Gay Marriage
L9552, English 6610

Professors Katherine Franke & Katherine Biers
Fall 2010
Wednesdays 4:10-6:20
Room JG 602

Some have argued that marriage equality for same-sex couples is the civil rights issue of this generation.  In fact, marriage has played an important role in the both the denial and the advancement of freedom since the founding of the United States. Through both  legal and literary texts, this interdisciplinary seminar will examine important social,  cultural, legal and historical aspects of today's debates about gay marriage. Our topics will include the relationship of current-day marriage debates to notions of citizenship and to the history of marriage itself as a civil institution; the representation of this relationship in literature, and the literary and performative strategies used by the law to codify the meaning of marriage; the theory of both marriage and the law as performances; and the strengths and weakness of the legal strategies -- fundamental  right, a right to equality, and a right to dignity -- that are regularly used today to argue for the right to marry. 

Students are expected to do all the reading in advance of each seminar meeting, attend every seminar meeting, and participate actively in seminar discussion.  Students will  present weekly readings in small groups students and will write a 20-25 page seminar paper on a topic approved by the professors.  Seminar paper topics must be developed by  the students and approved by the Professors no later than October 8th.  Final papers will  be due on December 22nd.  Law students may use the seminar paper to fulfill the major or  minor writing requirements for the J.D. degree.  The paper will determine 75% of the  grade, while seminar attendance, class presentations and class participation will make up  25% of the grade.

Readings for the class will available at Book Culture, 536 W. 112th Street, as links on the website, or distributed to the class.

Professor Biers' Coordinates:

Office: 408B Philosophy Hall
Office Hours: Thurs 4-6
Phone: 851-2490

Professor Franke's Coordinates:

Office:  627 Jerome Greene Hall
Office Hours: Tuesdays, 2-4 (sign-up sheet on my door) or by appointment
Phone: 854-0061


September 8: Introduction

View and discuss reenacted Prop 8 trial excerpts with eye to:

- The different arguments made in favor of requiring the law to allow same-sex couples to marry
-  The nature of performance, testimony, and witnessing.  What are the possibilities and limitations of raising this issue in a trial as opposed to in a legislature, in film/TV, in performance art, in literature, or elsewhere?  To what degree do the forum, its vernacular, and its performative possibilities shape issue?

September 15:  Marriage and Civil Rights -- History I: Law Shaping Society

- Conrad Aiken, Uncle Tom's Cabin (1852)
- Katherine Franke, Becoming A Citizen: Post-Bellum Regulation of African American Marriages, 11 Yale J. of Law & the Humanities 251 (1999)
- Lauren Berlant, Poor Eliza, in No More Separate Spheres! Ed. Davidson and Hatcher, Duke UP: 2002
- Ariela Dubler, In the Shadow of Marriage: Single Women and the Legal Construction of the Family and the State, 112 Yale L.J. 1641 (2003)
- Katherine Boo, The Marriage Cure: Is Wedlock Really a Way Out of Poverty? The New Yorker Aug. 18, 2003 

Optional Reading:

- Ed Stein, "Past and Present Proposed Amendments to the United States Constitution Regarding Marriage," Issues in Legal Scholarship (2004)
- Peter W. Baradaglio, "'Shameful Matches': The Regulation of Interracial Sex and Marriage in the South Before 1900" in Sex, Love, and Race: Crossing Boundaries in North American History (Martha E. Hodes, ed., 1999) 

Reading Questions:

- "Uncle Tom's Cabin" (1858) the play adapts Harriet Beecher Stowe's 1852 novel for the stage.  Like Stowe's supposedly world-altering text, it can be understood to persuasively argue for legal and political recognition of the slave's fundamental right to freedom and self-determination.  Where do you see examples of this arguments in the text (in speeches by characters, or in the plot or themes)?  What role do the depictions of the various marriages (and marriage proposals) play in forwarding this argument?

- Keeping in mind Lauren Berlant's claim about the importance of sentimentality to politics and political change in America, what is the significance of the name "Miss Feely," or of the deaths of Little Eva and Tom?

- Franke (254) outlines a paradox central to civil rights claims, whereby the assertion of rights initiates the regulation and shaping of identity by the state, even though those rights are being asserted as a means of achieving greater freedom.  Where would you situate "Uncle Tom's Cabin" in relation to this problem?  Does the play also "produce" domesticated citizens, even as it argues for the liberation of slaves?

- What examples do you see in the play of abolition affording a "felicitous convergence of the interests of Black and white males" (Franke 255)?

September 22:  Marriage and Civil Rights -- History II: Society Shaping Law -- In-class presentations begin

- Sharon Marcus, The Genealogy of Marriage, in Between Women: Friendship, Desire, And Marriage In Victorian England (2007)
- Dirk Hartog, Abigail Bailey's Coverture: Law in a Married Woman's Consciousness, in Law in Everyday Life (Sarat & Kearns eds., 1995)
- Susan Glaspell, Trifles (1917)            

September 29: Marriage as Fundamental Right I   

- Carson McCullers, The Member of the Wedding (1946) - available at Book Culture
- Beth Freeman, The We of Me: The Member of the Wedding's Novel Alliances, The Wedding Complex: Forms of Belonging in Modern American Culture Duke UP: 2002

 October 6: Marriage as Fundamental Right II

- Skinner v. Oklahoma, 316 U.S. 535, 541 (1942)
- Perez v. Lippold, 32 Cal.2d 71 (1948)
- Griswold v. Connecticut, 381 U.S. 479, 485 (1965)
- Zablocki v. Redhail, 434 U.S. 374 (1978
- Lawrence   v. Texas, 539 U.S. 558 (2003)
- Cass Sunstein, The Right to Marry, 26 Cardozo L. Rev. 2081 (2004)
- Patricia A. Cain, Imagine There's No Marriage, 16 QLR 27 (1997)       

While reading these cases, identify the nature of the right that the Court is recognizing.  Why is it fundamental?  Fundamental to what or in what sense? What other rights seem to be tied up in the fundamental right at stake?  How has the Court's thinking of marriage as a fundamental right evolved since Skinner?  How would you use the language and reasoning from these cases to make the case for a right to same-sex marriage?  Did you hear echoes of the reasoning in these cases in the excerpted testimony from Perry that we watched the first day of class? 

Consider how courts, in comparison with the literature we have read, treat marriage as fundamental.  Do they share any similarities, does the genre matter in what it means for something to be fundamental? 

October 13: Fundamental Right in the Marriage Litigation

- Goodridge v. Dept of Public Health, Plaintiffs' Memorandum in Support of Motion For Summary Judgment
- Goodridge v. Dept of Public Health, 798 N.E. 2d 941 (2003)
- Hernandez v. Robles, 7 N.Y. 3d 338 (2003)(Kaye dissent)
- Lewis v. Harris, 908 A.2d 196 (2006)
- In re Marriage Cases, 183 P.3d 384 (Cal. 2008)
- Perry v. Schwarzenegger
- David Eng, The Law of Kinship: Lawrence v. Texas and the Emergence of Queer Liberalism, in The Feeling of Kinship: Queer Liberalism and the Racialization of Intimacy, Duke UP, 2010.

October 20:  Marriage and Equality Rights I

- Nella Larsen, Passing - available at Book Culture
- Corinne E. Blackmer, The Veils of the Law: Race and Sexuality in Nella Larsen's Passing, College Literature, Vol. 22, No. 3, 1995

October 27: Marriage and Equality Rights II

- Plessy v. Ferguson, 163 U.S. 537 (1896)
- Brown v. Board of Education, 347 U.S. 483 (1954)
- McLaughlin v. Florida, 379 U.S. 184, 189-90 (1964)
- Loving v. Virginia, 388 U.S. 1 (1967)
- Romer v. Evans, 517 U.S. 620 (1996)
- Lawrence v. Texas, 539 U.S. 558 (2003) (O'Connor concurrence, Scalia dissent)
- Richard Thompson Ford, What's Queer About Race?, 106 S. Atlantic Quarterly 476 (2008)

November 3: Equality in the Marriage Litigation

- Hernandez v. Robles, 7 N.Y. 3d 338 (2003)
- Complaint in Varnum v. Brien
- Varnum v. Brien, 763 N.W.2d 862 (2009)
- Perry v. Schwarzenegger
- Eve Sedgwick, How To Bring Your Kids Up Gay, 29 Social Text 18 (1991)
- Katherine Franke, Longing for Loving, 76 Fordham L. Rev. 2685 (2008) 
- Andrew Koppelman, Discrimination Against Gays Is Sex Discrimination

November 10: Marriage Rights as Dignity I

- Mark Merlis, American Studies (1994) - available at Book Culture
- George Chauncey, "The Legacy of AntiGay Discrimination" in Why Marriage?: The History Shaping Today's Debate Over Gay Equality. NY: Basic Books, 2005.
- Leo Marx, "F.O. Matthiessen" in The Pilot and the Passenger: Essays on Literature, Technology, and Culture in the United States. New York: OUP, 1988 

November 17: Marriage Rights as Dignity II

- Martha Nussbaum, A Right To Marry, 98 Cal. L. Rev. 667 (2010)
- David Novak, A Response to Martha Nussbaum's "A Right To Marry?", 98 Cal. L. Rev. 709 (2010)
- Michael Warner, Response to Martha Nussbaum, 98 Cal. L. Rev. 721 (2010)
- Martha Nussbaum, Reply, 98 Cal. L. Rev. 731 (2010)

November 24: No Class - Thanksgiving Break

December 1: Dignity in the Marriage Litigation

- Complaint in Varnum v. Brien
- Testimony of Helen Zia, Perry v. Schwarzenegger
- Testimony of Ilan Meyer, Perry v. Schwarzenegger
- Michael Warner, The Trouble With Normal (2000)

December 8: Video Projects