Libby Adler offers a comprehensive critique of the mainstream LGBT legal agenda in the United States, showing how LGBT equal rights discourse drives legal advocates toward a narrow array of reform objectives that do little to help the lives of the most marginalized members of the LGBT community.
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About the Author
Libby Adler is Professor of Law and Women's, Gender, and Sexuality Studies at Northeastern University and coeditor of the fourth edition of Mary Joe Frug's Women and the Law.
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THE INDETERMINACY TRAP
The Unexceptional Case
In 1993, a decade before Massachusetts became the first jurisdiction in the United States to treat same-sex marriage as a constitutional right, Christine Huff, a faculty member at the Chapel Hill–Chauncy Hall boarding school in Waltham, sued her employer under state law for discrimination based on sexual orientation. After Huff's successful year as a teacher, coach, and "dorm parent," the headmaster of the school expressed his wish to renew her contract. Huff had been living on campus, and the renewal of her contract would have meant the continuation of that arrangement. In the course of her contract renewal discussions, Huff asked her headmaster whether she could be permitted to live in a dorm with her same-sex life partner. According to Chapel Hill–Chauncy Hall policy, married teachers were permitted to live in dormitories with their spouses, but unmarried teachers who lived on campus were required to live alone. The headmaster refused Huff's request, thereby placing her in a cruel dilemma: scale back on her employment responsibilities or continue to live separately from her partner. Huff left her position and filed a lawsuit.
Under Massachusetts law, employment discrimination claims begin in front of an administrative agency called the Massachusetts Commission Against Discrimination (MCAD). The governor of the commonwealth at the time was William F. Weld, a socially liberal, fiscally conservative Republican who had received support from a gay organization known as the Log Cabin Republicans. Unsurprisingly, Log Cabin members could be found throughout state government in important positions during the Weld administration. One such person was Michael T. Duffy, whom Governor Weld appointed to the chairmanship of MCAD. As an out gay official at the helm of a state agency, and one who would later campaign for statewide office seeking the support of the gay community, Duffy found himself in a tight spot when Huff's case landed on his desk.
The Massachusetts statute that protects against discrimination on the basis of sexual orientation had been in place for just a few years at the time. Under the law, an aggrieved person could make out a claim even if the discrimination was not intentional or explicit but was the result of disparate impact, or discrimination that results from a neutral policy that has the effect of disproportionately disadvantaging members of a protected class. That was Huff's principal claim: that gays and lesbians as a group were harmed by the school's attaching on-campus living to certain employment opportunities while permitting only married couples to reside on campus at a time that only heterosexual couples could marry. The availability of a disparate impact claim combined with explicit statutory protection against discrimination in employment might have led Huff to a victory.
Duffy felt constrained, however, by language that the Massachusetts legislature had included in the law: "Nothing in this act shall be construed so as to legitimize or validate a 'homosexual marriage,' so called." According to Duffy's reading, this language served as an express prohibition against a claim such as Huff's. If MCAD were to apply the antidiscrimination statute to require Chapel Hill–Chauncy Hall to treat Huff's partnership the same way it treated a marriage, it would risk offending the legislature's intent. In an era in which even the most progressive localities were just beginning to trot out limited laws recognizing domestic partnerships, that was just what somebody anxious about gay people, gay rights, and the advent of gay marriage would expect a gay political appointee to do. Duffy decided that Huff's claim amounted to a request that her relationship be "legitimize[d] or validate[d]" as a marriage and that the statute forbade such an outcome.
Huff also made a disparate treatment claim, which, according to Duffy, entailed a contention that the school discriminated against her based on her sexual orientation and that this was intentional. This claim was weaker, in part because the headmaster had known Huff to be a lesbian when he hired her, gave her excellent performance reviews, and indicated his intention to renew her contract. Moreover, to succeed on a disparate treatment claim, Duffy explained, a plaintiff had to show that "similarly situated co-workers not in the protected class" received more favorable treatment.
But who were these similarly situated co-workers? Were they the married coworkers — similar to Huff because they, too, were in committed partnerships? If so, Huff should have been permitted to reside with her partner just as the married employees were. Duffy, without explanation, went the other way. He characterized "unmarried heterosexuals who wanted to live with a partner" as the similarly situated group. Plainly, a teacher in a heterosexual, nonmarital relationship would not have been permitted to cohabit with a partner on campus. Duffy believed that comparison compelled him to rule in favor of the school on the disparate treatment claim, as well.
Huff's case against Chapel Hill–Chauncy Hall raises a number of questions that surface and resurface in LGBT equal rights advocacy. First, what did it mean to prohibit discrimination against Huff in employment based on her sexual orientation? A widely accepted theory of justice credited to Aristotle holds that "like cases" ought to be treated alike. Was Huff's same-sex committed life partnership, under a legal regime that did not permit her to marry, "like" a marital partnership or "like" an unmarried heterosexual one? Put slightly differently, to avoid discriminating, should the school have treated Huff's nonmarital same-sex relationship the same way it treated nonmarital heterosexual relationships, or should it have accommodated the different circumstances of committed lesbian and gay partnerships — that is, the unavailability of marriage?
Further, what would it mean for Duffy to "legitimize or validate a homosexual marriage"— something the legislature said he could not do? Duffy had to choose between construing that language broadly (so that requiring the school to accommodate Huff would contravene the law) or narrowly (so that only an actual attempt to confer the status of marriage on a same-sex couple would contravene the law). Both readings are defensible within prevailing norms of equality argumentation, and different decision makers operating under different political conditions might reach different conclusions.
Next, if Huff had appealed the MCAD ruling and taken Chapel Hill–Chauncy Hall to court, could the school not have argued that it, too, had rights? Perhaps the law protects the school's freedom to operate according to its own values and speak in its own voice about such moral issues as nonmarital cohabitation, especially in close proximity to the impressionable students who are its charges. Might competing rights of association or expression be implicated?
Finally, one can detect in Duffy's written decision some angst. It might have been the politics, which had to have created something of a predicament for him, but maybe it was the genuine anguish of one who is entrusted with the responsibility for neutral decision-making and who feels he must assure others (and perhaps himself) that he will not be swayed by tribal loyalties. Duffy wrote, "I am not unaware of, nor unsympathetic to, the difficulties and hardships that the law imposes upon gay men and lesbians and their partners. [Read, I am gay!] Nonetheless, these inequities, as in the instant case, currently have no remedy under law. ... This Commission may not accomplish by "quasi-judicial" fiat that which the Legislature has expressly chosen not to countenance and, indeed, has forbidden by statute. It is clear that such an end may be accomplished only by appeal to the [Legislature]." Duffy laments the limits on his own power. He would like to help Huff; he appreciates the injustice being done to her, but he claims to be bound by the text of the statute and his own institutional role — a "quasi-judicial" one. Whatever injustice might result is being done not by him but by the legislature. Still, might a different reading of the statute have unbound him?
The issues that the Huff case raises and the tools that Duffy used to navigate them and to justify his decisions are features of an analytical problem known in legal theory as the indeterminacy of law. Huff's right against discrimination under the Massachusetts statute is not sufficient to determine the outcome of her case, even when combined with a process of deductive reasoning. Intermediate choices arise in the course of the decision maker's analysis — for example, how to construe the terms of the governing statute and what kind of heterosexual couple Huff and her partner were more "like." To answer those questions, Duffy had to make decisions that were enabled but not required by the legal materials or by logic.
This is not to suggest that his choices were random or based entirely on idiosyncratic opinion. It is to suggest merely that he did in fact make unacknowledged choices. Those choices may have been shaped by political, moral, or aesthetic influences or by the operating assumptions of his bureaucratic agency. That is inevitable and not to be condemned, but those influences were not openly explained. Duffy read from governing legal materials and used deductive reasoning, to be sure, but he did not state forthrightly what his interpretive choices were or why he made them. He declined to acknowledge the limits of what deductive logic could do for him and to what values he turned to complete the journey to his conclusion. The criticism in the indeterminacy critique is of the failure of decision makers to elaborate their decisions fully and honestly; it is of the pretense to chaste deductive reasoning from a cold and static legal starting point and the occluding of unmentioned values and conditions that inevitably help to shape decisions.
But indeterminacy refers to more than the idea that legal materials combined with a deductive reasoning process are not always sufficient to determine a conclusion — although that is part of it, to be sure. The indeterminacy of law is bound up with a deep, dogged, and institutionalized need to preserve a safe distance between objective, neutral correctness and subjective, political desire. The maintenance of that space requires engagement in discursive practices meant to justify case outcomes by reference to a process of neutral deduction.
Those practices pervade American law, and quite understandably, LGBT legal advocates — like advocates in other fields — have used the tools that American law makes available to them to pursue their goals. But our advocates have often operated uncritically within conventional justificatory discourse, formulating their desired legal objectives as "required" by law and reason. This has had untold costs. By their uncritical participation in conventional American legal discursive practices, LGBT legal advocates have been complicit (along with judges and legal advocates of all stripes) in the denial of reason's limits; they have lent their endorsement and prestige to the elision of choice available to legal decision makers; and — even as they strive toward progressive change — they have contributed to the sense that existing social arrangements are as law and reason require them to be. Even as they change the world in some respects, they also promote apparent limits on legal possibility.
This chapter begins exploring the costs of LGBT equal rights discourse — costs that occur in registers other than litigation victory and defeat. Huff lost her case, and one could attribute her defeat to the vagaries of indeterminacy, but this chapter does not argue that we should expect LGBT litigants to lose all — or even most — of the time. To the contrary, Obergefell v.Hodges, in which the U.S. Supreme Court found a constitutional right for same-sex couples to marry, makes evident that gay equality is on a winning streak. The argument here, however, is that winning and losing within the terms of LGBT equal rights discourse have more in common than you might think.
Duffy's plea of "It's not me; it's the legislature" is what legal thinkers call an institutional competence rationale. Judicial (or quasi-judicial) decision makers routinely decline to vindicate rights claims and then attribute their decisions to their adherence to the limits on their own power and respect for the proper role of their institution in the larger system of government. Institutional competence rationales tie the outcome of a specific case to preservation of the integrity of the system. It is important to observe, however, that when a judicial (or quasi-judicial) body refuses to vindicate a rights claim for reasons of institutional competence, gallantly deferring to the legislature, it typically does so while taking full advantage of its power to construe the texts that are relevant to whether the claimant will prevail. Duffy's institutional limit is self-imposed; it rests on his interpretive decisions to frame Huff's committed partnership as "similarly situated" to nonmarital heterosexual relationships and to accord the prohibition against "legitimiz[ing] or validat[ing] a 'homosexual marriage'" its broadest possible meaning. Those interpretive moves must accompany his humility in relation to the legislative prerogative. If Duffy had construed the relevant terms in Huff's favor, then it would have fallen entirely within his institutional mandate to award her a legal remedy; he had to construe them against her to throw up his hands, powerless to help. Indeed, Duffy might have felt just a bit more compulsion toward institutional competence apologia precisely because he was sympathetic to Huff's claim.
Not all equal rights claims are made in a judicial (or quasi-judicial) forum. An equal rights-seeking constituency might go to Congress and push for a voting rights act or to a state legislature for protection against discrimination in housing. When a legislature acts, it is also bound by institutional limits. In the federal system, for example, Congress may not reverse by statute the Supreme Court's interpretation of a constitutional provision. All three branches have purviews and boundaries around those purviews, although those boundaries are constantly contested. Concerns about the limits on the institutional competence of federal courts are unremarkable in this respect, but read enough constitutional law, especially equal protection and due process decisions, and you cannot help but be impressed that the boundaries around the power of the Third Branch are uniquely fraught. This becomes evident quickly to any practiced reader, who will become familiar with a pool of tropes habitually embedded in arguments justifying or, alternatively, attacking decisions to strike down an act of the majority's will in favor of an individual right. When an equal rights-seeking claimant comes before a counter-majoritarian body — that is, a body that is not accountable to the electorate but is nonetheless empowered to negate legislative or executive pronouncements — it activates a specific discourse of institutional competence designed to affirm the legitimacy of unelected officials' making important decisions in a democracy.
When Bowers v. Hardwick came before the U.S. Supreme Court in 1986,9 gay rights advocates asked the Court to strike down Georgia's sodomy prohibition on "right to privacy" grounds. Michael Hardwick was arrested in his own bedroom for engaging in oral sex with another man. The American Civil Liberties Union (ACLU) had been waiting for the chance to challenge a state's sodomy prohibition in a case involving consenting adults who had violated the law in a private setting. The arrest occurred because an unusually determined antigay police officer went to Hardwick's home to deliver a warrant for nonpayment of a fine for an open-container violation (in error — the fine had been paid), and a houseguest (foolishly) invited the officer in. Snooping around the apartment, the officer spied Hardwick and his partner engaged in the forbidden act. Hardwick's arrest provided the ACLU the opportunity it had been waiting for to bring a state sodomy law before the Supreme Court.
At the ostensible outset of his analysis, Justice White wrote for the majority that the case did "not require a judgment on whether laws against sodomy ... are wise or desirable." The decision, White was assuring readers, would not be based on his policy preference or personal opinion. He was perfectly cognizant of "the limits of the Court's role in carrying out its constitutional mandate," characterizing the question before him as strictly "whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy."
Excerpted from "Gay Priori"
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Table of Contents
Acknowledgments ix Introduction 1 Part I. LGBT Equal Rights Discourse 1. The Indeterminacy Trap 19 2. The LGBT Rights-Bearing Subject 60 3. Reformist Desire 100 Part II. A Step Off the Well-Lit Path 4. Bringing Legal Realism to Political Economy 145 5. Making the Distributive Turn 175 Conclusion 212 Notes 217 Bibliography 247 Index 259
What People are Saying About This
"Gay Priori is a signal achievement and perhaps the first book to give real legal-theoretical, lawyering, and critical legal studies substance to the debates in the humanities it addresses. Brilliantly executed and tightly argued, Libby Adler's book is a major intervention that may help produce a more economically redistributive LGBT social movement in the United States."
“Libby Adler takes a smart, provocative, and fascinating approach to the question of law reform on LGBTQ rights. Proposing to upend the civil rights horizon formulated by the official representatives of the LGBTQ community, Adler makes a rigorous and radical critique of the conventional wisdom about what it means to 'win' gay rights. We desperately need these kinds of sustained and argued challenges to the mainstream gay rights agenda.”