Queer Legal History: A Field Grows Up and Comes Out

Abstract

This essay examines recent scholarship on the legal history of sexuality in the United States. It focuses on Margot Canaday's The Straight State: Sexuality and Citizenship in Modern America (2009) and Marc Stein's Sexual Injustice: Supreme Court Decisions from Griswold to Roe (2010). It also reviews recent work on the history of marriage, including Sarah Barringer Gordon's The Spirit of the Law: Religious Voices and the Constitution in Modern America (2010) and George Chauncey's Why Marriage? The History Shaping Today's Debate Over Gay Equality (2004), and the history of military law Defending America: Military Culture and the Cold‐War Court Martial (2005), by Elizabeth Lutes Hillman. The essay argues that this scholarship is significant because it offers a different view of sex and power than the one derived from the early writing of Michel Foucault. “Queer legal history” treats the liberalism of the 1960s‐1970s as sexually discriminatory as well as liberatory. It underlines the exclusions that were part of public policy under the federal G.I. Bill and the New Deal welfare state.

Legal identities and the in-between rules

“…A variety of American state institutions have relied upon heterosexuality and family to define the polity, and at times these structures have provided opportunities for change (Kornbluh 2011a;Strach 2004). Birth certificates became records of responsibility rather than records of biology in the early twentieth century.…”

Review of Legal History

“…For example, it should be no surprise that contemporaneous with post-Stonewall activism has come an increased interest and awareness of queer legal history (see e.g. Bartlett, 1997; Kornbluh, 2011; Pearlston, 2017; Waites, 2002). The point is not to denigrate such work as opportunistic, merely to illustrate that which legal histories are even possible depends on the contexts their authors find themselves in and will be linked, implicitly or subconsciously, to broader trends.…”

Does sexual fluidity challenge sexual binaries? The case of bisexual immigrants from 1967–2012

“…In the past two decades, we have witnessed a slow reversal in the scholarship of legal sociology that previously excluded non-heterosexuals to a burgeoning subfield, called ‘queer legal history’ that places heteronormativity at the center of legal critique (Kornbluh, 2011). Consequently, we have a better understanding of how heteronormativity is instantiated by the state through its institutions such as marriage, immigration, criminal law and others (Canaday, 2009; Eskridge Jr. and Hunter, 2011; Eskridge Jr., 1999; Hull, 2006; Luibheid, 2002; Stein, 2010).…”