Constructing Queer Theory in Political Science and Public Law: Sexual Citizenship, Outspeech, and Queer Narrative

Abstract

Queer theory is nearly absent from political science, including public law. This article advances constructivism as a paradigm shift in the context of sexual citizenship. The project, informed by queer theory, argues that political and legal systems (and related academic disciplines) regulating sexual citizenship should consider the political, legal, and cultural technologies that construct mutable sexualities, rather than viewing sexualities as innate and fixed. Despite significant political and legal advances under the sexual-essentialist paradigm, this paradigm gets in the way of manifesting a number of “possibilities” to which queer theory alludes, and besides, sexual essentialism is not true. Having political science and public law consider sexual constructivism particularly and queer theory generally is critical to understanding sexual citizenship politics. Doing so involves claiming queer theory as a decidedly political theory and, therefore, a province of political science. This article discusses reasons for a paradigm shift toward sexual constructivism and why political science and law are notably late to embracing queer theory. I offer “outspeech” as one possibility for a queer legal theory that reshapes sexual citizenship. I end with a call for more queer narratives and autoethnographies.

Notes

¹ Richard Thompson Ford, “What’s Queer about Race?,” South Atlantic Quarterly 106:3 (2007), p. 479.

² Michael Warner, Fear of a Queer Planet (Minneapolis, MN: University of Minnesota Press, 1993), p. xiii.

³ Lauren Berlant and Michael Warner, “What Does Queer Theory Teach Us about X?,” PMLA 110:3 (1995), pp. 343–49.

⁴ Jerry Thomas, “Queer Sensibilities: Notes on Method,” Politics, Groups, and Identities 5:1 (2017), pp. 172–81.

⁵ Shane Phelan, Sexual Strangers: Gays, Lesbians, and Dilemmas of Citizenship (Philadelphia, PA: Temple University Press, 2001), p. 156 (noting particularly that hypermasculine bodies threaten the masculine body (such as the slave or his sons) as well as represents “too much corporeality and not enough time in an armchair”).

⁶ Ibid., 157.

⁷ Ibid., 161.

⁸ Iris Marion Young, Justice and the Politics of Difference (Princeton, NJ: Princeton University Press), p. 169 (discussing Martha Minow and the “dilemma of difference”).

⁹ Tony E. Adams and Derek M. Bolen, “Tragic Queer at the Urinal Stall, Who, Now, Is the Queerest One of All? Queer Theory | Autoethnography | Doing Queer Autoethnography,” QED 4:1 (2017), pp. 100–13; Stacy Holman and Tony E. Adams, “Autoethnography is a Queer Method,” in Kath Browne and Catherine J. Nash (eds), Queer Methods and Methodologies: Intersecting Queer Theories and Social Science Research (New York, NY: Routledge, 2016); Tony E. Adams and Stacy Holman Jones, “Telling Stories: Reflexivity, Queer Theory, and Autoethnography,” Cultural Studies ↔ Critical Methodologies 11:2 (2011), pp. 108–16.

¹⁰ Paul Monette, “The Politics of Silence,” Last Watch of the Night (New York, NY: Harcourt Brace & Co., 1994), pp. 116–31.

¹¹ Marla Brettschneider, “Heterosexual Political Science,” PS: Political Science and Politics 44:1 (2011), p. 23.

¹² Judith Butler, Gender Trouble (New York, NY: Routledge, 1990).

¹³ Eve Kosofsky Sedgwick, “How to Bring Your Kids Up Gay,” Social Text 29 (January 1991), pp. 18–27.

¹⁴ Nicola J. Smith and Donna Lee, “What’s Queer About Political Science?,” British Journal of Politics and International Relations 17:1 (2015), p. 53 (internal citations omitted).

¹⁵ Ibid., 50.

¹⁶ Jyl J. Josephson, Rethinking Sexual Citizenship (Albany, NY: State University of New York Press, 2016); Paisley Currah, “The State of LGBT/Sexuality Studies in Political Science: Editor’s Introduction,” PS: Political Science and Politics 44:1 (2011), pp. 13–16; Susan Burgess, The Founding Fathers, Pop Culture, and Constitutional Law (Burlington, VT: Ashgate Publishing, 2009). Susan Burgess, “Queer (Theory) Eye for the Straight (Legal) Guy: Lawrence v. Texas’ Makeover of Bowers v. Hardwick,” Political Research Quarterly 59:3 (2006), pp. 401–14; Shane Phelan, Sexual Strangers, supra note 5.

¹⁷ Josephson, Rethinking Sexual Citizenship.

¹⁸ Ibid., 37.

¹⁹ Brettschneider, “Heterosexual Political Science,” p. 24.

²⁰ Ibid., 23.

²¹ Ibid.

²² A notable exception is Carl Stychen, Law’s Desire: Sexuality and the Limits of Justice (New York, NY: Routledge, 1995), (“Sexuality is socially constructed and law participates in this process.”), p. 7.

²³ Janet Halley and Andrew Parker, “Introduction,” After Sex? On Writing Since Queer Theory (Durham, NC: Duke University Press, 2011), p. 2 (emphasis in original).

²⁴ Ibid., 3.

²⁵ Ibid.

²⁶ Gerald N. Rosenberg, The Hollow Hope: Can Courts Bring About Social Change (Chicago, IL: University of Chicago Press, 2008).

²⁷ R. Claire Snyder, Gay Marriage and Democracy: Equality for All (Lanham, MD: Rowman & Littlefield, 2006).

²⁸ Lisa Duggan, The Twilight of Equality? (Boston, MA: Beacon Press, 2003), p. 50.

²⁹ Obergefell v. Hodges, 135 S.Ct. 2584 (2015).

³⁰ Ibid., 2594.

³¹ Maxine Eichner, “Feminism, Queer Theory & Sexual Citizenship,” in Linda C. McClain and Joanna L. Grossman (eds), Gender Equality: Dimensions of Women’s Equal Citizenship (New York, NY: Cambridge, 2009), p. 317.

³² Halley and Parker, After Sex?, p. 3.

³³ Michael O’Rourke, “The Afterlives of Queer Theory,” Continent 1:2 (2011), pp. 102–16 (concluding, however, queer theory is not dead).

³⁴ Jerry D. Thomas, “Queer Sensibilities and Other Fagchild Tools,” in Marla Brettschneider, Susan Burgess, and Christine Keating (eds), LGBTQ Politics: A Critical Reader (New York, NY: New York University Press, 2017), pp. 394–419 (internal citations omitted).

³⁵ Lauren Berlant and Michael Warner, “What Does Queer Theory Teach Us about X?,” PMLA 110:3 (1995), p. 344.

³⁶ Burgess, Who’s Your Daddy?, p. 95.

³⁷ Ibid.

³⁸ Julie Novkov and Scott Barclay, “Lesbians, Gays, Bisexuals, and the Transgendered in Political Science: Report on a Discipline-Wide Survey,” PS: Political Science & Politics 43:1 (2010) (showing queer faculty do not fare as well professionally as non-queer colleagues), pp. 95–106.

³⁹ Judith Butler, “Against Proper Objects,” Differences 6:2–3 (1994), p. 21 (“normalizing the queer would be, after all, its sad finish”).

⁴⁰ Currah, “The State of LGBT/Sexuality Studies in Political Science,” p. 15.

⁴¹ Smith and Lee, “What’s Queer About Political Science?,” p. 50.

⁴² Ibid., 59.

⁴³ Christopher Schmidt, The Poetics of Waste: Queer Excess in Stein, Ashbery, Schuyler, and Goldsmith (New York, NY: Palgrave MacMillan, 2014).

⁴⁴ Smith and Lee, “What’s Queer About Political Science?,” p. 55.

⁴⁵ Rebecca M. Jordan-Young, Brainstorm: The Flaws in the Science of Sex Differences (Cambridge, MA: Harvard University Press, 2010).

⁴⁶ Ibid., 289.

⁴⁷ Ibid., 291.

⁴⁸ Ibid., 290.

⁴⁹ Ibid., 11.

⁵⁰ Novkov and Barclay, “Lesbians, Gays, Bisexuals, and the Transgendered in Political Science,” pp. 95–106.

⁵¹ Michael O’Rourke, “The Big Secret about Queer Theory” Inter Alia: A Journal of Queer Studies 9: Special Issue (Bodily Fluids) (2014), p. 1.

⁵² O’Rourke, “The Big Secret about Queer Theory,” p. 5.

⁵³ U.S. v. Windsor, 133 S.Ct. 2675 (2013).

⁵⁴ Duggan, Twilight of Equality?

⁵⁵ Ibid., xiv (emphasis in original).

⁵⁶ Leslie J. Moran, “The Juridical Virtue of Sexuality,” in Robert Leckey and Kim Brooks (eds), Queer Theory: Law, Culture, Empire (New York, NY: Routledge, 2010), p. 88.

⁵⁷ Young, Justice and the Politics of Difference.

⁵⁸ Phelan, Sexual Strangers, p. 161.

⁵⁹ Margaret Jane Radin, “The Pragmatist and the Feminist,” Southern California Law Review 63 (September 1990), pp. 1699–726.

⁶⁰ Christopher R. Leslie, “The Evolution of Academic Discourse on Sexual Orientation and the Law,” Chicago-Kent Law Review 84:2 (2009), pp. 345–77.

⁶¹ Ibid.

⁶² Emily L. Stark, “Get a Room: Sexual Device Statutes and the Legal Closeting of Sexual Identity,” George Mason University Civil Rights Law Journal 20 (Summer 2013), pp. 315–49; Kathryn Ward, “The First Amendment and Personal Expression of Sexuality,” Georgetown Journal of Gender and the Law 6:3 (2005), pp. 359–77; Blanca L. Hernandez, “The Prurient Investment: How First Amendment Speech Jurisprudence Obstructs the Movement for LGBT Equality,” Southern California Review of Law and Social Justice 22 (Spring 2013), pp. 377–415; Margo Kaplan, “Sex Positive Law,” New York University Law Review 89 (April 2014), pp. 89–164.

⁶³ Hernandez, “The Prurient Investment.”

⁶⁴ Brown v. Entertainment Merchants Assoc., 564 U.S. 786 (2011), p. 857.

⁶⁵ Hernandez, “The Prurient Investment.”

⁶⁶ Ibid.

⁶⁷ Kaplan, “Sex Positive Law.”

⁶⁸ Ibid., 111–12.

⁶⁹ Ibid.

⁷⁰ Ibid., 143–50.

⁷¹ Lee Edelman, No Future: Queer Theory and the Death Drive (Durham, NC: Duke University Press, 2004), p. 6.

⁷² Valerie Rohy, Lost Causes: Narrative, Etiology, and Queer Theory (New York, NY: Oxford University Press, 2015).

⁷³ Angela P. Harris, “Race and Essentialism in Feminist Legal Theory,” Stanford Law Review 42:3 (1990), pp. 581–616.

⁷⁴ Snyder v. Phelps, 562 U.S. 443 (2011).

⁷⁵ Citing Texas v. Johnson, 491 U.S. 397 (1989), p. 414.

⁷⁶ Phelan, Sexual Strangers, pp. 40–62; 156.

⁷⁷ Ibid., 51–3.

⁷⁸ Fricke v. Lynch, 491 F. Supp 381 (1980).

⁷⁹ Eichner, “Feminism, Queer Theory & Sexual Citizenship,” p. 317.

⁸⁰ Phelan, Sexual Strangers, p. 152.

⁸¹ Ibid., 156.