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Constitutionality of Recent SCOTUS Decisions — DOMA and Voting Rights

In Instinct for Research, LGBT, Politics, Uncategorized on July 25, 2013 at 12:00 am

Neon Supreme Court

by Matthew Nelson

(This article originally appeared on As It Ought To Be)

The Supreme Court has been getting a lot of attention lately. With the deluge of end-of-term decisions over, it seems everyone is taking turns surveying the damage. But while most commentators ask “helping-or-hurting” questions – How big of a setback was the Prop 8 ruling for marriage traditionalists? Did racism win the day at the University of Texas? – I want to draw attention to a different set of questions raised by two of the year’s biggest decisions. These decisions, on gay marriage and voting rights respectively, offer an excellent opportunity to revisit our government’s famed system of “checks and balances” and ask just what we expect the various branches to do to get along.

In United States v. Windsor, the Court struck down a provision of the Defense of Marriage Act (DOMA) that prevented even already-married same-sex couples from receiving the benefits of a federally acknowledged marriage. It did so because it found that the law violated the so-called “due process clause” of the Fifth Amendment.  So far, so good – this much accords well with our ordinary conception of how the federal government works – the legislature enacts laws, and the judiciary reviews their constitutionality. But in order to get to a place where they could even rule on DOMA’s constitutionality, the Court first had to answer a strange procedural question – was there even a real case to decide?

The problem was that the two sides seemed to agree on the correct ruling. Both the plaintiff, Edith Windsor, and the defendant, the U.S. Government (as represented by its Executive Branch), agreed that the law was unconstitutional. Accordingly, Ms. Windsor ought to be entitled to a refund of more than $350,000 in taxes that she was forced to pay on the estate of her deceased spouse, Thea Spyer, because under DOMA her same-sex marriage did not qualify her for surviving-spouse tax exemption. This led Justice Scalia, in oral arguments, to ask why the case had made it to the Supreme Court at all. What made it different from a debt-related lawsuit where the debtor agrees he owes money but just refuses to pay? In that case, there is no case – the debtor owes the money, no questions asked.

But the Executive Branch disagreed…kind of. Although they refused to defend DOMA’s constitutionality, they insisted on enforcing it and requested that the Court continue with the case as if everything were normal. However, because the Executive refused to defend the law, the Bipartisan Legal Advisory Group from the House of Representatives had to step in instead. Their representative, Paul Clement, pointed out that this convoluted scheme had already led at the District Court level to “the most anomalous motion to dismiss in the history of litigation: A motion to dismiss, filed by the United States, asking the district court not to dismiss the case.” Justice Kennedy noted that that is enough to “give you intellectual whiplash.” Indeed.

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The Mother as The Child’s First Bully

In Uncategorized on February 13, 2013 at 8:20 pm
Marx Ernst, 'La Vierge corrigeant l'Enfant Jésus devant trois témoins: André Breton, Paul Eluard et le peintre,' 1926

Marx Ernst, La Vierge corrigeant l’Enfant Jésus devant trois témoins: André Breton, Paul Eluard et le peintre, 1926

by Diego Costa

When my sister got pregnant with her first child and was able to see what sex it was going to be assigned (that irreparable death sentence that the ultrasound enacts), she immediately knew what she would name him: Gael. She associated the name with the devil-may-care coolness of harmonica-playing boys who manage to be tough and sweet, masculine and sensitive. Mexican actor Gael Garcia Bernal served as the perfect manifestation for the kind of boy she hoped her son would be. He was intellectual without being arrogant, manly without being brutish. Unfortunately, as she spread the name choice to everyone around her, strangers were taken aback by Gael. Doesn’t it sound like gal? Or even…gay? From Facebook comments to random women getting their manis and pedis at her local salon, folks went on about how strange, and literally queer, Gael sounded. My sister was thus bullied into re-thinking the naming of her son in order to avoid that this child who hadn’t even been born yet would be bullied because of his unconventional name. Pre-natal bullying, you may call it. He was being bullied as he was being gendered. He was being bullied into gender.

My sister decided to give up on Gael and re-name him something more normativity-friendly. For ethical reasons, I won’t say which name, but the point is that little does it matter. While Gael marks difference and rupture, Brian, Michael, or Ben offers continuity and maintenance. They leave things as they are, granting us the same cozy illusion of inevitability that the direct relationship between genitals and gender that we insist on can offer us. As the-child-formerly-known-as-Gael became, say, Ben, I can’t help but think of it as his first major castration episode. The first of a series of regulatory events that will certainly come in due time to keep him in line, to think twice before daring to venture outside the prescribed path of sameness under the “law.” Before language, before catching sight of the (“lack of”) female genitals, before letting out a cry– he has been silenced. Some fundamental protuberance that may have grown out of his singularity has been smoothed over, patched up like an irksome porthole (don’t holes tend to elicit so much anxiety?) out of which something disturbing is sure to emerge. An openness has been sealed, something has been maimed.

The Mother’s first encounter with the normativity-demanding Other could have become the stage for a symbolic intervention on her part. She could have staked a claim, she could have denied the Other’s entrance, she could have preserved the naming of her child as an intimacy between parent and child, without chiseling the baby into one that fits comfortably (for a price) in the world. Instead, she allowed her position of power, the unparalleled power of naming (and a quite violent one as is), to be contaminated by the anti-queer pre-natal police, transforming her motherhood into a function of the hetero-normative State. Here the Mother becomes not only an agent of bullying under the guise of preventing bullying, but a depersonalized baby-making machine in the service of a utopian hygenized society that is queerness-free. A society that is queer-free before queerness can even begin to manifest itself before our eyes. Like Down syndrome fetuses, which thanks to cutting edge technology, can now be spared from their birth so that we can be spared from their sight.

This has nothing to do with mothers individually or my sister’s excellence or lack thereof as a mother. I admire her as a person in the world and do not doubt her maternal love. This has to do with the Mother as function, the position of the Mother and the labor she is asked to do within the gendering economy. Under the spell of the hetero-normativity promises of an unscathed member of society, the Mother with a capital M is ironically the first to injure her baby by giving it up on a properly labeled platter to those who will actually decide if we will keep him or chuck him. Wasn’t it Eve Sedgwick who claimed that in our society the good homosexual was either the masculine homosexual or the dead one?  In order to assuage anxieties about an imagined future violence enacted by others, the Mother ironically wounds the child preemptively, robbing him of the opportunity to begin life from an authentic position. She teaches him how to lay low and pass before he gets a chance to gage his attraction to whatever it is he is passing for.

French essayist Roland Jacquard once said that bringing a child into the world is already abusing him. American culture does an excellent job bringing the violence of bullying to the headlines in a kind of masturbatory panic. It interpelates its celebrities to plead for tolerance, it creates task forces, it broadcasts TV specials, it puts bullying on display to be spoken about, judged and condemned ad nauseam. It’s like it brings us the sadistic high that the act of bullying begets but in a roundabout way that relieves us from the guilt. Yet, America administers this enjoyment mostly through finding bounded human entities to blame for it — which is the same strategy any kind of panic, fueled by claims of tolerance or hatred, tends to follow (the slut, the Jew, the black man, the homosexual, the illegal immigrant, the sex predator, the barebacker, take your pick). Someone is to blame, which leaves the social and symbolic structures (of which we are authors) conveniently unexamined. Read the rest of this entry »

“No, Psychoanalysis is Not Against Gay Marriage” or How Psychoanalysis Supports Queer Inquiry

In Uncategorized on February 6, 2013 at 10:35 pm

Lacan rainbow

by Chase Dimock

As I write, the French parliament is embroiled in a protracted debate over President François Hollande’s push to legalize gay marriage and adoption in France. The controversy regarding the bill has swept through French society and the regular cast of conservative political and cultural interests such as the Catholic Church and the xenophobic right-wing parties has emerged in demonstrations against it. Yet, one unlikely voice of support for the bill came out last month as Jacques-Alain Miller, representing the psychoanalytic community, authored an op-ed in Le Point titled, “Non, la psychanalyse n’est pas contre le mariage gay”. I say this is “unlikely” not because it would be unexpected for a psychoanalyst to support lgbt rights, but because it is uncommon for psychoanalysis to weigh in on current political issues. In this article, Miller (who is Jacques Lacan’s son-in-law and one of the most widely published analysts still active today) does not come out in explicit support of gay marriage, but instead lambastes the conservatives who have misrepresented and instrumentalized psychoanalytic research and theory in their campaign against gay marriage. As Miller promulgates, “we Psychoanalysts are obligated to declare that nothing in the Freudian experience will validate an anthropology that is authorized by the first chapter of Genesis.” (my translation)

While it is important in the context of the gay marriage debate for scholars to publicly dismantle the pseudo-scientific and unfounded sociological claims made by conservative interests, I find that Miller’s short, five paragraph article also makes a profound, if unintended, argument for how the basic concepts of psychoanalysis are congruent with research in Queer Theory. Miller’s article comes out against the abuses and misinterpretations of psychoanalytic concepts and practices that led the ill-informed to pathologize or inject moral approbation against homosexuality based on poor readings of Freud, Lacan, and other luminaries of psychoanalysis. Miller makes a bold statement against any kind of normative moralizing and instead stresses the fluidity of gender, sex, and desire as a guiding feature of psychoanalytic practice and research. The article serves a double purpose of both defending against socially regressive misuses of psychoanalysis and clarifying the basic concepts and practices for queer scholars and activists who have been mislead by pop-psychology or misinformed critics. Here, I have translated key elements of Miller’s text for an English-speaking audience because I believe his points brilliantly illustrate how psychoanalysis has granted me and other scholars of Queer Theory illuminating language and discourse for the  study of queer identity and desire.

In his third paragraph, Miller explains that the gendered language of Freudian and Lacanian psychoanalysis is metaphorical and not meant to cement specific gender roles based on sex:

If Jacques Lacan gave the Oedipal structure the form of a “paternal metaphor” involving the “Name of the Father”, the “desire of the mother”, and the phallus, this formalization was not meant to be an anthropological invariant. Its advances have led, on the contrary, to pluralize the function of name of the Father, then to relativize it, and finally turn it into a “sinthome” (an ancient form of the word “symptom”).

Regarding the gay marriage debate, Miller corrects those that would simplify the paternal metaphor of the oedpial structure and see it as evidence that a child must specifically have a heteronormative family with a female mother and a male father. Historically, this oversimplification of the oedipal structure has led some to assume that a “normal” family will produce “normal” children and that any disruption in the nuclear family dynamic would cause psychological damage. For example, in the 50s and 60s, some American psychologists performing studies under the name of “psychoanalysis” argued that an overbearing mother and a distant father (or sometimes an overly affectionate father) would lead to homosexuality. Miller dispels this notion, asserting that the terms “father” and “mother” in this usage are metaphorical and not tied to a specific gender or familial structure.

The Name of the Father does not correspond exclusively to the male, biological father of the child, but it can instead apply to any person or entity of any sex that has a position of authority over the subject and functions as the one that acculturates the child into acceptable behavior in society and regulates desire. The phallus has no correspondence to the anatomical penis, but it instead signifies a position of agency in the subject’s life, which is fluid, contextual, and can be held by (or simply be) anyone. For Miller, the job of the analyst is to pluralize and relativize the Name of the Father, meaning that they must help the subject understand who or what has that position of authority and what impact casting that entity as the law giver has on their pursuit of desire. Read the rest of this entry »

Why Don’t You Come Up Sometime and Queer Me?: Reclaiming Mae West as Author and Sexual Philosopher

In Feminism, Foucault, Freud, Gender Studies, LGBT, Literature, Masquerade, Performativity, Politics, Queer Theory, Transvestite Souls, Uncategorized on November 5, 2012 at 11:57 pm

  by Chase Dimock

  

We know Mae West as an actress, a sex symbol, a cultural icon, a comedienne, a master of the one liner and the double entendre. What we don’t think of Mae West as is an author. It has been largely forgotten that Mae West got her start on stage, in a series of salacious plays she wrote for herself in the late 20s. West was by then a veteran of the Vaudeville circuit appearing mostly chorus line gigs and bit parts. But when she grew tired of waiting for the right part and her big break to come around, she decided to write her own roles. With early plays such as “Sex” and “Diamond Lil”, West invented the vamp persona that defined her career over the next five decades. If we think of Mae West as playwright and an author that wrote the character that she ultimately became, then we can view her iconography as its own meticulously plotted text and her careful crafting of figure and image as a finely formulated semiotics of the body. If we think of Mae West as an author, then her pithy one-liners and double entendres transcend the ephemera of comic relief and reveal her as one of the most astute observers of sexual and gender politics of the modernist era. If we think of Mae West as an author, a quote like “I’m no model lady. A model’s just an imitation of the real thing”, becomes an insight into gender performativity. Her quote “Marriage is a fine institution, but I’m not ready for an institution”, becomes a critique of the state’s power to enforce heteronormativity through marriage. And finally her quote “If I asked for a cup of coffee, someone would search for the double meaning” becomes a post-modernist play on the endless veils of irony and metaphor that obscure and inflate every day speech. It is this Mae West as author and sexual philosopher who put her text into her curves, that I want to recover and illuminate.

While West marketed herself as an object of heterosexual desire, she not only understood her appeal to a gay audience, but she also engaged with the newly emerging gay community in her plays. Thus, I want to also think about Mae West as queer theorist—as an interpreter of queer sexuality who saw the newly visible figure of the homosexual in society as a product of power relations—a figure determined by the interplay of institutional powers, medicine and the law, and his own creative power to define himself. For this, I turn to her 1927 play, “The Drag”, a text centered on the question of the male homosexual’s position in society. Unlike her previous play, “Sex”, which launched her into notoriety and stardom on Broadway, “The Drag” was not a vehicle for self-promotion as an actress. Mae West did not write a role for herself. Instead, “The Drag” sought to cash in on what contemporary scholars have called “The Pansy Craze”, a period in the 1920s when female impersonators appeared in mainstream stage shows and the Jazz age youth went slumming at gay bars and drag balls. The “pansy”, often known as the “fairy”, was a figure that created gender confusion; a male that interwove signifiers of masculinity and femininity on his body. He paraded feminine mannerisms, walked in high heels with a swish, and even used feminine pronouns, but he was not a trans-woman. The fairy became the dominant image of what was termed the “invert”, before “gay” hit wide usage two decades later; a biological male with the soul of a woman on the inside.

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A Brief Chronicle of the Long Life of a Nobody

In Art, Gender Studies, LGBT, Literature, Mythology, Poetry, Uncategorized on May 29, 2012 at 11:30 am

by Jim Elledge

Internationally-recognized, self-taught artist Henry Darger lived in utter poverty his entire life. Not long after he was born in Chicago (April 12, 1892), his impoverished parents moved out of the respectable, blue-collar neighborhood in which they had lived for several years into a coach-house apartment behind 165 West Adams just west of the Loop. That address was at the threshold of Chicago’s most notorious vice district, called West Madison Street after its chief thoroughfare.

Henry’s father went into a tailspin after a string of tragedies blind-sided him. His second son, Arthur, born a year and a half after Henry, died when he was only five months old, and then his wife Rosa died giving birth to their third child, a daughter. Almost sixty years old, too old (he felt) to be taking care of both an infant and a toddler, he immediately put his daughter up for adoption. The loss of his wife and children was too much for him, and he abandoned himself to drink and Henry to the dark streets—and even darker denizens—of West Madison Street.

Henry’s experiences during his earliest days in the vice district were, in a word, horrific as his autobiography, The History of My Life, reveals. He purposely knocked down children younger than he; sliced his teacher’s face and arms with a knife he carried when she punished him for an infraction; flung ashes into the eyes of a little neighborhood girl; committed arson to get even with a neighbor man; was nearly kidnapped by a homeless man; had a relationship with a night watchman; and was removed from his father’s house by authorities who institutionalized him in Dunning among the insane, indigent, and mentally ill—all before he was eight years old. Henry’s anger, violent behavior, and early sexual activities are symptomatic of child sexual abuse. Small for his age, Henry was an easy target.

In 1900, embarrassed by his eight-year-old son’s conduct and unable to cope with him, Henry’s father pawned the boy off on the priests who ran the Mission of Our Lady of Mercy, where he would live for the next four years. After more behavioral problems, which included being involved sexually with at least three other boys at the Mission, the priests told Henry’s father that Henry had to go. By then, his father was living in St. Augustine’s Home for the Aged, had no money with which to help his son, and had no room to take him in. Instead, he contacted a doctor, told him that Henry had been masturbating since he was six years old (another symptom of sexual abuse), and asked him to examine the boy. After meeting with Henry on two separate occasions, Dr. Otto Schmidt helped Henry’s father to fill out the form that would allow them to exile the now twelve-year-old to the Illinois Asylum for Feeble-Minded Children in Lincoln, IL. On Thanksgiving Day 1904, Tim Rooney took Henry by train to the Asylum.

Institutionalizing children for “self-abuse” (the term that was most often used for masturbation) was entirely legal and ubiquitous at the time. Physicians across the country supported institutionalization, and some even went so far as to recommend castration. Henry wasn’t the only boy sent to the Asylum for self-abuse. In fact, four other boys—three, twelve, thirteen, and nineteen years old—were admitted within of a month of the day when Henry arrived, each because of self-abuse.

As it turned out, the Asylum was a hellhole. While attendants had many techniques that they used to control the boys in their care, they were fond of strangling boys until they were close to blacking out, their tongues protruding and their faces turning blue. In such a condition, the boys were unable or unwilling to resist whatever the adult had in mind for them. At the same time, the prisons in Illinois had been filled to capacity, and the courts decided to send the overflow of male criminals to live—and sleep—among the boys at the Asylum. The smaller, weaker boys were at the mercy of the larger, stronger boys and men in the beds beside them.

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Growing Up Gay and Amish in America

In LGBT, Literature, Polymorphous Perversity, Queer Theory, Uncategorized on April 17, 2012 at 8:41 am
by James Schwartz

Leaving the Old Order Amish community equals leaving everyone and everything you know. Any Amish that identify as gay, lesbian, bisexual or gender questioning will be met with condemnation and  Scriptures (Leviticus, always a classic).

They will not be handed a complimentary copy of ‘Christianity, Social Tolerance and Homosexuality’ by John Boswell.

Where traditions and heritage run deep there is little choice but leave or live a lie.

Most Amish are of German descent but we are of Swiss stock, my Mom passing when I am 9, thus my upbringing with my father, a model of Swiss tolerance.

I don’t join the church and will not go back.

I go clubbing in Indiana and Michigan.

At 22 I step onstage, making my drag debut at Brothers Beta Club (Kalamazoo, MI) Closet Ball pageant and perform at The Zoo Bar.

I would exchange the cabaret for the poetry slam circuit in my mid 20s and seriously began writing with stars in my eyes.

The Literary Party: Growing Up Gay and Amish in America collects my poetry, writings from 2005-2010 with a few early poems.

THE BEGINNING

 The black garbed men cluster by the shed

 As the morning sun burns mists away

 The unharnassed horses away are led

 To the barns stuffed with hay

 The men kiss in the Spirit of the Lord

 As Christ once kissed his band

 Across the green a rushing stream

 Serenades the countryland

 Only the brethren greet with a kiss

 I am but a child yet know

 What today I am to miss

 And how far I have to go

 To find redemption at the border

 Of new beginnings and the Old Order.

 

INDIANA 2 AM

I was such a queer thing.

Even growing up.

Sexuality is not a choice.

Listen to my femme voice.

Even throwing up…

I was such a disco boy.

Spinning through school.

Twirling in my first disco.

The Seahorse Cabaret 2.

Indiana 2 a.m.

He stares at me and smiles…

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