Engaging legal institutions is key.

While they vary in form and focus, the contributions to this issue of Critical Analysis of Law invite reflection on what I take to be one of the animating ambitions of queer legal teaching and writing on sex and sexuality law: to radically reimagine and rethink the relationship between legal theory and legal practice (a relationship, it should be noted, which in the U.S. common law system and legal academy has always accorded priority and primacy to the latter). If the central object of mainstream sex law scholarship is the theory of legal practice, the field-defining feature of queer legal studies is a preoccupation with the practice of legal theory or, more precisely, a reflexive understanding that the practice of legal theory is a kind of legal practice and not just a second-order theory about law practice. Put another way, queer legal studies involves a commitment by those who do it to active and ongoing mindfulness of the ways in which legal theorizing about sex, gender and sexuality, like all legal theory, is a practice that takes place “in the world, as well as in the academy.” 3

“Queer legal methods” (and we must speak here in the plural) thus reject the traditional and (at least in the U.S.) still dominant view that positions legal scholars and the practice of legal scholarship in a domain which—at least aspirationally or “in theory”—is separate and distinct from, and only contingently connected to, the legal actors, ideologies and institutions law studies. Queer legal inquiry understands itself to be immanently located, embedded and invested in the field of sex and gender law that it investigates.

Taking these axiomatic observations about the dependent origination and transversal imbrication of theory and practice as a point of departure, I propose to offer a few thoughts on the relevance, meaning and value of the idea of “critical analysis of law” in queer legal studies. Notions of the “critically queer,” “queer as critique,” the “queercritical,” “critical queer engagement” and “critical queer legal sensibility” figure explicitly here in Joseph Fischel’s conversation with Paisley Currah and Aeyal Gross,4 as well as in the essay by Brenda Cossman.5 Each of these contributions draws—or can be read to draw—an implicit distinction between “critical” and “non-” or “anti-critical” queer inquiry, interpretation and argument. The question I propose to explore here is, “What makes this or that practice of queer legal theory a ‘critical’ practice?” Using two very different queer theoretical arguments on the subject of same-sex marriage as interlocutive texts, I am going to suggest that we can parse the distinction between “critical” and “non-critical” queer legal imaginaries and analysis by looking at whether and (if so) how particular queer theory arguments engage the question of power.

In Wedlocked: The Perils of Marriage Equality, Katherine Franke argues that the story of the legal struggle for the right to “same-sex marriage” offers a case study of the ways “rights-bearing subjects are almost inevitably shaped by the very rights they bear.” 6 For Franke, this juridical subject-shaping reveals that “rights” and “freedom” are not only contingently, but inversely, related: to gain rights is to lose freedom. Writing in the midst of what would become a successful campaign to secure the right to marry in the U.S., Franke notes the paradoxical situation in which gay and lesbian Americans were to find themselves once they were forced to reckon with the reality that “the state acquires a legal interest in your relationship” when one enters the regime of civil marriage.7 “[Y]our relationship is now governed by law, and . . . you have to play by law’s rules.” 8 This “[c]loaking” of “freedom in state regulation . . . is a curious freedom indeed, for this freedom comes with its own strict rules.” 9

Wedlocked figures the presence of the state and state regulation of sex as the absence of sexual freedom. In this vision, then, the decision to embrace a civil rights vision that sought “public citizenship” in the “distinctly private domain” of marriage can only be considered a tragic choice.10 Indeed, Franke depicts the decade or so between the 2003 Supreme Court decision in Lawrence v. Texas11 that struck down criminal prohibitions on consensual gay and lesbian sex and federal judicial recognition of a constitutional right to same-sex marriage rights in almost nostalgic terms. During this brief interregnum, lesbians and gay Americans were able to live out “a kind of freedom from the ‘bonds’ of marriage.” 12 This was a moment, in Franke’s account, that allowed gay men and lesbians to creatively experiment with and explore relational possibilities beyond the boundaries of state governance. What, we might then ask, drove the leaders of the “marriage equality” movement to throw themselves so eagerly into the arms of the law, to bargain away their “freedom from marriage” in exchange for the “freedom to marry”? How do we explain the “strange,” “curious,” “odd yearning” of some gay men and lesbians for public state recognition of our private sexual relationships and intimate associations?13

Building on a line of argument first developed by queer studies scholars such as Lauren Berlant and Michael Warner,14 Franke’s answer begins by noting the ways in which “gaining the right to marry has marked a kind of emancipation from the burden of social abjection.” 15 This is so on at least two grounds. First, the marriage license operates as a badge of social belonging and state recognition of the equivalence of hetero- and homoconjugality. Second, the marriage license serves as a symbolic credential that attests to the value and legitimacy of a homosexual couple’s relationship. To possess a marriage license is to possess a species of symbolic currency—a conjugal coupon, if you will—which can be used to redeem the myriad economic, legal and social privileges that flow from membership in the marriage club.16

Franke contends that the success of the American campaign for “marriage equality” was achieved in no small part through a “conscious strategy of radically refiguring the meaning of homosexuality.” 17 In a pivotal passage, Wedlocked describes this cultural project in language that warrants extended quotation:

This entailed carefully crafting a revised conception of gayness organized around a status or stable identity rather than sexual acts, and substituting love and familial devotion as the operative forms of affect that bound same-sex couples together rather than sodomy or sexual attraction. Put more bluntly, it meant reorienting the public’s attention from the genitals to the heart, from the bushes to the hearth, from prurience to parenthood and from sin to sacrament.18

In short, argues Franke, the campaign to achieve lesbian and gay marriage rights “successfully rebranded” gay and lesbian identity and experience by “cleaving the sex out of homosexuality.” 19 The tragedy, in Franke’s view, was that this historic social movement mobilization and meaning-making sought and secured nothing more than the hollow, heterocentric right to be “locked into a set of traditions and roles that [the lesbian and gay community] had no part in creating and that were not formed with us in mind.” 20

In this volume, Brenda Cossman includes Katherine Franke in the company of scholars who draw on the language and ideas of queer theory without identifying as queer theorists.21 In both its formal method and its substantive themes, Wedlocked’s argument against same-sex marriage is clearly “queerly influenced.” 22 Contrast the “no name queerness” 23 of Franke’s cautionary tale about the perils of the same-sex marriage with the very different uses to which Kim Katrin Milan and Tiq Milan put queer theory language and concepts in their “A Queer Vision of Love and Marriage.” 24

In a TED Talk that has, as of this writing, received nearly 1.5 million views, a black trans queer man named Tiq Milan, and Kim Katrin Milan, a black queer cisgender woman, share the story of their whirlwind “courtship” and marriage.25 One of the most striking things about this talk is its almost dizzying deployment of queer theory ideas and arguments to make a case for embracing the “institutions and traditions” of civil marriage, a wedding ceremony, monogamy, adopting and raising a family.26 Because “God was never supposed to bless a union for folks like us, and the law was never supposed to recognize it,” Tiq Milan says, “sprinting towards” his wife’s “hand in marriage was the queerest thing that I could do.” 27 Because the “gift of queerness is options,” Kim Milan tells the audience, “it was incredibly freeing” for her, “my father’s bastard child,” to be able to “choose the name of a man who chose me first.” 28 The Milans met and fell in love during a 3,000-message, 72- hour-long Facebook conversation, and so “fittingly,” they shared “all of our wedding photos on Facebook . . . and Instagram, of course.” 29

And we quickly realized that our coming together was more than just a union of two people, but was a model of possibility for the millions of LGBTQ folks who have been sold this lie that family and matrimony is antithetical to who they are —for those of us who rarely get to see ourselves reflected in love and happiness.30

Later in their presentation, Tiq Milan characterizes the “possibility that we are practicing” in even more expansive terms.31 The Milans understand their queer marriage, and the queerness which is their “major key,” as experiments, without “any blueprints,” for “reinventing time, love and institutions.” 32

We are creating a future of multiplicity. We are expanding the spectrum of gender and sexuality, imagining ourselves into existence, imagining a world where gender is selfdetermined and not imposed, and where who we are is a kaleidoscope of possibility without the narrow-minded limitations masquerading as science or justice.

Kim and Tiq Milan performatively enact a marital relationship which “has always been about setting each other free.” 34 As they tell it, this practice of reciprocal freedom is animated by a queerness that is “fluidity and limitlessness all at once,” that claims “a freedom too strange to be conquered.” 35 In the Milans’ queer vision of love and marriage, their relationship is nothing less than a “tool of revolutionary change.” 36

Obviously, Tiq and Kim Milan’s queer paean to conjugal freedom offers an answer to the question “Why marriage?” 37 that is diametrically opposed to Katherine Franke’s “progressive queer” elegy on the limits and unfreedom of wedlock.38 I am less interested here in the very different uses to which Wedlocked and “A Queer Vision of Love and Marriage” put the language of queer theory than I am in the degree to which Franke’s queer case against, and the Milans’ queer case for, gay marriage may be said to inhabit the same or at least overlapping “logical space.” 39 Although Franke and the Milans come down on radically different sides of the queer marriage debate, they are united in a common preoccupation with the meaning of marriage to and for the “subjects” of marital rights. Kim and Tiq Milan celebrate the legal right to marry as a terrain of possibility in which people who have been “marginalized because of our identities” can find and live “their authentic selves.” 40 Katherine Franke reminds us that legal marriage rights, like all rights, entrench, regulate, channel, constrain and stabilize identity and “produce the subject they pretend only to presuppose.” 41 The subjugation of rights in marriage law threatens to “lock us into roles, responsibilities and limitations from which it is very hard to break free.” 42

Despite their differences and disagreements, however, both these “queer”- influenced accounts and the shared preoccupation with the “subjective side” (the “we,” “us,” “you” or “I”) of marriage rights show an unqueer and uncritical lack of deep interest in, or engagement with, what the modern story of civil marriage, marriage equality and the right to legally marry tells us about the question of power.

Why power? I began this discussion by suggesting that the queerness of queer legal theory derives in part from a recognition that it is a socially and institutionally situated practice. This situated mindfulness of the myriad ways in which legal scholarship is not only connected to, but also continuous with, law and “all the apparatuses, institutions, and rules that apply it,” 43 is also a hallmark of “critically queer” legal-theoretical practice. One of the insights which makes critical queer legal studies critical in the sense that interests me here, however, is the recognition that the field of legal practices in which queer legal theory work takes place is not just an intellectual but a political domain; what this means, specifically, is that no truly critical analysis of law is possible that fails to reckon with and provide an account of the “economy of power relations” to which legal theory and legal practice belong.44

Further, critical queer legal theory can think reflexively about its status as a way to study law and legal power, and a locus of the very normative and performative power that is its object of study. We can measure the distance between critical and non-critical uses of queer legal theory by looking at whether and how a given queer legal analysis “works” (as they say in house ball culture), and works with its own implication in the nexus of force relations and “power-knowledge.” 45 Because it understands that “nothing more than a dash or a hyphen keeps power and knowledge apart,” 46 critical queer legal studies acknowledges, accepts and performatively leverages the political conditions and constituent components of the mixed modal analysis that I have been calling “theory-practice” as an interpretive framework for understanding how legal power is exercised in and through the production of legal knowledges. Deepening and extending queer theory’s destabilizing interrogations of binary thinking about heterosexuality and homosexuality, maleness and femaleness, masculinity and femininity, sexual acts and sexual identities, or normative and nonnormative sexualities, critical queer legal studies resists the disciplinary division of labor between legal theory and legal practice, insisting that only a critical articulation of theorypractice can provide an adequate framework for understanding legal power-knowledge relations in the modern era.

Where, then, might a “critically queer” account of the techniques and forms and relations of “conjugal power” in U.S. marriage law start? As a threshold matter, answering this question will almost certainly require a shift in focus from the issues of identity and subjectivity to which I called attention in my discussion of Wedlocked and “A Queer Vision of Love and Marriage.” As Bruno Perreau has recently argued in his Queer Theory: The French Response, queer theorists have “revitalized the way that subjectification is conceptualized.” 47 Queer theory has provided a language and lens for analyzing the cracks between and noncoincidence of “sexual categories and behaviors,” the convergent, colliding, contradictory practices of “identification and deidentification,” and the complex choreographies through which “subjects constitute themselves.48 Nonetheless, concludes Perreau—and I concur— a queer theoretical practice that centers only on questions of identity, subjectivity and its performativities will eventually hit an analytic brick wall “if it fails to pay attention to the role of institutions.” 49

The call for critical queer analyses beyond the subjectification paradigm is not a call to abandon the investigation of gender and sexual identities. Rather, it’s a plea to attend to the emergence, or better yet, the institution of those identities in and through government and the art of governing. Foucault describes “government” in this sense broadly as a “conduct of conduct.” 50 The term refers to all the modes and techniques of power or the “ensemble of actions” 51 by which actors, including state actors, “structure the possible field of action of others” 52 through “acts upon their actions.” 53 The analysis of a society’s power relations cannot “be reduced to the study of a series of institutions,” 54 including the all too often reified and fetishized power of “the state,” or as Foucault put it, “the set of institutions we call the state.” 55 Accordingly, a queer legal critique approaches “the state” as “nothing more than a way of governing” or “type of governmentality” that sits alongside many other institutions, apparatuses and rules tasked with applying the law.5