3. Queer Legal Victories: Intersectionality Revisited

(Excerpt) In my 1995 article "Queer Intersectionality and the Failure of Lesbian and Gay ‘Victories,’” I merged queer and intersectionality theories to critique four lesbian and gay legal “victories.” I argued that queer identity intersected with other identity characteristics, yielding queer communities whose diverse needs reflect their various class, race, gender, and sex identifications. This intersectional perspective led me to view these decisions as victories for only a privileged subset of queer communities that, "but for" their gay or lesbian identity, conform to the "American dream" (De Lauretis 1991; Robson 1992). The United States' juridical heterosexism stifled the progressive potential of these cases. Since that article, the intersectionality of queerness has become accepted wisdom (Eng, Halberstam, and Munoz 2005). This chapter applies a queer intersectional analysis to more recent queer legal successes, interrogating both their utility and some of the queer critiques that have greeted them. In 2003, the U.S. Supreme Court reversed Bowers v. Hardwick (1986) in Lawrence v. Texas, finding that state regulation of private sexual conduct violated the U.S. Constitution. A few months after Lawrence, the Massachusetts Supreme Judicial Court decided Goodridge v. Department of Public Health (2003), in which it found that the restriction of marriage to opposite-sex couples violated Massachusetts' constitution, opening the way for the first legal marriages between two people of the same sex in the United States. About five years farer, the California, Connecticut, and Iowa Supreme Courts and the Vermont, Maine, and New Hampshire legislatures followed Massachusetts' lead and established marriage equality. A queer intersectional analysis remains vital. Time has proven the accuracy of an expansive and fluid understanding of sexuality, both as borders dissipate and as younger individuals battle heterosexism while refusing to be confined to established identity categories. As in the mid-1990s, articulating queer legal needs and assessing whether these cases adequately reflect the breadth of these needs require probing analysis. In that period, the 1989 case, Braschi v. Stahl Assoc., embodied the law's progress and limitations concerning queer issues, which are in part a function of the cultural complexity of queer identity.