For the last decade and more, the law reform agenda on behalf of sexual minorities in the United States has been dominated by the same-sex marriage campaign and, to a lesser extent, the repeal of Don’t Ask/Don’t Tell. Gay rights advocates for both equality-seeking efforts, while locked in battle with culture warriors from the right, also have been subject to protest and criticism from the left for their powerful normalizing impulses and identitarian rights-orientation. Gay rights advocates nonetheless have persevered in their quest for equality, scarcely acknowledging the criticism from queer and other non-mainstreaming or dissident voices, perhaps unable to imagine what their law reform agenda would look like if they took the criticism seriously. The opening paper for this symposium will attempt to help law reformers imagine just that, by proposing a critical approach to agenda-setting for the benefit of persons marginalized by some facet of their sexuality and/or gender. The method begins with rights critique, reviewing some of the debate among different strands of critically-inclined leftists (crits, race crits, fem crits) over the promise and perils, and utility and disutility, of rights argumentation, reconsidering these insights in the advent of gay and trans law reform movements, as well as queer theory, and extracting the most pertinent blend of critical tools from these traditions. It will then turn not to reconstruction, in the sense of elaborating a new theory of emancipation, but to distributive analysis, making manifest the stakes of possible reform strategies — revealing not only their possible emancipatory promise, but also their costs, even for those constituencies with which gay rights advocates are concerned. The method will conclude in a decisionist posture, driving toward commitment to concrete law reform tasks — not because they promise total equality or emancipation in some other mode or are cost-free — but because we are willing to accept their costs as the price of the benefits we hope they will bring, eyes wide open to the fact that we cannot be sure.
don't ask don't tell, sexuality, gender
Gay rights, Queer theory
Human Rights Law | Sexuality and the Law
Harvard Law School
Harvard Civil Rights-Civil Liberties Law Review (Amicus Online Supplement), Vol. 46, No. 1, 2011
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