Reviewed by Isaac West, Department of Communication Studies, University of Iowa. Email: isaac-west [at] uiowa.edu.
The recent legal victory securing civil marriage equality in Iowa, VARNUM v. BRIEN (2009), signals a decisive shift in the terms of this cultural debate about the acceptability of kinship units positioned outside of heteronormative logics. The ushering of legally-recognized same-sex marriages into the heartland by a unanimous court literally altered the terrain of the so-called “culture wars” from the coasts to the Midwest. More than a shift on the spatial front, VARNUM, in a decision written clearly for lay audiences to digest, supplied rhetorical reinforcements to lesbian, gay, bisexual, and transgender (lgbt) advocates with clear legal reasoning about the elasticity of equality, the changing definitions of families, and the need for more expansive regimes of legal recognition to accommodate queer couplings. Whether or not a direct result of VARNUM, a number of states have extended, or are considering extending, civil marriage rights and civil unions to lgbts. Thus, in many ways, the future looks bright for lgbts who desire the legal recognition of their relationships. Yet, in spite of these impressive gains in such a short period of time, this march toward full and complete equality will be a long one requiring extensive litigation and lobbying, and, in the interim, lgbt parents and guardians will rely on other legal arrangements to protect their parental/guardian rights. Kimberly Richman’s exemplary scholarship reminds us of the incremental gains made by queer advocates and just how much work we have left in front of us.
COURTING CHANGE turns conventional legal wisdom on its head in its defense of legal indeterminacy as a potentially productive site from which lgbt litigants might gain legal victories. In contrast to orthodox critical legal studies that focus on the detrimental effects of legal indeterminacy, Richman privileges those moments when legal advocates and judges have found ways to expand family law to make it more inclusive and responsive to lgbt needs. Writing within the constitutive tradition of sociolegal studies, one more receptive to and hopeful about the interpenetration of law and culture than critical legal studies, Richman alerts us to the complex cultural flows underwriting both judicial reasoning processes and dynamic understandings of families. In this vein, Richman makes a compelling case for studying both the law and larger cultural formations to understand better how each influences the other within particular cultural milieu. Absent the unrealistic wholesale restructuring of our liberal-democratic legal regimes, Richman rightly notes, equality’s promise requires that we must learn how to maneuver within these prevalent legal [*300] logics while also working to expand cultural understandings of families.
Of course, family law, by design and in practice, is one of the most localized and fragmented fields of law, which presents numerous obstacles for lgbts. With few explicit statutory guidelines, Richman acknowledges with extended examples instances in which judges have used the double-edged word of indeterminacy against the interests of lgbt parents and guardians. Richman assembles an impressive archive including every appellate court decision involving an actual or perceived lgbt litigant in a child custody, visitation, or adoption case since 1952, interviews with legal advocates and judges associated with this area of law and some of the cases analyzed, and even a few of the litigants themselves are interviewed to supply their understanding of the law. With this historical context and the explanation of contemporary cases, Richman optimistically forecasts greater inclusion and legal tolerance, if not eventual acceptance, of lgbt litigants, and this argument unfolds logically and clearly, making it appropriate for audiences spanning from lay audiences to undergraduates and graduates students.
One of the most impressive accomplishments is the way that Richman bridges and translates distinct yet cognate fields such as law, sociology, and lgbt/queer studies. The second chapter provides sufficient background and context for the different audiences imagined by this book. For example, Richman provides legal scholars unfamiliar with kinship studies, such as Kath Weston’s FAMILIES WE CHOOSE, with a concise review of how lgbt contestation of heteronuclear normativities has altered the commonsensical understanding of families. For those less familiar with the legal landscape informing this area of case law, Richman succinctly reviews landmark cases and general family law principles to frame her arguments. Richman’s synopses of these different discursive communities and her integration of them into a coherent lens of analysis is an instructive example of how to study law and culture.
The benefits of this kind of interdisciplinary work are evident in the third chapter in its consideration of the legal negotiation of identity, particularly categories such as “parent,” “family,” and “homosexual.” The use of all of Richman’s available resources, including legal decisions and interviews with interested parties, gives her unique insight into the agonistic mediation of these seemingly obvious identity descriptors when they are mobilized within and outside of legal contexts. There are numerous examples of legal restrictions placed upon parents who were penalized for being too gay, too dangerous for their child’s psychological development, or too selfish for pursuing a life outside of the closet. There are even examples of parents who lost their full parental rights because of suspicion about their sexual identity. However, Richman also presents substantial evidence of instances where lgbt litigants successfully challenged narrow conceptions of “family” to make allowance for lgbt parents. Upon review of the totality of these cases, Richman presents both statistical and narrative examples about the liberal progression of this area of case law. This is not to suggest that Richman reads these trends as uninterrupted or even progressions, but the overall trend appears headed for greater legal acceptance of lgbt parenting and guardianship. [*301]
In further support of Richman’s arguments about the malleability of legal identities, chapter four tackles one of the most important issues of critical legal studies, namely the problems associated with the invocation of rights and the individuating effectivities of these claims. While rights claims implicate lgbts in liberal narratives and hegemonic formations beyond their control and sometimes hostile to their lived lives, Richman argues for an alternative conception of how rights claims work within the realm of family law. When lgbt litigants articulate themselves as worthy of legal recognition and protection, Richman suggests, they demand rights to familial and relational bonds, thus ameliorating concerns about the entrenchment of liberally-duped legal subjects. That is, when individuals claim parental and guardian status, they occupy a more complex subject position than an individual asking for legal respect when they announce themselves as responsible for others and valuable in the lives of their children. These enunciated relationalities stipulate obligations and responsibilities beyond the respect and governmental non-interference afforded by the right to privacy or the right to bear arms. For those who might want a queerer reading of the law, meaning that they would want to critique the potential heteronormativity implicit with claims to equal parental/guardian rights, Richman implicitly addresses these concerns by exposing the potential to queer the law while working within its parameters. A more pragmatic view than a radical one, nonetheless, this chapter complicates overly simplistic calls to reject or trash the law in its explication of how individuals can tactically employ the law to unintended and unimagined ends.
Richman’s emphasis on the dialectical nature of the law spills over into the next chapter when she analyzes judicial dissents and how they influence majority opinions and produce resources that might benefit future litigants. The initial framing of the chapter, one which situates judicial dissents as similar to studies of legal resistance in everyday life, is a little strained, but the rest of the chapter deftly translates legal decisions for lay audiences and soundly defends its thesis. Less theoretically situated than previous chapters, the analysis of the selected judicial dissents nevertheless provides fascinating readings of how legal practitioners influence each other in a give and take that opens the door for social change. The range of cases is representative of the complex issues associated with lgbt parental/guardian claims, and, as a result, may be of most interest to those readers concerned with the pragmatic practice and consequences of this area of case law.
The concluding chapter neatly summarizes and draws out the implications of Richman’s provocative claims about the utility (and pitfalls) of legal indeterminacy. The most interesting part of this discussion puts family and custodial law in conversation with decisions legalizing same-sex civil unions or marriage. Here Richman addresses the debate about judicial activism and how progressive justices, often tarred with the label “activist judges,” are one of the best hopes for lgbt parents/guardians. Acknowledging the potential for judges to use indeterminacy against the best interest of lgbt litigants and their children, Richman stresses the potential benefits of legal activism, reminding us that there may be little to no choice in the matter. As long as individual judges retain wide latitude [*302] to render their decisions, Richman sees these situations as generative opportunities for lgbt-affirming litigation. Undoubtedly, this road to social change is a rocky, if not an unpredictable, one – the indeterminacy of the law cannot guarantee in advance progressive interpretations of the law. Yet, as Richman concludes, this is the system in which queer parents/guardians must work.
Again, COURTING CHANGE can and should be read by a wide audience. Richman’s extensive archive and innovative approach supplies an instructive guide to how scholars can integrate various approaches to the law to influence judges, legal advocates, and other interested parties. And as we approach a potential tipping point in this larger cultural debate about the rights and privileges of lgbt citizens, this type of engaged intellectual labor and the lessons learned from it deserve our respect and engagement, be it in the courtroom, classroom, or our everyday lives.
Weston, Kath. 1991. FAMILIES WE CHOOSE: LESBIANS, GAYS, KINSHIP. New York: New York University Press.
VARNUM v. BRIEN, No. 07-1499 (Ia. Sup. Ct. April 3, 2009).
© Copyright 2009 by the author, Isaac West.