Reconstructing Marriage: An InterSEXional Approach

Abstract

This essay is published in the 1998 Symposium issue of the University of Denver Law Review, which addresses InterSEXionality, an interdisciplinary analysis of intersectionality theory focusing on sexual orientation. Reconstructing is an offshoot of a larger article titled Marriage: A Proposal for Valuing Women's Work through Premarital Security Agreements, 77 Texas L. Rev. 17 (1998), which was abstracted in LHLH #13. Commercializing Marriage proposes that the twin problems of displaced homemaker indigency and the general devaluation of women?s work may be alleviated by commercializing marriage through premarital security agreements (PSAs). PSAs are modeled on commercial security agreements and import the rights and duties of creditors and debtors to the marital relationship. This importation is justified because in a typical marriage the primary homemaker contributes substantially to the primary wage-earner's stream of income, but post-divorce stream of income usually is not distributed upon divorce (even though it is often the most important asset in a marriage). This inequitable distribution of marital assets often leaves the homemaker in significantly worse financial shape than her former spouse. Reconstructing expands this analysis to sexual orientation legal theory, asking whether PSAs might queer legal theory by reconstructing marriage doctrine. Doing so arguably implements Dorothy Allison and Esther Newton's imperative that queer theorists heterosexuality first, rather than deconstruct gay, lesbian and bisexual identity while leaving unchallenged constructions of heterosexuality as natural or superior to other forms of sexuality. This essay briefly describes PSAs and sketches how they have the potential to appeal to a wide range of ideological positions in the debate about justifying alimony, then enlarges the analysis of to speculate about how various queer theorists and queer legal theorists (including Adrienne Rich, Judith Butler, Janet Halley, Lisa Duggan, Mary Anne Case, Katherine Franke, Frank Valdes, William Eskridge, and Darren Hutchinson) might appreciate and/or object to PSAs. PSAs might queer legal theory in five ways. They could (1) undermine compulsory heterosexuality by expanding women?s exit options in marriage; (2) account for gender performativity by destabilizing naturalist constructions of gender and heterosexuality in a strategically provisional way; (3) queer the state by appropriating liberal discourse toward radical ends; (4) intervene in legal and social conflations of sex, gender, and sexual orientation; and/or (5) pave the way toward legal recognition of same-sex marriage by focusing on financial rather than gendered or sexual aspects of marriage. However, queer legal theorists might balk at PSAs to the extent that PSAs: (1) support compulsory heterosexuality and gender hierarchy by tying the worth of a homemaker's labor to the wages of her spouse; (2) reinforce class and race hierarchies by remunerating homemaking more generously if the spouses are white and middle or upper middle class, and/or (3) further marginalize gay people of color and poor gay people in focusing on marriage as the means by which all gay people can enter the mainstream. Finally, this essay briefly explores the feasibility of applying PSAs to same-sex relationships. If commercializing marriage through PSAs has even some of the effects suggested, PSAs could well play a role in reconstructing the gendered nature of marriage and thus queering legal theory and doctrine.