to build relationships within a circumscribed domain that the law has to protect: ‘‘When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice.’’ ³³

On the basis of this passionate conclusion, it is my claim that the reference to this type of liberty is not meant to get rid of a broader notion of freedom, which neoliberalism presents as outdated. In fact, it cannot be denied that this type of liberty reinstates a concept of right that celebrates the atomistic character of right-bearers and confines them to the private domain. Nevertheless, its main objective seems to be the establishment of a ‘‘regime of normalcy,’’ as Ruskola puts it, ³⁴ that deeply characterizes individual rights. This conjures up what Wendy Brown refers to as a ‘‘paradox.’’ ³⁵ She nicely captures how ‘‘rights that entail some specification of our suffering, injury, or inequality lock us into the identity defined by our subordination, while rights that eschew this specificity not only sustain the invisibility of our subordination, but potentially even enhance it.’’ ³⁶ The case in question pushes this paradox to its acme. As a right tailored to LGB people, the right to engage in sodomy (in the private realm) reifies and crystallizes homosexual identity, so much so that acts of sodomy appear as objective properties of homosexual subjectivities. ³⁷ On the other hand, however, as instruments that claim to cast light on a liberty that naturally pertains to citizens, these rights fail to redress the condition of abjection in which homosexuality continues to be detained as a (potentially) alternative vision of sexual life. Paradoxically homosexuals’ route to equality is paved by self-surrender to a model that has long contributed to their subjugation, while, simultaneously, the very acceptance of an objectifying and reified image of homosexuality shoves gays and lesbians into the normalizing path of marriage.

Franke’s account of this paradoxical condition sees homosexuals as forced to strategically present, and to genuinely think of, themselves as ‘‘same-sex couples, not persons who seek nonnormative kinship formations or individuals who engage in nonnormative sex.’’ ³⁸ Yet, she cuts to the heart of the matter when she maintains that this move can hardly be regarded as a merely strategic renegotiation. It is by no means aimed at extending protections to vulnerable subjects and at challenging the meanings in which these are rooted. In reality, what lies behind such a historic compromise between heterosexual and LGB views of sexuality is the reworking of the queer imagery, whereby sexuality, like in mainstream culture, gets to be considered as already-and-always synonymous with life-long, intimate, monogamous unions. ³⁹ All the rest takes the shape of a transitory, invaluable happening.

Two aspects of this issue are worth addressing: the heteronormative and the homonormative sides. The major heteronormative effect is the disposal of non-normalizable identities, discussed in Michael Warner’s critique of queer normalization. Warner’s analysis centers on how the legitimizing inclusion of some homosexuals within the broader fabric of mainstream civil society ends up sanctifying ‘‘some couples at the expenses of others.’’ ⁴⁰ Law’s ‘‘selective legitimacy’’ proves instrumental in disciplining the life of those who are cut out by the legal category of same-sex marriage, such as adulterers, divorcees, singles, unwed parents, polyamorous, polygamous, and so on. Heteronormativity therefore turns into a device of stigmatization designed to produce new sorts of excluded identities and to classify them as enemies of the good society. This process, at the same time, causes homonormative effects, whereby LGB individuals who fall prey of the heterosexual matrix undergo a metamorphosis that makes their life very akin to that of heterosexuals. Lisa Duggan’s enquiry into conservative queers’ collusions with neoliberal politics denounces the series of rapid social and political changes that she regards both as regressions and as the triumph of a shallow notion of equality. ⁴¹ If general attitudes toward homosexuality are much more positive, while representations of ‘‘good’’ homosexuals proliferate everywhere, businesses and advocacy groups seek to capitalize on these societal developments by favoring a new LGB consumerism. The combination of these processes is conducive to the commodification of queer sexualities, which surreptitiously fosters the domination of individual autonomy through (apparent) free choice.

However, Franke’s contribution goes a step further when she tries to identify the vehicle and channels of such a ‘‘domestinormative’’ ⁴² trajectory, that closets homosexuals to their homes and censures those who are dissatisfied with traditional ideas of sex and kinship. She gives away her surprise at ‘‘the yearning for official recognition’’ that causes the ‘‘present stampede toward marriage in the gay community.’’ ⁴³ Then Franke hints at the special way in which the law imposes order on social facts. She contends that the law does not simply order and categorize facts. Law possesses the extraordinary power to bring into being the facts that it aims to order and categorize. Janet Halley goes down the same path when she alludes to law’s capacity to ‘‘constitute persons by providing a forum for their conflicts over who they shall be understood to be.’’ ⁴⁴ Then she remarks how crucial to this process of fabrication the way in which questions are framed is. Halley points to the key role of ‘‘judicial self-fashioning’’ to show that the creativity of judicial decisions lies much more in the questions that judges take as the basis for their deliberations than in the deliberations themselves. ⁴⁵

I believe this view of law’s powers to be key to identifying the vehicle and channels of both hetero- and homonormativity. Rather than relying on the tantalizing ‘‘sociodicy’’ that attributes every social and political distortion to an omnipotent neoliberalism (though I do not deny its relevance), it is important to understand why homosexuality’s entrance into the legal field through marriage has ambiguous and potentially harmful effects. In short, the case I want to make is that the process of resignification of the institution of marriage and the broader understanding of kinship taking place within the legal field is inevitably bounded and can even prove instrumental in making marriage and kinship stronger than they used to be in the past. To achieve this aim, I need to briefly explore law’s nature and explain what effects legal categories exert within the bounded resignification law allows.

III. The Semiotic Circuit: The Language and Categories of Law

The old-fashioned idea of law as a set of rules backed up by threat for non-compliance has been disproved by the emergence of a plethora of legal or law-like regimes (both sub-state and supra-state) which neither possess the monopoly on coercion nor exert authority along traditional, vertical lines. ⁴⁶ Further, a more penetrating investigation on the way law operates on social reality shows how legal categories are both performative and self-referential. ⁴⁷ On the basis of such a sociologically more refined view of law’s nature, the salience of legal recognition comes to the surface. Even more significantly, it becomes much clearer why – as clarified by Marc Galanter’s seminal analysis of indigenous laws ⁴⁸ – non-legal social normative entities (from small-scale personal relationships to large-scale sub-state organizations) try in advance to adapt themselves to what state law requires. But a more detailed picture will be of help.

Two intertwined notions that I believe to be key to law’s nature are self-sufficiency and productive circularity.

Law’s being based on its own foundational myths, knowledge, categories, and language makes sure it does not rely (or at least it can claim it does not rely) on anything which is outside the legal field. Which is to say, law claims it suffices to itself.

A central contribution to the understanding of law’s self-sufficiency is Pierre Bourdieu’s only text entirely devoted to the legal phenomenon, that is, ‘‘The Force of Law.’’ ⁴⁹ He argues that the insulation of the legal field, which is central to law’s being a special ordering, is rooted in the (claimed) autonomy of its body of knowledge, its rules, and its procedures. On his account, law is a bounded space where an ongoing confrontation takes place among a restricted range of agents, or rather, those who possess “technical competence.” This special competence is defined as the ‘‘socially recognized capacity to interpret a corpus of texts sanctifying a correct or legitimized vision of the social world.’’ ⁵⁰ The core of law, therefore, is neither rule-making nor adjudication. Those that traditional jurisprudence has regarded as the two pillars of all legal systems – rules and processes – according to Bourdieu are always conditional upon a stock of knowledge (mastered by a handful of people) and the restrictions on access to it. This is what Bourdieu labels ‘‘effect of closure.’’ ⁵¹

It would be mistaken, though, to interpret the effect of closure as a mere strategy for excluding laypeople to the advantage of experts. In reality, the insulation of this special knowledge is mainly meant to provide the foundations for law’s claim to self-sufficiency, which performs a strategic role in the resolution of conflicts. In fact, it is the very claim to be grounded on this knowledge that allows the law to solve disputes. This is why Bourdieu looks at the two aspects of symbolic domination and dispute-settling as correlated phenomena. On the one hand, he lays great emphasis on professionals’ ability to create and fuel the need for their own services. In particular, what he regards as key to this process of self-affirmation is the ability to transform problems of daily life, expressed with the tools of ordinary language, into legal problems, verbalized with recourse to the restricted code of the law. ⁵² On the other hand, he contends that the control on access to the legal field allows determining what can and what cannot be framed in legal terms, that is to say, which conflicts can be settled by the law. But why is the border between the social and the legal realms so important? In brief, the unbridgeable gap between professionals and clients is instrumental in the construction of the specifically legal argument.

Much as Bourdieu is not entirely clear on this latter point, he seems to imply that the very entry into the legal field, and thus the construction of the legal argument, does not simply permit settling the conflict, but settles it. For it is the transition from the realm of social life to the legal field that performatively solves the dispute, in that it prompts the process of conversion whereby a social issue is semiotically rendered into a legal one. This hardly implies that, in the actual course of the judicial proceeding, there is no real confrontation between the parties. Yet, the possibility condition for this confrontation to occur is the previous translation of the issue into the legal language, so that the dispute revolves around the proper construction of the case in keeping with legal categories. ⁵³ In summary, the existence of a safeguarded border between the social and the legal domains allows filtering the set of issues that can be legally reframed and thus legally solved; such a firm and impermeable filter confers on law’s language and categories the special power to produce binding consequences when they are used for redescribing social facts. ⁵⁴ The solution to the conflict lies in this very redescription: categories allow describing facts in a certain manner, while in turn facts, described in a certain manner, allow overcoming potential conflicts between categories. ⁵⁵ Such a circularity – that differentiates law from all other normative practices – is made possible by, and simultaneously reinforces, the separateness of legal knowledge, the formulaic rigidity of its language, the firmness of its categories. All these characteristics bind the parties to comply with a restricted and fixed set of categories that prompt them to provide entirely new accounts of events.

At the same time, this complex process of conversion, imposed by the effect of closure, has a significant impact on what is “dragged” into the legal field. What happens is that the process of semiotic conversion performatively affects the nature of the facts and events legally reconstructed. To make this point, Bourdieu concentrates on the force of “naming.” This is the process whereby those who possess technical competence, and are thus authorized to handle legal categories, make decisions (performative utterances) which provide binding definitions of things. In this way, Bourdieu comments, they ‘‘succeed in creating a situation in which no one can refuse or ignore the point of view, the vision, which they impose.’’ ⁵⁶ Officials and professionals are engaged in a complex activity of ‘‘worldmaking,’’ ⁵⁷ which is conducive to a specific organization of the social realm and its units.

How does this process succeed? On this point Bourdieu’s analysis appears less accurate. A sounder answer, in my view, should bring out more vividly than he does the relationship between the categories used to denote things and the things denoted. It is not for this article to offer a comprehensive account, ⁵⁸ but I cannot leave the question completely unanswered. In the sheltered microcosm of the legal dispute, the replacement of the language and categories of everyday life with the language and categories of law is vital for the conflicting parties to transcend both their personal view of things and to locate themselves into a ‘‘semiotic circuit.’’ Here the dispute is entirely reframed and transformed inasmuch as meanings and words of everyday life are supplanted by legal ones, which can only be used in the legal domain. ⁵⁹ In this way, as I explained above, the conflict between ‘‘directly concerned parties’’ is transformed into a ‘‘juridically regulated debate between professionals acting by proxy.’’ ⁶⁰ This debate gives rise to a productive, circular interplay between the insulated legal knowledge and the experience of the parties, so that the facts narrated with recourse to legal norms, definitions, prescriptions, and provisions, are completely reframed in the legal jargon. Once this process is accomplished, the parties will look at reality (the set of facts and events they brought into the legal field) in an entirely new manner (these very facts and events redescribed in legal terms). The joint activity of semiotic deconstruction and reconstruction of the parties’ own conflicting views assign facts a new shape and make them exert different effects on the social context where they had emerged. Even more importantly, this process radiates its consequences on society at large and ends up involving many other subjects outside the dispute. ⁶¹ This effect of radiation, which can be regarded as a counterpoint to the effect of closure, is triggered by the employment of law’s special categories by those who situate themselves (although transitorily) in the legal field.

This makes sense of why the effect of closure is by no means a pure instrument of exclusion. For, only in virtue of a strict control over the access to the legal field can legal rules successfully claim to override the rules of other social practices. In other words, law’s claim to normative preeminence is legitimized with a circular recourse to its own claimed self-sufficiency. But this implies that those transitory players accept that the stock of legal knowledge and categories replace their lay knowledge and categories. Such a tacit acceptance is key to law’s performing its tasks, because, as Bourdieu stresses, access to the legal field ‘‘requires that, within the field, conflicts can only be resolved juridically – that is, according to the rules and conventions of the field itself. For this reason, such entry completely redefines ordinary experience and the whole situation at stake in any litigation.’’ ⁶² In the end, people’s acceptance is what ignites the special, productive circularity between legal categories and facts within the legal field.

Bourdieu offers a convincing characterization of the way legal norms are the outcome, more than the causing factor, of this effect of radiation. In short, he illustrates how legal norms capture and formalize preexisting social practices and, by doing so, make ‘‘the practical principles of the symbolically dominant style of living official’’ and ‘‘inform the behavior of all social actors, beyond any differences in status and lifestyle.’’ ⁶³ Bourdieu understands this activity as a ‘‘normalization effect’’ giving way to an ‘‘ontological glorification’’ of social regularities. The rule is therefore a factual normality rendered into a legal normality. Doubtless, this claim would require a deeper analysis than Bourdieu’s succinct remarks, one that cannot be deployed in this context. ⁶⁴ However, for my purposes, it is sufficient to understand the process through which normalization takes place as far as the issue of sexuality is concerned.

If we return to recognition of LGB sexualities and the relationships between same-sex people, we can understand how law’s performative transformation is central to the process of normalization: it affects all the “excerpts” of everyday life that people drag into the legal field and that therein get completely reframed. In this way, law works at the same time as a garage-repair device and as a creative feeder. ⁶⁵ But these two elements, as my insistence on the circular interplay intends to stress, are intrinsically connected: conflicts can be settled only insofar as the law lends lay people its resources in terms of knowledge and categories, whose use effects a change on the dispute in order to settle it. If this is so, then the main contribution of litigations and judicial decisions is not the mere settlement of an individual controversy. Rather they provide ‘‘a background of norms and procedures against which negotiations and regulation in both private and governmental setting take place.’’ ⁶⁶ This means that, well beyond the scope of the single dispute, law contributes to the creation of a set of standards that people proactively adopt outside the legal domain. Much as they prove truly effective only within the legal field, legal language and categories do operate outside of its boundaries. For people are naturally inclined to model their own language and categories on the former, since they will be likely to rely on them in case they need to settle a controversy with recourse to law. This evidences how the garage-repair work exerts creative effects that spill over into the broader society and thereby contribute, e converso, to ‘‘the imposition of a representation of normalcy according to which different practices tend to appear deviant, anomalous, indeed abnormal, and pathological.’’ ⁶⁷

On this account, two contradictory points should be stressed.

On the one hand, it is true that legal disputes, as I underlined in the preceding sections, confer speakability on previously unspeakable subjects and conditions. Further, they leave room for the renegotiation of meanings. As some scholars emphasize, ⁶⁸ the very act of framing the issue of same-sex marriage in legal terms has contributed to revealing the historic and socially constructed nature of the link among gender difference, sexual orientation, and biological reproducibility. Many countries today recognize that the sex/gender binary can no longer be regarded as compulsory either to the understanding or to the regulation of personal unions. In the wake of this forced revision, the legal system of many Western states has been called upon to rework its own language and categories. The simple fact that many Western legal systems had to bring in a brand new category (like “same-sex marriage”) which in turn has forced traditional marriage to take on a new label (like “opposite-sex marriage”) ‘‘demonstrates, at the very least, the questioning of heterosexuality as synonymous with marriage.’’ ⁶⁹

On the other hand, however, the negative externalities of this major progression appear to be several. In fact, in order to cross the legal boundary and to enter the legal field, which homosexuals have struggled so hard to do, it was necessary for them to adopt a scarcely neutral language and set of categories. As both the U.S. Supreme Court in 1986 and the Italian Constitutional Court in 2010 noted, such language and set of categories were not produced in a social and legal vacuum, but were nurtured by the same ethical substance which formed integral part of the institutional structure that had long oppressed LGB individuals. If this is true, it is my contention that the root causes of both hetero- and homonormativity are not to be sought in something external to them, but in the way the very issue of LGB sexuality has been framed once it entered the legal field. After homosexuals accepted to engage in the bounded negotiation that the law allowed and to perform a resignification from within, they turned out to be entrapped in the semiotic circuit whose effects of performative fabrication, from within the legal field, radiated on what is outside of it. A new homosexual was progressively constructed by the law, one who is fully legitimated to claim access to what the law used to reserve for heterosexuals.

At the root of normalization we find the performative force of a semiotic activity which is key to the very existence of social order. An activity that cannot afford its language and categories to be subverted by the language and categories of social life (as the 2010 Italian Constitutional Court explains so compellingly) unless it wants to lose its restorative effects. As Bourdieu’s pithy and effective analysis of law’s activity highlights, people’s acceptance of the rule of the legal game is a mandatory requirement whose symbolic force extends well beyond the limited space of disputes. The reframing of the conflict in legal terms is able to redefine ordinary experience with a centripetal force that shapes people’s perception and desires.

IV. Conclusion

In the preceding pages my main point was that normalization is an intrinsic by-product of the process whereby the issue of homosexual sexualities is being reformulated within the bounded frame of the legal discourse. Needless to say, my thesis does not imply that all legal provisions governing sexual behavior and relationships are ipso facto fated to produce normalizing effects. Rather, my claim is that the only way to partially immobilize the semiotic circuit I described above is the mobilization of difference: the introduction of element of pluralism in family law could help construct alternatives to the state’s monopoly on the production of legal rules, with a view to opening the door to new models for governing interpersonal relationships. ⁷⁰

A plurality of normative repertoires, meant to regulate people’s interactions in accordance with their needs and interests, could be instrumental in the creation of ‘‘new forms of constructed families without fear that this searching will potentially forfeit for us our right to be honored and valued within our communities and in the wider world.’’ ⁷¹ Such a new approach to the issue of legal regulation of homosexual unions would make room for models other than marriage, which could guarantee a similar bundle of benefits, rights, and responsibilities. This could contribute to defying the symbolic hegemony of marriage as the (alleged) foundational pillar of social order. The institution of marriage would cease to be the “that-with-respect-to-which” in the governance of relationships and the constant benchmark for social change.

To be sure, the construction of these alternatives would not exclude that LGB individuals may nurture desires that involve duties to their partners or the value of monogamy and the promise of lifelong loyalty. By no means are these duties and values exclusive property of a heterosexual culture. However, they should not be what gives homosexuals speakability and social intelligibility. In other words, if LGB individuals become socio-politically legible and legally protectable only insofar as they are expected to desire the same things heterosexual individuals desire, as I argued throughout this article, such an expectation performatively comes to impinge upon the LGB horizon of desire. On the contrary, if some same-sex relationships’ needs and interests entail, among other things, monogamy and loyalty, and yet LGB individuals are socio-politically legible and legally protectable as a specific population with specific sets of needs and interests, they themselves could and should be involved in developing legal provisions that regulate all these elements and others. In this latter case, monogamy, fidelity, coupledom, family would not be an inadvertently self-imposed fate, but elements of a broader picture where difference would play a decisive role.