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Abstract:
Conceptualizing the relationship between sexuality and democracy requires not only an interrogation of both terms, but also an exploration of the ways in which democracy seeks to accommodate and appropriate the sexual. Recent litigation and legislation regarding same-sex relationships in South Africa casts a spotlight on the interaction between sexuality and democracy, but the illumination is partial. It is necessary to explore sexuality in a broader context, including discomfiting sexual practices, as a matter of the democratic constitutional norms of equality and dignity. Otherwise, a sentimentalized version of sexuality, with certain lesbians and gay men installed as a model minority, threaten to become the democratic standard.

Sexuality, Lesbian, South Africa, Democracy

Abstract:
In this narrative piece, the author uses footnotes and personal history to analyze the term lesbian in legal scholarship.

lesbian, narrative theory

Abstract:
In 1980, feminist and lesbian theorist Adrienne Rich published her now-classic essay “Compulsory Heterosexuality and Lesbian Existence” in which she argued against the universalization and naturalization of women’s heterosexuality. Rich posited that heterosexuality needed to be “recognized and studied as a political institution-even, or especially, by those individuals who feel they are, in their personal experience, the precursors of new social relation.” Rich challenged feminists to “take the step of questioning heterosexuality as a ‘preference’ or ‘choice’ for women,” contending that heterosexuality “may not be a ‘preference’ at all but something that has had to be imposed, managed, organized, propagandized, and maintained by force.” While Rich’s essay was not unproblematic, especially with regard to postulating a “lesbian continuum” of resistance to heterosexuality, compulsory heterosexuality has become a core concept in feminist and queer theorizing. In Rich’s original essay, compulsory heterosexuality and marriage were often conflated, but more recent legal developments regarding same-sex marriage raise the possibilities of decoupling heterosexuality and marriage. Indeed, some theorists argue that same-sex marriage has the potential to eradicate compulsory heterosexuality.

However, even assuming that same-sex marriage can undermine compulsory heterosexuality, this should not immunize marriage itself from interrogation. Marriage, as much as-if not more than-heterosexuality, is a political institution. In this chapter, I appraise a variety of forces that impose, manage, organize, propagandize and forcefully maintain the political institution of marriage. The first section considers how state-sanctioned economic arrangements advantage married persons over unmarried persons, thus making the choice of marriage the economically advantageous choice in a capitalist economy. The next section focuses on the gendered and class dimensions of the state’s support of marriage, especially as it affects women in poverty. In the third section, I examine the way in which the law tolerates discrimination against the unmarried, while privileging those who are married. Finally, the last section addresses the forces that promote marriage, again especially for women: Section four focuses on the legal forces, both direct and indirect, while section five considers the social realm. The chapter concludes that there is a regime of compulsory matrimony and that it is as least as problematical as a regime of compulsory heterosexuality.

Abstract:
This essay considers the role of feminist legal theories in confronting the continuing issue of domestic service. Part one discusses MRS. WOOLF AND THE SERVANTS: AN INTIMATE HISTORY OF DOMESTIC LIFE IN BLOOMSBURY by Alison Light, including both the particularities and larger social aspects of Virginia Woolf's employment of domestic workers. Part two examines Long Island Care at Home v. Coke, in which the United States Supreme Court upheld a regulation that exempted certain employees in "domestic service" from minimum and overtime wage laws even if they were hired by a company rather than a household. Part three considers the trial and proceedings in US v. Sabhani, in which the United States prosecuted and a jury convicted a woman and a man for "forced labor" and "document servitude" of two women from Indonesia. In the last section, the essay compares the situations of Virginia Woolf and her servants, Long Island Care at Home, Ltd. and its servants, and Varsha Sabhnani and her servants. The essay argues that any relationship categorized as "servant" and "master," even when the "master" is a "mistress," and even when the master/servant dichotomy is viewed as a relatively equal contractual relationship rather than one based on status, is deeply problematical. The essay further argues that this "servant problem" needs much more feminist attention.

feminism, class, Virginia Woolf, work, domestic work, servant, wage

Abstract:
This essay/review by Ruthann Robson and Tanya Kessler, published at 53 McGill Law Journal 535-571 (2008), situates Brenda Cossman's book Sexual Citizens in the context of sexual-citizenship discourse, which has arisen from the critique of dominant theories of citizenship that fail to recognize citizenship as gendered, racialized and sexualized. Cossman employs the term "citizenship" to mean not only a formal legal status, but also metaphorically as forms of belonging, recognition and participation. Using examples from popular culture, she seeks to illustrate that the emerging sexual citizenship of sexual minorities in the United States is overtly sexual, yet also privatized and self-disciplined.

Using Sexual Citizens as an illustration, the authors suggest that sexual citizenship discourse currently neglects the issue of sexual minorities' access to formal citizenship. In many cases, formal citizenship status is even presumed. At a time of burgeoning repression of immigrants in the United States and elsewhere, sexual-citizenship discourse should be more cognizant of citizenship as a formal legal status and explore the manner in which immigration law regulates sexual practices. Although the language of citizenship can provide some valuable metaphors for sexual minorities and is an apt response where the nation-state invokes citizenship to regulate behaviour, this analysis should confront the notion of citizenship itself. Indeed, the rubric for theorizing the regulation of citizenship should not necessarily be citizenship, since it risks perpetuating the notion's noninclusiveness. The authors thus propose that a language of "personhood" may be more suitable in pursuing rights and participation for sexual minorities.

sexuality, citizenship

Abstract:
This piece appears in the anthology TO HAVE AND TO HOLD: THE MAKING OF SAME-SEX MARRIAGE IN SOUTH AFRICA. It considers the Fourie judgment and the Civil Unions Act in South Africa from the personal perspective of a United States lesbian legal academic and activist. Beginning in 1979, the piece sets the stage for the inconceivability of the developments of the South Africa Constitution and same-sex marriage. The article then briefly discusses the judgment and act, including personal reactions. Turning to the future, the style becomes that of a judgment from the South African Constitutional Court, set in the year 2027, and analyses a hypothetical challenge to some hypothetical legislation.

Lesbian, gay, same-sex marriage, South Africa, marriage

Abstract:
Sexual freedoms have become a flashpoint for contemporary controversies surrounding judicial review. The power of an often unelected judiciary to declare acts of a usually elected legislature, or even products of direct democracy, void as unconstitutional, is a prominent feature of constitutionalism in the United States and in some, but not all, other constitutional democracies. Yet judicial review continues to be contested in jurisprudence, political discourse, and in judicial decisions themselves.

This article elucidates the mainstream theorizing on judicial review, arguing that it is deficient for three reasons. First, although the debates regarding judicial review refer to sexual freedoms, the theorizing is abstracted from the actual controversies surrounding sexual freedom and often implies that sexual freedom itself is of less consequence than the larger issues at stake. Second, the mainstream jurisprudential debates have mostly failed to incorporate the perspectives of feminist and queer legal theorists, even when such work has been directly relevant. Third, the debates in the United States regarding judicial review often proceed as if the United States is exceptional and sui generis, usually with a reflexive privileging of originalism and historical exegesis.

This article addresses these deficiencies by centralizing the substance of the controversies related to judicial review, by incorporating queer and feminist theorizing, and by considering in depth the disparate approaches to judicial review in three jurisdictions often considered at the forefront of sexual freedom: California, the Netherlands, and South Africa. The conclusion posits principles for theorizing judicial review in constitutional democracies in order to promote sexual freedom.

sexuality, lesbian, democracy, constitutional law, judicial review, comparative law