Alan Stanley
Wed, 11/03/2021 - 07:12
Edited Text
A CRITICAL EXAMINATION OF UNITED STATES V. WINDSOR:
RETHINKING VICTORY, NORMALCY, AND ASSIMILATION

by
Sean Patrick Mulloy
A thesis submitted in partial fulfillment of the requirements
for graduation with Honors in Politics.

Whitman College
2014

Certificate of Approval
This is to certify that the accompanying thesis by Sean Patrick Mulloy has been accepted
in partial fulfillment of the requirements for graduation with Honors in Politics.

________________________
Jack Jackson

Whitman College
May 14, 2014

ii

Contents
Contents .......................................................................................................................................... iii
Acknowledgments........................................................................................................................... iv
Introduction ..................................................................................................................................... 1
Section 1: Assimilation or Liberation? Divergent Political Movements........................................... 4
Section 2: Windsor within the Gay Marriage Movement .............................................................. 12
Securing Economic Privilege in Contemporary Capitalism ........................................................ 14
Normalizing Queer Identity ....................................................................................................... 16
An Institution of Patriarchy and Racism .................................................................................... 21
Moving Beyond Marriage, Shifting the Political Agenda ........................................................... 23
Section 3: The Legal Reasoning of Windsor ................................................................................... 25
Federalism .................................................................................................................................. 27
Due Process and Equal Protection ............................................................................................. 30
An Alternative to Affirming the Privileges of Marriage ............................................................. 34
Conclusion ...................................................................................................................................... 36
References ..................................................................................................................................... 39

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Acknowledgments
First and foremost, I cannot express enough gratitude to Professor Jack Jackson for his
tremendous mentorship and support, as well as for being an intellectual resource
throughout my entire thesis writing process. This project would not be possible without
the scholarly contributions you and others have made to the study of feminist and queer
legal theory. Likewise, I am very grateful to Melisa Casumbal for your support and
thoughtful commentary during the fall discussion of my prospectus and for your ongoing
participation in my intellectual pursuits.
My completion of this project would also not be possible without the amazing professors
I have had at Whitman. I want to thank Susanne Beechey who helped to establish the
foundations of my understanding of queer politics and social justice and who has
provided my great personal support over the years. To Kristy King, Matt deTar, and
Drew Walker: I have greatly grown personally and academically because of your
teaching. As well as to Melissa Wilcox, who ignited my interest in gender studies and
queer theory at the very beginning of my time at Whitman.
I am likewise immensely grateful to Jane Carmody: you have been instrumental in
helping me advance my thoughts about feminism and I am grateful to have had the
opportunity to work with you during the editing process. I also thank Zoë Erb for putting
up with me in the library and for continuing to brighten my day during the long writing
process. Finally, thank you to Marga DeJong, Molly Dubrovsky, and Madelyn Peterson; I
have greatly enjoyed the casual intellectual conversations we have had over the years and
I am constantly blessed to learn so much from all of you amazing women. I am also
grateful to everyone in the Whitman debate community for your continued support
throughout my time at Whitman.
Last, but not least, I would like to thank my parents, who have provided me with so much
material and emotional support throughout my endeavors at Whitman and abroad. You
have greatly empowered me by raising me to find my voice and think critically about the
world around us.

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Introduction
On June 26, 2013, LGB(T) 1 organizations and advocates celebrated when the
United States Supreme Court ruled that Section 3 of the Defense of Marriage Act
(DOMA) is unconstitutional in the landmark decision United States v. Windsor. Because
of this decision, the federal government must recognize and include lawfully married
same-sex couples in over 1000 places in federal law, overturning the prior definition only
recognizing marriages between “one man and one woman.” This very recent political and
legal development provides a potent site of analysis into the nature of LGB(T)
organizations’ increasing visibility and political power. The overturning of DOMA has
already had a variety of social, political, material, and symbolic consequences, but there
has been little scholarship yet written about the decision. Mainstream liberal progressives
and LGB(T) organizations continue to highlight the importance of the decision as a step
toward state recognition, social inclusion, and affirmation of LGB(T) people. I aim to
interrogate and disrupt this simplistic narrative of Windsor by revealing how it has
emerged within the context of LGB(T) assimilationist movements that have emphasized
marriage equality at the top of their agenda. Specifically, I will show how Windsor
emerges as a signal of a larger transformation towards a fairly conservative LGB(T)
politics that eclipses and weakens more radical queer political movements and
organizing.
I aim to accomplish this task by analyzing the inadvertent consequences of
Windsor within the context of increasing lesbian and gay assimilation. The Windsor
decision, at its core, secures and ensures economic benefits for same-sex couples. In
1

I denote Lesbian, Gay, Bisexual, and Transgender as “LGB(T)” to reflect that minimal inclusion or
outright exclusion of transgender persons and issues from the mainstream “LGBT” movement and
organizations. We ought to be deeply critical of the inclusion of the “T” so often in name only.

1

doing so, it include gay men and lesbians into the existing capitalist and legal apparatus,
without challenging the underlying structures of heteronormativity, cisnormativity,
patriarchy, and whiteness associated with the institution of marriage. Through unsettling
the assumptions and underlying foundations of a movement that heralds the Windsor
decision, I hope to open up room for more imaginative, more radical, and more liberating
alternatives that may bring about empowerment for queer communities and social justice
generally.
In order to accomplish this goal, I will take an interdisciplinary approach to
analyze and critique these systems of oppression in order to situate how they continue to
operate within LGB(T) political movements, particularly with each victory for marriage.
In such a way, Windsor serves as a test case and a site to glimpse into a larger political
movement that has co-opted queer political struggles. Through this analysis, I aim to
reveal how Windsor may be more complicated and perhaps even harmful in bringing
about deeper social change. Ultimately, Windsor’s reluctant endorsement of including
same-sex couples into benefits and privileges of civil marriage, Windsor forecloses an
opportunity to reconceptualize liberty and equality in a way that would actually bring
about real empowerment and self-determination for many queer individuals.
In Section 1, I analyze the state of LGB(T) and queer political movements to
reveal that there are actually two opposed movements with very different goals,
strategies, and tactics. I structure these two movements as many scholars have through
the lens of a central question of liberation versus assimilation. Pushing beyond the mere
ideological differences between these two movements, I argue that they are often actually
quite antithetical and mutually exclusive to one another in that the gains of one trade off

2

with the other. I argue that we need to shift from strategies of assimilation to those of
liberation in order to actually begin to change the conditions of social, economic, and
political inequality and perpetual violence that currently hinder the daily lives of queer
individuals.
In Section 2, I analyze the contemporary debates surrounding the implications of
the LGB(T) agenda centered around marriage equality. Through considering the merits
and critiques of the institution of marriage and politics of recognition, I look at the
foundations of marriage through a lens conscious of socio-economic exploitation and
inequality, patriarchy, and racial injustice. Based on these social criticisms, I argue
victories for marriage equality, such as Windsor, work more to normalize queer
experience and family arrangements more than gay marriage transforms the institution of
marriage itself.
Section 3 finally considers the legal reasoning of Windsor itself by applying the
framing of the previous two sections. I consider how Justice Anthony Kennedy analyzes
federalism, due process, and equal protection in a way that affirms particularly limited
notions of liberty and equality within our existing understanding of civil marriage. As
such, the Windsor decision limits possibilities of family and life for queer individuals and
others through bolstering the existing familial norms and institutions rather than opening
up possibilities for broader understandings of equality and liberty. I argue that Windsor
would have been better to decouple the liberty and equality values from civil marriage by
abolishing the acceptable discriminatory nature of marital status in the first place. In such
a way, I illustrate how Windsor marks a missed opportunity to interpret the Constitution
in a much more racial way.

3

Finally, as I contemplate alternatives to the contemporary approach that underpins
the Windsor decision, I call for a return to more radical, uncompromising, and creative
queer political struggles. By doing so, I hope to call into question our notion of
contemporary success and instead advocate for a political movement that opens up new
and imaginative queer possibilities for liberation and social justice.

Section 1: Assimilation or Liberation? Divergent Political Movements
In the history and current trajectory of contemporary gay and lesbian political
movements, I argue that there is not one movement, but two distinct movements with
very different and competing goals and methods. Contemporary political organizations
and movements that aim to empower the LGB(T) community are deeply divided between
two very different ideological camps: LGB(T) assimilationist political movements and
radical queer political movements. The Windsor decision emerges as a substantial
“victory” for assimilation in that it expands and strengthens the existing institution of
civil marriage and its associated economic and social privileges. In contrast, radical queer
political movements have attempted to dismantle institutions of privilege and to uproot
underlying social structures of injustice and inequality. Central to my argument is that
these movements, rather than working to benefit one another, are diametrically opposed
in their goals and tactics in such a way that a victory for one most likely weakens the
other.
In order to best situate how Windsor changes the landscape of queer political
activism, I will first establish how these two movements differ in their goals, tactics, and
overall philosophy for empowering queer communities. Many scholars and activists have
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framed the core dilemma as the question of “assimilation or liberation?” (N. Sullivan
2003; Rimmerman 2008). I think that this dichotomy effectively frames the divergence
occurring within ongoing debates and disagreements within LGB(T)/queer communities
today. This disagreement is not unique to gay, lesbian, and trans movements, but has a
long history within social movements that have sought to challenge oppression, mass
violence, inequality, and injustice. Disagreements over tactics and strategies have faced a
variety of movements concerned with race, class, gender, nationality, and many others.
From the civil rights and black power movements, to socialist and communist
revolutionaries, and also within feminist movements, these debates have a lively past and
present. Thus, this central question facing LGB(T) communities today is a glimpse into a
larger debate between normative strategies of assimilation and inclusion and that of more
radical, liberationist political strategies.
The underlying tension develops from how these different movements seek very
different social, economic, and political goals and often use varying methods to
accomplish them. The assimilationist mainstream perspective embraces strategies and
goals that work to include LGB(T) people into the already existing social system. This is
facilitated through an attempt to increase LGB(T) visibility and solicit recognition into
the existing social and political system by lobbying for acceptance into political and
social institutions, such as the state, marriage, military, the workplace, and many others.
The sentiment is that LGB(T) people are simply misunderstood, but are actually “just like
everybody else” (N. Sullivan 2003, 24). Thus, most assimilationist strategies attempt to
protect LGB(T) people from blatant instances of discrimination and violence. This

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perspective also accepts, at least generally, the current liberal democratic mode of social
organization as desirable at its core, so long as it is inclusive of LGB(T) individuals.
Both the Mattachine Society, the first of a many early homophile movements, and
the Human Rights Campaign (HRC), currently the largest national LGB(T) organization,
serve as prime examples of the assimilationist lesbian and gay political movement. Both
have worked to increase awareness and inclusion of gay men and lesbians into normative
social and political life by lobbying politicians and key power-holders, by advocating for
rights and protections, and by ending outbreaks of violence and hate crimes. The
Mattachine Society most notably emphasized its “allegiance to the church, state, and
society” and espoused their slogan “evolution not revolution,” which illustrate a very
openly assimilationist political strategy (N. Sullivan 2003, 25).
In contrast more radical, liberationist movements have struggled to bring about
much more fundamental and transformative change to the very social, political, and
economic conditions that have led to violence, inequality, and injustice in the first place.
For radical organizers and activists, the very roots of current social order are rotten and
thus should be uprooted, vehemently opposed, and/or reimagined entirely. Rather than
trying to include marginalized communities into existing institutions of power,
liberationist models call upon us to rethink and question these systems. Thus queerness
and non-normative ways of living, being, and thinking are embraced and there is value
placed in the creation and imagination of alternative social systems, values, lifestyles, and
communities (N. Sullivan 2003, 29).
Both the Gay Liberation Front (GLF) and the AIDS Coalition to Unleash Power
(ACT UP) illustrate the radical orientation of these movements. Both were birthed during

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times of immense turmoil and violence, that of police brutality surrounding the Stonewall
Riots for the GLF and the ongoing AIDS crisis for ACT UP. Likewise, rather than
seeking inclusion and assimilation, both tried to fundamentally transform cultural
assumptions and the social norms of the day by engaging in direct action, sit-ins and
protests, and through “in-your-face” tactics and advertising campaigns. Rather than trying
to push the differences of queerness aside or make the community more palatable for
straight society, the GLF and ACT UP affirmed their differences in order to build power
and bring about resistance. GLF’s Manifesto (1987) most notably demonstrates its radical
creed by stating “gay liberation does not just mean reforms. It means a revolutionary
change in our whole society” and by calling upon “gay people to stop copying straight.”
Notably, the politics of naming that circulates between these two movements also
sheds some light on their fundamental differences. The emergence and social meaning of
the term “queer,” which developed out of queer scholarship, reveals why typically more
contemporary radical, liberationist individuals, communities, and movements use the
term “queer” over “gay and lesbian” or the increasingly popular alphabet-soup formation,
“LGB(T).” While queer is often used in a vernacular sense as an adjective or noun
identity-formation, the verbal formation and meaning is perhaps more significant for
understanding the potential of radical queer politics today. While not so easy to define
explicitly, most queer studies scholars understand “queering” as a process of unpacking,
disrupting, unsettling, and unraveling something that is normative. David Halperin
defines queer as “whatever is at odds with the normal, the legitimate, the dominant”
(1995, 96). Likewise, Cherry Smith believes queer to be “a strategy, an attitude” and a
“radical questioning of social and cultural norms, notions of gender, reproductive

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sexuality, and the family” (1996, 280). Many scholars have broadened the definition of
what can be queered to include basically any social, political, or cultural phenomenon,
institution, or identity. In contrast, the terms “Gay and Lesbian” or “LGB(T),” are
frequently used by many mainstream assimilationist individuals, organizations, and
movements. This language selection itself suggests a legitimization of rights-based
identity politics, a move which “queer” movements would likely resist or at least
question. While LGB(T) politics attempts to solidify these identities in order to garner
political power and strength, queer politics tries to reveal how identity and experience is
much more fluid and unstable. Lee Edelman accordingly states, “Queerness can never
define an identity; it can only ever disturb one” (2004, 17). I think that the different use
of language and rhetorical dimension between these two political orientations reveals a
deeply irreconcilable difference between them, which I would like to explore further.
I argue that only a radically critical queer politics can produce the amount of
change necessary to emancipate underprivileged members of the queer community from
their current condition of systemic oppression and violence. I also argue that these two
movements, beyond being vastly different, are also fundamentally antithetical to one
another. In other words, they are mutually-exclusive in that the gains of one movement
often necessarily trade off with the other. This point is contested by some scholars. For
example, Darren Rosenblum argues that this dichotomy hides more complex interactions
in how both reformist liberals can work side by side with radical activists to bring about
social change (2009, 50). Additionally, he argues that the radicals make the moderate
reformers and assimilationists more attractive to mainstream society, pressuring those on
the Right to change their beliefs (2009, 51). While this may be true, the more radical

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liberationist goals are often left behind in order to appeal to the more traditional and
(hetero)normative political perspectives. In such a way, most forms of coalitional politics
between the two movements have multiple barriers and fail to accomplish each of their
goals, since they are not compatible. There are a few contrasting dimensions that reveal
that the dichotomy between assimilation and liberation as quite significant.
Goals. First, these two movements have vastly different political, social, and
economic goals. Assimilationist movements have often perpetuated the neoliberal
framing of social problems through an individualized lens that seeks to emphasize
individual acts of violence, discrimination, and bigotry, while not fully addressing the
underlying social and cultural system that underpins those individual incidents. Hate
crime legislation, employment discrimination, and other similar initiatives illustrate this
move to individualize violence against specific LGB(T) people. Assimilationist politics
often centers around bringing about “equality” through specific and individualized rights
and protections. Urvashi Vaid notes how this equality rhetoric has led to a sort of “virtual
equality” that covers up the underlying systems while giving us the illusion that there has
been social change (1996; 2012, 3-8). An agenda seeking to expand and increase equal
access to civil marriage, for instance, ignores the ways in which marriage itself has been
historically unjust and used to perpetuate gender and racial injustice in the first place. In
contrast, a more radical orientation opposes the underlying structures of
heteronormativity, cissexism, racism, and classicism. All of these considerations illustrate
how the gains of assimilationist politics ultimately embolden the systems and institutions
that radical politics attempts to dismantle by masking larger structural issues through
individualizing systemic problems.

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Short-Term Victories vs. A Process of Change. For many radical political
movements, the very process and method of political engagement itself is inherently
significant to the political project. In contrast, mainstream assimilationist political
agendas often have very specific benchmarks of success and will often utilize any means
necessary to achieve these short-term, measurable ends 2. By emphasizing short-term
victories, these mainstream movements will often sacrifice broader social change to bring
about small incremental advancement. Dean Spade (2011), a radical trans activist and
scholar, characterizes all politics as “a process rather than a singular point of
‘liberation.’” Thus, while assimilationist movements focus on measurable gains, many
radical projects view the process of activism, disruption, and political tactics themselves
as a critical moment to change and reveal unjust political and social problems. For
example, Rev. Martin Luther King Jr. (2003)[1963] advocated for non-violence in the
civil rights movement because he believed the tactic itself to be a powerful form of
resistance in how it “paralyzed and confused the power structures against which it was
directed.” For many radicals, the means in itself is just as significant as the ends, and
should not be compromised for short-term fixes. Thus, in the case of Supreme Court
cases, the precedent and underlying values behind the decision emerge as a greatly
important part of the process of change, beyond merely the effect of the Court’s decision.
In other words, for liberationist movements, utilizing unjust or problematic tactics and
reasoning to bring about material change may actually affirm existing injustices and
flawed assumptions that may only benefit an already privileged community.

2

This is often to satisfy key shareholders and donors of large non-profits organizations. This trend flags a
larger concern with the way in which organizations are beholden to the desires of their wealthy donors,
creating a non-profit industrial complex (See INCITE! 2009).

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Who is Included and Prioritized? The question of who is included in a political
movement is critical. Existing systems of power and privilege create an invisible center
that greatly benefits subjects of certain social locations, while those lacking privilege (be
it class, white, male, straight, or other forms) are often pushed to the periphery of social
and political life (Ferguson 1990). This is often duplicated within many social justice
focused movements, particularly more mainstream and normative ones. Liberationist
movements today, in contrast, will often prioritize the needs of marginalized and
underprivileged subjects at the fore of their political project (Spade 2011, 62;
Rimmerman 2008, 6). Who is included and prioritized within these movements’ agendas
and strategies reveals a tension between the argument that each movement may support
or strengthen the other, since they ultimately have different starting points for political
action.
The result is that assimilationist movements and radical movements do not neatly
operate side-by-side together. Instead, the victories of an assimilationist ideology actually
scale back the degree by which radical movements may take hold. While it may be true
that radical approaches make more incremental change more palatable to mainstream
society, those incremental changes are insufficient and contrary to the goals of radical
liberation. Mattilda Bernstein Sycamore says, “Assimilation is violence, not just the
violence of cultural erasure, but the violence of stepping on anyone who might get in the
way of your upward mobility” (2008, 4). LGB(T) movements, through organizations like
HRC, emphasize small incremental victories, such as Windsor, in a way that masks
greater underlying systems of oppression. The rich history of resistance and queer
struggle becomes hijacked by white gay and lesbian elites who prioritize their own

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advancement over less privileged queer subjects and seek inclusion in institutions of
privilege and status, such as civil marriage, without challenging the underlying structures
of oppression and violence.
The contestation between these movements is still very alive, although the social
and political context of Windsor reveals a deeper transformation towards assimilation by
framing the issues of gay and lesbian advancement through civil marriage. In light of our
understanding of these two different political ideologies, I will reveal how Windsor may
actually secure and enshrine existing systems of violence and inequality, and foreclose
new queer possibilities of living and loving. In such a way, Windsor’s expansion of civil
marriage serves as a test case and glimpse into the dying queer liberation movements and
a continuation of institutions that privilege certain forms of life and family over others. I
now turn to an analysis of the specific issue of marriage equality that is central to the
Windsor decision.

Section 2: Windsor within the Gay Marriage Movement
When the Windsor decision was issued on June 26, 2013, it was immediately
hailed as a substantial victory by LGB(T) organizations advocating marriage equality
around the country. 3 While many of these marriage equality battles have focused on state
marriage laws through referenda and legislation, Windsor signaled a major victory for the
movement on the federal level by gutting DOMA. In this section, I will analyze the
current marriage equality movement within which Windsor emerges. I hope to place the
3

The organization Freedom to Marry, for instance, proclaimed “Love Wins” (Polaski 2013), as advocates
hailed the “joyous occasion” (Pearson 2013, par. 1). Buzzfeed and other trendy news media outlets popular
with young adults constructed celebratory lists and photojournalistic accounts of the decision, designating it
a “historic day” (Stopera 2013).

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on-going debate around marriage equality within LGB(T) communities into the context
of the debate between assimilationist and radical political perspectives, in hopes of
revealing how Windsor signals a broader move towards the former.
Following the early struggles for marriage equality in the Hawaii Supreme Court
in 1993, the marriage movement most notably began to gain momentum in 2003. That
year, the Massachusetts Supreme Court ruled it unconstitutional to deny same-sex
couples marriage benefits, making it the first state to fully recognize same-sex marriages.
Since then, there has been a cascading movement in local state elections and legislative
efforts, with huge sweeping victories in 2012 in Washington, Maryland, and Maine. At
the time of the Windsor decision, 12 states and the District of Columbia recognized samesex marriage. Following the Windsor decision, there has already been substantial
momentum and a spillover effect in district courts, with 18 court rulings in the favor of
marriage equality and many different states pending in the legal process (Knickerbocker
2014). In short, there is no dispute that the Windsor decision followed and expanded
massive momentum for marriage equality around the country.
But what are the actual social, material, and political implications of a growing
movement, in which Windsor is one of the latest victories? Since the beginning of the
marriage equality debate, the question has been posed as “are you for or against marriage
equality?” Most visible has been the disagreement between social conservatives and
LGB(T) advocates and their allies. However, these questions have also been heavily
debated within LGB(T) communities as well with dissenters attempting to challenge the
nature of the yes/no question itself. My argument is that this question itself is an
assimilationist approach to queer politics, divorced from an analysis of the historical

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oppression in the roots marriage as an institution. I will analyze how gay marriage
functions as an assimilationist goal that only benefits an already privileged part of the
queer community. Likewise, I hope to lay bare the plethora of radical critiques that reveal
queer liberation is not found through gay marriage, but rather how marriage equality
expands an institution complicit with normalizing classist, racist, and sexist systems of
power and oppression.

Securing Economic Privilege in Contemporary Capitalism
I argue that presenting the question of marriage equality as yes or no question is
problematic in that it shifts our attention away from larger structures of socio-economic
inequality and social prejudice of marriage in the first place. The advocates of marriage
equality base many of their arguments on the fact that LGB(T) people should be treated
equally by the law and afforded the same economic benefits, privileges, and recognition
that heterosexual married couples receive. At its heart, the marriage question is a debate
about expanding access to a status of economic and social privileges that is itself founded
through exclusion. Throughout the emergence of the contemporary institution of
marriage, the dominant social and cultural belief has been that marriage was worth
incentivizing, therefore determining who is most deserving of governmental benefits,
social services, and status. I, however, would like to turn to what assumptions are implicit
within an affirmation of civil marriage.
Federal marriage benefits are enshrined in federal statutory law in over 1000
places, which were since modified by the Windsor decision to include recognized samesex couples (Bravin 2013). These benefits include everything from tax breaks and joint

14

filing deductions to access to social security survivors’ benefits, to access to medical
leave and hospital visitation rights, veterans’ spousal benefits, access to certain welfare
programs such as Temporary Assistance for Needy Families (TANF), and much more
(GAO 2004). In particular, the lawsuit in question was prompted when Edith Windsor
was refused a spousal estate tax exemption following her wife’s death. Another very
significant federal marriage benefit is family visa privileges, which Windsor expanded to
allow access for undocumented and immigrant same-sex married spouses (Titshaw
2013). For each of these benefits, I pose the question of they are conditioned on marital
status in the first place. Marriage has been promoted for decades as a desirable social
good for promoting stability and reproduction, justifications arising from “family values”
that have been deeply reactionary and heteronormative in their foundations. These
protections, rights, and benefits should be awarded to individuals regardless of marital
status. Tax benefits in this system are regressive in that they reward an often socioeconomically privileged class of people. Instead of expanding these tax benefits, we
should actually address economic injustice by redistributing wealth and ending poverty
(Spade 2011). Likewise, anyone should be able to visit someone they care about in the
hospital regardless of their marital status. Additionally, substantial changes need to be
made to U.S. immigration law to rethink deportation and the ways in which immigration
has been crafted through an often racist and xenophobic rationale. Marriage equality fails
to actually change the larger systems of inequality, hierarchy, and exclusion that emerge
from these economic, political, and social systems. Merely modifying civil marriage to
include same-sex couples does nothing to address the unjust nature of these structures in
the first place.

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Likewise, there is increasing data and evidence that the proponents of marriage
equality are already fairly socio-economically privileged in society (Puar 2011, 61-3). As
an institution that secures economic benefits and privileges for an already privileged class
of lesbian and gay people, marriage represents an institutional extension of economic
injustice and inequality. Likewise, many poor and working class queer subjects may
coerced into marriage as a means to gain access to its associated economic benefits, as a
sort of survival strategy. Thus we face a situation where upper and middle class LGB(T)
people advocate for marriage equality to protect and secure their class privilege, while
working class queer folks feel compelled to marry for survival, or in hopes of one day
moving up the economic latter, persuaded by the contemporary neoliberal “boot-straps”
logic. In such a way, fighting for marriage equality ultimately expands and entrenches the
existing socio-material arrangement of capitalism that ensures the economic security of
one class at the expense of another. Thus, gay marriage ultimately attempts to incorporate
the LGB(T) middle class into the existing system of capital accumulation and class
inequality. This further illustrates why the agenda of gay marriage is ultimately
conservative and assimilationist in nature, attempting to secure and further the existing
social and economic apparatus of capitalism.

Normalizing Queer Identity
In addition to reifying existing capitalist systems of class inequality, marriage
equality perpetuates a normalization of the social and cultural dimension of queer kinship
arrangements. While material justifications have brought marriage equality to the fore of
LGB(T) political agenda, there have also been broader narratives of what it means to be a

16

LGB(T) person in the cultural debates surrounding gay marriage. This is perhaps one of
the most explicit examples of the “we’re just like you” mentalities that I highlighted
earlier as a core tenant of assimilationist politics. Rhetoric surrounding gay marriage is
often laden in appeals to show how LGB(T) couples have the same challenges, concerns,
and love stories as straight couples. 4
However, the social and cultural discourses surrounding marriage date far back to
before the emergence of gay and lesbian activism and subsequent requests for inclusion.
Scholars note how the cultural exaltation of marriage was ultimately meant to induce the
population to lead a certain form of morality in their family life characterized by longterm commitment and monogamy. Martha Fineman argues gay marriage attempts to
ultimately legitimize and affirm marriage as a “sexual family,” an exclusive institution
and form of social organization that orders kinships around sexuality (2009, 45-46). The
result is a demonization of all those outside of the normative marriage arrangement who
are deemed unnatural or socially deviant (Fineman 2009, 48). Most notably, this has
occurred in the past with single women, single mothers, divorcees, and others who have
been induced to marry in order to gain economic and social acceptability. Gay marriage
thus propagates a certain hierarchy of recognition and intelligibility centered on elevating
those who are in long-term, committed, monogamous relationships, which excludes many
forms of queer life.
This normalizing effect is exemplified by how certain gay and lesbian identities
have become designated as socially acceptable, hiding many of the diverse familial and
sexual choices and arrangements embraced by queer people. Michael Warner critiques
4

A recent example is a video advertisement for the Mainers for Marriage Equality campaign which depicts
a lesbian couple who emphasizes their loyalty to one another, lifelong commitment, and features them
saying “we do all the things married people do” (Aravosis 2012).

17

LGB(T) politics’ attempts to sanitize and moralize queer identity and experience. He
argues that gay marriage attempts to bring queer life into the traditional understandings of
family values, by distancing queer identity from the stereotypes of alternative lifestyles
that revolve around gay bars, pornography, public sex, and one-night stands (2002, 286;
see also Pedriana 2009; Valdes 2009) In attempting to displace and eradicate this history
of queer life, marriage equality discourses utilize outwardly homophobic rhetoric that is
based in a history of pathologized understandings of gay identity. In doing such, they
attempt to only portray the “good gays” to make the assimilationist political movement
more acceptable and understandable to straight society (Warner 277). By presenting a
singular possibility for queer ways of loving and living, the marriage discourse forecloses
potential alternative forms of queer family. Tucker Culberton and Jack Jackson frame this
move as a shifting of the axis of power that sacrifices certain forms of queerness,
entrenching a “regime of inequality between such couples and everyone else, married or
not” (2009, 144). It also erases the alternative kinship arrangements and forms of
relationships that flourish among queer communities today.
Nancy Polikoff (2012) provides a concrete example of how these regulatory
effects have taken place as a result of broader marriage equality. She examines how in
several legal suits relating to employment and healthcare benefits, Lambda Legal and the
Human Rights Campaign have explicitly avoided advocating for individuals who have
chosen not to marry. As the marriage movement has grown and gained visible
momentum, many queer communities have felt the need to marry and alter their previous
sexual and familial preferences. Polikoff illustrates how many are being left behind and
sacrificed for the overall goal of marriage equality, a phenomenon she calls “winning

18

backwards” (2012, 759). These examples demonstrate how the discursive tactics and
strategies deployed by many LGB(T) organizations, and I would argue the reasoning by
the Court, are in themselves significant, even if viewed as merely a means to a specific
goal. They have created new norms that socially and juridically coerce queer people to
meet a set of expectations or be left behind by the broader assimilationist objective.
Many scholars and activists, however, continue to argue that marriage equality is
not necessarily normalizing and assimilationist, but that it has the possibility to
strengthen lesbian and gay families, and perhaps fundamentally alter marriage as an
institution itself. There are first a large group of liberal advocates that argue same-sex
marriage will bring about LGB(T) equality and end an era of second-class citizenship
(such as Eskridge 1993, A. Sullivan 2004, Moore and Stambolis-Ruhstorfer 2013).This
sentiment appears in the Windsor oral arguments when Justice Ruth Bader Ginsburg
refers to current same-sex civil unions as a sort of “skim milk” version of heterosexual
marriage (transcript, 71). These arguments about a limited notion of equality based on the
similarity between homosexual and heterosexual marriage are assimilationist and seek to
merely include gays and lesbians into the existing social apparatus. Likewise, advocates
concerned with adoption and parenting rights, such Carlos Ball (2004;2012), illustrate
another marital benefit that can be denied of same-sex couples. These concerns are
important, but again indicative of a larger social problem of tying adoption rights to
marriage in the first place. Rather than only affording married couples the right to adopt,
the state and adoption agencies should prioritize selecting the most suitable parent(s) that
will provide the best care for the child, regardless of marital status. Finally, there is a
robust and respectable defense of marriage as a religious institution, albeit assimilationist.

19

Andrew Sullivan, a self-proclaimed liberal gay Catholic, embraces assimilating lesbian
and gay families into the stability and long-term commitment espoused by JudeoChristian values (2004, 148; 250). I think this is an important perspective, one that may
present traditional marriage as a fit for certain folks with particular religious worldviews.
However, it seems unnecessary and improper to espouse these religious and historically
developed ideologies of the institution of marriage as a universal solution for the whole
queer community and society more generally. Likewise, marriage as a religious
institution need not necessitate a civil institution associated with political benefits not
accessible to other lifestyles and religious beliefs.
Other scholars argue that same-sex marriage has the potential to disrupt or
“queer” the heteronormative foundation of marriage itself. For instance, many scholars
have argued that gay marriage has the potential to dislodge heteronormativity and
reproductive sexuality from the institution of marriage by subverting its original gender
dynamic of one man and one woman (Eskridge 2002; Boellstrof 2007, 229, 242;
Rosenblum 2009, 48). Mary Bernstein, for example, argues that queer identity is
intrinsically outside the very logics foundational to heterosexual marriage (2001; see also
Kimport 2013, 9). All of these attempts on the Left to defend same-sex marriage,
however, I believe fail to overcome the before stated criticisms for a few reasons. First,
while “queering” marriage may be possible in particular instances, these narratives are
rarely the ones that gain visibility in mainstream media coverage and in organizations’
websites. In this way, the discourses surrounding marriage equality sacrifice the radical
potential of queer families to determine their own lives so that same-sex marriage seems
less threatening to society at large. Second, in many cases the institution of marriage (and

20

the historical baggage of heteronormativity it carries) appears to be transforming queer
families, more than queer families have transformed the institution itself. This can be
evidenced by the ways in which gay marriage is increasingly becoming the new norm of
gay and lesbian life. As gay marriage has more victories and becomes widely available, it
seems likely that the old cultural norms will likely continue to remain hegemonic, rather
than opening new space to recreate and reimagine marriage and family in the first place.
In short, gay marriage is likely not necessary and perhaps even restricting in allowing for
a queering of the family.

An Institution of Patriarchy and Racism
In addition to upholding and perpetuating an institution of class privilege and
normalizing queer identity, gay marriage also props up a historically sexist and racist
institution. Feminist scholars have long criticized the institution of marriage as a site of
women’s oppression, subordination, and dependence on men and as an
institutionalization of the sexual division of labor (for example Friedan 1963; de
Beauvoir 1949; Firestone 1970; Pateman 1988). Yet, despite these criticisms, marriage
retains an ideological, social, and cultural dominance, even as divorce rates reach an alltime high and more people than ever are choosing not to marry (Halberstam 2012, xix;
40). While there is some disagreement over what degree these criticisms apply to samesex marriage as it may de-gender the institution, the gay marriage movement still aims to
expand and reify a historically oppressive and patriarchal institution. In particular, gay
marriage would codify the existing division between private and public spheres that has
allowed for sexual and domestic violence to persist. Lynne Huffer, for example, notes

21

how much of the marriage equality movement privileges privacy rhetoric and
jurisprudence, which has ensured that violence against women in the home was protected
and shielded from public or state intervention (2009, 419-20). In addition to on-going
movements for marriage, the Lawrence v. Texas (2003) decision, which ended the
criminalization of sodomy laws in the United States and paved the way for Windsor,
codified a discourse of privacy and separation between the public and private. This, in
turn, has legitimized a sexual division of labor and had dire consequences for women’s
movements and liberation (Culbertson and Jackson 2009,142; see also MacKinnon 2004).
Likewise, condoning the “sexual family” that forecloses alternatives is a problematic goal
because it would continue the narrative and designation of single women, single mothers,
and women of color as deviant and in need of wedlock (Fineman 2009, 45-46). Overall,
the movement to expand marriage to same-sex couples is contrary to some of the central
goals of women’s emancipation from patriarchy, gender violence, and oppression.
Second, gay marriage is immersed with racial discourses and considerations.
Traditional marriage has a long history of racial injustice and oppression. Marriage is
socially constructed as an institution of whiteness, while the diverse family arrangements
and structures embraced by immigrant communities and people of color have often been
excluded, demeaned, or criticized by conservatives and proponents of marriage
(Bernstein and Reimann 2001, 4-5; see also Petzen 2012, 290). Many families and people
of color fall outside the economic and social structure of acceptability and desirability
promoted by the traditional family structure. Likewise, while marital status correlates to
increased social and economic opportunity for white people, evidence shows these
benefits are not experienced to nearly the same degree by people of color (Kimport 2013,

22

112). This illustrates a deep racial divide in the gay marriage movement. While marriage
enhances the social and economic well-being of white folks, the deeply seeded structural
racism and economic oppression facing black queer and queer people of color make
marriage of little significance for them.
An increasing number of black scholars and activists have forwarded that the gay
marriage movement has been blatantly anti-black, as well as being a tool of family
regulation used to further oppress black communities (e.g. Bailey, Kandaswamy, and
Richardson 2004; Farrow 2005; Spade and Willse 2013). This is evidenced by how
marriage has been used as a condition for welfare and government programs to implicitly
exclude people of color, in particular single back women and mothers (Spade and Willse
2013). These illustrations show how marriage operates as a tool for white supremacy and
systems of anti-black violence. Sabrina Alimahomed notes that within the representations
and discourses of the marriage equality movement, people of color are often placed on
the periphery, tokenized, or excluded altogether (2012,153; also see Bailey et al. 2004,
113). The discourses following the Proposition 8 election in California demonstrate how
black communities are also quickly scapegoated and cast out of the movement, as the
dominant media and prominent gay rights activists blamed the black voting block for its
failure, even though these allegations have proven to be patently statistically false (Roker
2008).

Moving Beyond Marriage, Shifting the Political Agenda
In light of all of these criticisms and the problematic dimensions of marriage
equality, I argue that there should be alternative and more encompassing approaches to

23

bring empowerment and liberation for queer individuals and families. The LGB(T)
assimilationist agenda has demarcated marriage as the final frontier, the biggest and most
significant political objective. Yet, marriage equality at its base primarily benefits a
relatively small socio-economically (highly white and male) privileged group, while
failing to address the underlying systems of power and oppression inherent in classism,
sexism, racism, and cissexism. Gay marriage, contrary to enhancing the quality of life
for all, pushes those at the margins out of the agenda, ultimately revealing it to lack a
collective emphasis on social justice. Specifically, gay marriage shifts substantial
resources, money, time, and power away from the issues that are actually impacting the
most marginalized in the queer community. Perhaps even worse is as the marriage
equality quickly reaches its goals, there is a likely possibility that there will be a false
sentiment in mainstream culture and politics that gay and lesbian issues have already
been addressed. 5 Widespread poverty, lack of access to medical care, unemployment,
mass incarceration, homelessness, bullying, and social stigma face many queer people
and youth today, and in particular are disproportionately affecting trans and queer people
of color. Eric Stanley (2011) argues that the people at the very margins and periphery of
queer life and social intelligibility should be at the center of our social movement, since
they experience the most pressing and prolific violence in their daily lives. This includes
forming a radical politics that centers its analysis around the structures of oppression and
violence affecting trans and queer people of color, working class queers, homeless queer
youth, queers living with HIV/AIDS, and queer people who face mass incarceration and
police brutality as examples (Stanley 2011, 2; see also Spade 2011, 620). A
5

This is often the case with many social justice movements, such as the birth of colorblindness after the
civil rights movement or the rise of “post-feminism” following a steady decline in the power of feminist
movements in the 1990s.

24

multidimensional and intersectional understanding of systems of power and privilege
should drive our queer political movement in order to actually bring autonomy, selfdetermination, and liberation. Rather than investing so heavily in a flawed institution, we
should move beyond marriage in search of new imaginative possibilities for ways of
living and loving. Gay marriage simply falls short and counteracts with these objectives,
and therefore marks a transition away from a social justice-oriented queer political
strategy.

Section 3: The Legal Reasoning of Windsor
Having considered the background contours of the disagreement between queer
political movements generally and the problems of the marriage equality agenda
specifically, I now turn to the legal opinion and decision of United States v. Windsor
itself. Windsor follows an ever-growing transition to assimilation by expanding and
entrenching existing social and economic hierarchies associated with civil marriage. The
Court’s majority opinion, authored by Justice Anthony Kennedy, can be confusing at first
in that it deploys both an analysis of federalism, as well as equal protection and due
process in deeming DOMA unconstitutional. I aim to unpack these two different
components of the decision’s reasoning to reveal how Windsor may be much more
limiting for queer individuals than has been discussed by most mainstream accounts of
the decision. Specifically, I argue that the Windsor decision frames its reasoning through
a very narrow and limited understanding of equality and liberty that perpetuates and
expands the privileged social status associated with marital status. This hinging of equal
protection and due process liberty to marriage condones queer assimilation with the
25

existing regime of civil marriage, foreclosing the possibility of affirming and encouraging
alternative forms of sex, family, and relationships. For this reason, I argue the Windsor
decision is actually contrary to the constitutional values of liberty and equality that are at
the very heart of the 14th amendment, as well as contrary to the goals of a more
comprehensive radical queer politics.
Central to my argument is that the reasoning of Windsor unnecessarily emboldens
the institution and privileged status of civil marriage by defending an inclusion of samesex couples, narrowly tailoring our legal understanding of due process liberty and equal
protection by framing these issues through the lens of civil marriage. I argue this is an
assimilationist jurisprudence in that it attempts to strengthen the existing institution of
familial recognition, rather that abolishing the significance of that institution. In contrast,
ruling civil marriage as discriminatory and unconstitutional would allow for a
reconceptualization of liberty and equality that would be beneficial for many queer and
non-conforming individuals and kinship arrangements. In order to properly understand
the reasoning of Windsor, I will first the use of federalism to reveal a problematic turn in
jurisprudence for enhancing individual liberties and protections. Second, I will analyze
how Windsor frames equal protection and due process through the tradition of Lawrence
v. Texas and Loving v. Virginia to show how marriage has come to delimit the horizon of
familial possibility. I will show how privileging married couples for federal benefits and
protections necessarily reproduces inequality and stifles liberty for many who do not
comply with the traditional norms of married life. Finally, I will offer an analysis of how
actually overturning the use of marital status as an acceptable form of discrimination

26

would open up space for affirming difference and empowering the diverse sexual and
familial relationships of queer and non-normative individuals.

Federalism
First, a discussion of federalism emerges as central in the first section of the
Windsor decision. While federalism is generally understood as a set of principles relating
to the appropriate relationship between federal and state governments, it has more
recently often become a robust defense of states’ rights and sovereignty. Justice Kennedy
frames his analysis around “the state power and authority over marriage as a matter of
history and tradition” (16; see also 14, italics added). Despite the central component of
federalism in the Windsor decision, there is some disagreement to what degree the
decision actually rests on federalism itself. Chief Justice John Roberts argues in his
dissent, “It is undeniable that its judgment is based on federalism” (2). In contrast, Justice
Antonin Scalia believes that the federalism component of the decision is a façade, stating
in his dissent that the opinion “fool[s] many readers…into thinking this is a federalism
decision” (15).
Importantly, if Justice Roberts is correct that the heart of the Windsor decision
strikes down DOMA because it is an unjustified federal intrusion into state sovereignty
(as many have quickly interpreted), then the Windsor decision is deeply troubling. The
emergence of a jurisprudence centered on protecting state’s rights is a relatively recent
occurrence, emerging most notably during and since the Rehnquist Court, which struck
down more acts of Congress than all previous Supreme Courts combined (Levinson
2006, 590-93).This parallels a trend of an increasing emphasis on federalism that has

27

been used counter to the goals of protecting individual liberties. Rosalie Levinson says,
“The Rehnquist Court decisions demonstrate that the “New Federalism” has not furthered
this liberty-enhancing goal. To the contrary, federalism has been invoked to narrowly
construe constitutional rights to limit Congress’ power to enact laws that protect
individual rights (2006, 596). Examples of this include when the Court invalidated
significant portions of the Violence Against Women Act (VAWA), a law meant to
combat physical and sexual violence against women, finding that Congress had exceeded
its Commerce Clause power in intervening into state sovereignty (Levinson 2006, 592). 6
Likewise, the Court used federalism principles to hold that state employees could not
recover money damages for alleged violations of the Americans with Disabilities Act
(ADA) because Congress did not sufficiently prove pervasive discrimination against
people with disabilities and had therefore exceeded its authority in Fourteenth
Amendment, improperly intruding in state sovereignty (Levinson 2006, 594). 7 These
examples illustrate how expanding federalism jurisprudence has been used by the Court
to gut and invalidate Congressional action to ensure individual liberties and enhanced
protection for groups facing pervasive violence and discrimination. As Levinson says,
“Rather than being liberty enhancing, the decisions [invoking federalism] appear to
simply promote a conservative agenda – the same agenda reflected in a series of
decisions narrowly interpreting other key civil rights provisions” (2006, 595). Likewise,
the appeal to federalism by Justice Kennedy may actually enhance the ability of the Court

6

See United States v. Morrison (2000).
See Board of Trustees of the University of Alabama v. Garrett (2001). While this decision was later
weakened by Tennessee v. Lane (2004), it still marks a dangerous use of federalism as a barrier to disability
protections.

7

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to counter the very protection and expansion of individual rights that the Windsor
decision seemingly attempts to advance.
Ultimately, I agree with Justice Scalia and other constitutional scholars, such as
Courtney Joslin (2013), that the Windsor decision does not actually make its conclusions
about Section 3 of DOMA on federalism principles. This is perhaps made most clearly to
me when Justice Kennedy states,
Despite these considerations, it is unnecessary to decide whether federal
intrusion on state power is a violation of the Constitution because it
disrupts the federal balance. The State’s power in defining the marital
relation is of central relevance in this case quite apart from principles of
federalism (18).
Instead, as Joslin argues, Justice Kennedy utilizes an analysis of the history and tradition
of states’ control over marriage and family law as a means to an analysis of equal
protection and due process. Rather than deciding the decision on federalism grounds,
DOMA’s unprecedented move by the federal government to ignore or intervene in an
area of law that has traditionally been reserved to state governments triggered a necessary
heightened level of equal protection scrutiny since DOMA is “a law designed to injure
the same class the State seeks to protect” (19).
While this use of federalism may seem less problematic than the other uses seen
in the decisions regarding VAWA and ADA, I argue using federalism as a sort of test or
trigger for equal protection is still problematic. The lip service of federalism in the
Windsor decision is still rhetorically damaging as it grants legitimacy to a realm of
constitutional jurisprudence that is historically regressive and has great potential to be
misused. Conditioning protections of individual liberties and equal protection should not
be hinged on principles that have historically been used weaken individual liberties in the

29

first place. Thus, I believe the appeal to federalism should have no place in the Windsor
decision does and very little to actually enhance the liberty and equal protection for queer
individuals.

Due Process and Equal Protection
In the second half of Justice Kennedy’s opinion, he holds that DOMA violates
both the equal protection and due process principles required of the federal government
in the Fifth Amendment 8. Citing Romer v. Evans (1996), Justice Kennedy holds that
DOMA is a “discrimination of an unusual character” requiring a heightened level of
scrutiny since it has a disparate treatment and application of law to exclude a politically
unpopular group (20). Citing the language used in the House and Senate hearings
surrounding the bill’s passage and the language of the Act itself, he suggests DOMA’s
intent was to enshrine moral disapproval and animus at the law’s inception. The Court
holds that DOMA “places same-sex couples in an unstable position of being in a secondtier marriage” (23). He also concludes that DOMA “cannot deny the liberty protected by
the Due Process Clause of the Fifth Amendment” (25). Importantly, the opinion does not
explicitly tell us which liberty is infringed upon, but does allude to the variety of benefits,
social status, and dignity associated with marriage that are deprived of same-sex couples
by DOMA (23-4).

8

Importantly, the Fifth Amendment establishes the protection of individuals’ liberty from being infringed
upon by the federal government without due process, while the Fourteenth Amendment extends this
protection by applying it to the states. The Fourteenth Amendment additionally establishes “the equal
protection of the laws” for state governments, a protection not explicitly state in the Fifth Amendment.
This equal protection clause was later interpreted to also implicitly be applicable to federal laws,
establishing what is known as “reverse incorporation.” See Bowling v. Sharpe (1954).

30

There are two very significant decisions that are cited in Windsor relating to equal
protection and due process, which I believe require closer analysis. Windsor relies
heavily upon the reasoning of both the Lawrence v. Texas (2003), and Loving v. Virginia
(1967). In Lawrence, the court struck down anti-sodomy laws, overturning Bowers v.
Hardwick (1986) on the basis that same-sex sexual intimacy was protected under the
liberty clause of due process as a privacy right. Importantly, neither the Lawrence nor the
Windsor decision explicitly establishes a right to sexual intimacy or same-sex marriage,
but merely argues that explicit federal exclusion of same-sex marriage or criminalization
of homosexual sex is unconstitutional. Tucker Culbertson perhaps best summarizes this
point by stating, “Lawrence overrules a law against Homosexual sex by Constitutionally
defending neither sex nor Homosexual sex as such” (2007, 587). Interestingly, however,
Justice Kennedy utilizes Lawrence to say that the “[DOMA] differentiation demeans the
couple, whose moral and sexual choices the Constitution protects” (23). I conclude that
Windsor attempts to protect same-sex couples’ liberty to have sexual, moral, and familial
choices and freedoms, so long as those freedoms are associated with contemporary civil
marriage. This is made clear by Justice Kennedy’s condemnation of DOMA’s attempt to
“deprive same-sex couples of the benefits and responsibilities that come with the federal
recognition of their marriages” (20). It is also reiterated when the decision notes how
DOMA deprives an entire class of persons of the liberty of recognition itself (25). Both of
these passages suggest that Windsor ties these sexual and familial choices to the decision
to get married very closely. While Lawrence was ultimately about sex, Windsor clearly
applies the Lawrence’s understanding of liberty explicitly to the long-term commitment
of marriage, rather than broader liberties of sexual autonomy, familial choice, and access

31

to economic and social benefits. I believe this is a problematic turn in that it substantially
limits our understanding of liberty and equality to the very exclusionary institution of
marriage, eclipsing and excluding the diverse experiences and choices of queer
individuals.
There are also notably very ripe criticisms of the Lawrence decision that apply to
Windsor as well. Utilizing Lawrence, Windsor extends the public/private dichotomy
inherent in the logic of privacy rights (this time in marriage instead of sex) that has
greatly hindered women’s emancipation and prevented state intervention into the
domestic violence and marital rape (MacKinnon 2004, 1087-8). Marc Spindelman (2004)
also notes how the Court in Lawrence goes out of its way to not condone or outright
accept “homosexual conduct,” but instead uses a form of straight logic and rhetoric to
justify its decision. Likewise, Windsor’s emphasis on the similarity between heterosexual
and same-sex marriages further homogenizes and assimilates queer experience into a
heteronormative understanding of marriage, by extending the “same status and dignity”
to same-sex marriages (13).
Loving v. Virginia (1967) is also a significant decision cited in Windsor. Loving,
authored by Justice Warren, considered the validity of a Virginia anti-miscegenation law
that outlawed mixed-race marriages. The Court found these laws to be unconstitutional,
violating both equal protection and due process liberty. Importantly, the Loving decision
established marriage as a fundamental right, stating, “Marriage is one of the ‘basic civil
rights of man,’ fundamental to our very existence and survival. ” Interestingly, the
Windsor decision cites only Loving as an example of an appropriate federal intervention

32

into state sovereignty over marriage and family law in order to “respect the constitutional
rights of persons” (16).
I believe Windsor extends and reifies the logic of the fundamental right to
marriage established in Loving, only now extending that right to include lawfully
recognized same-sex marriages. This is not so explicit, but implicitly arises in Windsor’s
protection of the same dignity and status of recognized same-sex marriages and its
criticism of the current “second-tier marriage” accessible to same-sex couples. In such a
way, Windsor’s reasoning deploys equal protection and due process liberty in order to
enhance a particular type of equality and liberty. Namely, Windsor attempts to protect the
liberty to participate in the social status and economic benefits of a historically
heteronormative and capitalist institution. Loving articulates this fundamental right to
marriage as a component of substantive due process liberty (Culbertson 2007, 579).
While Windsor did not explicitly announce a fundamental right to marriage for same-sex
couples, its reliance on Loving and much of its rhetoric suggests an extension of this
logic. Thus, Windsor, despite overturning section 3 of The Defense of Marriage Act,
ironically upholds a constitutional defense of marriage, albeit a form potentially inclusive
of recognized same-sex couples. I argue this implicit right to marriage, which frames an
understanding of liberty and equality in Windsor, is deeply concerning, in that it places
severe limitations in our doctrinal understanding of equal protection and due process as it
relates to family, kinship, and sexual intimacy.
Windsor is not the first decision to use Loving’s method of reasoning in relation to
liberties protected for lesbian and gay individuals. Tucker Culbertson reveals significant
parallels between the reasoning in Loving and Lawrence, arguing, “Lawrence’s anti-

33

Homophobic Heteronormativity resembles Loving’s maintenance of traditional
Heterosexual marriage even while its traditional homoracial parameters are undone”
(Culbertson 2007, 589). I would argue that Windsor extends the fatal logic of Loving
even more directly than Lawrence by including same-sex married couples in the social
status and federal benefits of marriage,.

An Alternative to Affirming the Privileges of Marriage
A much more radical and socially just alternative direction for Windsor would
have been to abolish the privileged and preferential status of civil marriage, rather than
merely extending its associated benefits to some same-sex couples. Rather than defending
the superiority of married couples, Windsor would have been better to abolish the
significance of marital status for determining federal benefits in the first place. I rely
heavily on Tucker Culbertson’s analysis in endorsing this alternative. He argues,
Reframing The Marriage Question as a reconstructive demand for equal
sexual and familial liberty might enable our c/Constitutional politics to be
more than an anachronistic, chronically late, analogical, incremental, and
exclusive expansion of presently unconstitutional and inherently unjust
practices of governance (Culbertson 2007, 599).
I agree that the optimal alternative legal reasoning would reframe the discussion of equal
protection and liberty in a more fully inclusive way that is not limited to merely federal
marriage benefits, but rather about a more encompassing constitutional protection of
sexual and familial liberty and equality. For instance, this would include the liberty to not
marry or to enter non-monogamous or non-exclusive relationships, as well ensuring the
equal protection and application of law to these individuals to access the same benefits,
needs, and protections as married couples. By abandoning preferential treatment based on

34

marital status, the Court could have opened up space for alternative sexual and familial
relationships. Only this would enhance liberty and equality in the application of the law
for the diversity of queer relationships, as well as for the unmarried, divorced, single,
non-monogamous, and many other ways of loving and living (Culbertson 2007, 576).
Culbertson also notes that civil marriage is “neither a necessary nor sufficient means to
c/Constitutional ends” (2007, 578). By reframing the question of estate tax benefits posed
in the facts of Windsor, the Court would enable a much larger proportion of queer and
non-normative people to benefit by promoting and protecting unique familial
arrangements, such as families of choice and other alternative forms of relationships that
have arisen based on individuals’ “conscience, culture, identity, and desire” (Culbertson
2007, 609).
Additionally, there would be many political and ethical advantages of the
overturning of protected marital status. I believe that such a transformation in
jurisprudence relating to marriage would drastically depart from and interrupt the patterns
of increasing assimilationist politics outlined in my first section. First, such a radical
alteration in the current trajectory of federal jurisprudence would serve as a much needed
rupture in the dominant discourse of LGB(T) organizations and advocates who have
framed their agendas around marriage equality. Such a move would prompt a great pause
and hopefully a rethinking of how mainstream LGB(T) politics have narrowly tailored
their understanding of liberty and equality around an already unjust and unequal
institution. This would likely also open up space for more radical queer political
movements to articulate more encompassing and empowering goals of autonomy, selfdetermination, and liberty for queer individuals.

35

Second, it would be a victory for activists on the front lines combatting racial
injustice and socio-economic inequality. This is because it would disallow the federal
government to utilize marital status requirements as a means to exclude people of color
and working-class people from accessing social safety-net programs, such as welfare,
unemployment benefits, and other federal programs. It would also signal a victory for
feminist advocates attempting to dismantle the public/private dichotomy and reproductive
division of labor enshrined by the institution of marriage that has long served as a barrier
to the emancipation and empowerment of women. Altogether, by moving away from a
defense of the institution of civil marriage, there would be many opportunities to begin to
break down the social, economic, and historical roots of inequality and discrimination
that have constituted marital privileges. Instead, unfortunately, the precedent established
by Windsor forecloses many of these alternative understandings of sexual and familial
liberties, further reifying a singular conception of family, life, and love.

Conclusion
The Windsor decision sheds light on a larger transformation occurring within
LGB(T) political and social movements today. The state of LGB(T) politics has become
greatly conservative, celebrating instances of inclusion and assimilation rather than
finding radical and imaginative solutions that expand possibilities for queer life, family,
and love. While heralded as a victory by many LGB(T) political players, the Windsor
decision has further entrenched and valorized a political agenda that fails to address the
pervasive oppression and violence facing the most marginalized in the queer community.
Rather than attempting to change society, gay marriage advocates and decisions such as

36

Windsor have appealed to normalcy, assimilation, and inclusion. As we read news
articles and hear stories of newly married gay couples, we often face a widespread
illusion that gay and lesbian advocates are successfully changing social norms, when in
reality they have just codified normalcy and enhanced the upward mobility of already
privileged individuals.
There is no doubt that Windsor had a substantial symbolic effect, but I believe it
symbols the wrong solution to very real problems. The lasting impact of Windsor is a
national political and legal strategy that emphasizes expanding the privileges of marital
status without addressing the underlying structures of injustice implicit within the
institution itself. As gay politics centers more and more on marriage, those on the
periphery of queer life continue to be left behind. As marriage equality inevitably
becomes law across the country, dominant social attitudes believe that queer issues have
been solved, while many marginalized queer people continue to face mass violence,
injustice, and exclusion from social goods. We need to interrogate the supposed success
of Windsor, re-centering our political action around the objective of achieving social
justice.
I believe that queer politics has the potential to radically change society and queer
communities in ways that bring about liberation, autonomy, and justice. Returning to the
sentiment and poignancy of the term “queer,” I believe there needs to be a reevaluation
and disruption of how we imagine politics, community, and identity today and how we
measure social change. Likewise, I believe there need to be more radical and fully
encompassing interpretation of Constitution values in a way that expand options for queer
individuals beyond civil marriage. In such a way, I believe Windsor was a missed
37

opportunity to develop an understanding of liberty and equality that are not hinged to
civil marriage. Instead of appealing and aspiring to the heteronormative ideals like gay
marriage, there needs to be a resurfacing of the radical queer movements that were
uncompromisingly against structures of social injustice, violence, and oppression.
Political victories such as Windsor challenge us to reconsider what is success. Jack
Halberstam calls upon us to think about “ways of being and knowing that stand outside of
conventional understandings of success” and to realize the ways in which capitalist,
heteronormative society has substantially delimited the horizon of possibility today
(2011, 2-3). We must rethink and interrogate the success invoked in Windsor in order to
open up space for more imaginative possibilities of queer ways of thinking, being, and
living.

38

References
Alimahomed, Sabrina. 2010. “Thinking Outside the Rainbow: Women of Color
Redefining Queer Politics and Identity.” Social Identities 16(2):151-168.
Aravosis, John. 2012. “Lovely marriage equality video from Maine.” America Blog,
October 2. http://americablog.com/2012/10/lovely-marriage-equality-video-frommaine.html
Bailey, Marlon, Priya Kandaswamy, and Mattie Udora Richardson. 2008. “Is Gay
Marriage Racist?” In That’s Revolting: Queer Strategies for Resisting
Assimilation (ed. Matilda Bernstein Sycamore). Berkeley: Soft Skull Press.
Ball, Carlos. 2012. The Right to Be Parents: LGBT Families and the Transformation of
Parenthood. New York: NYU Press.
--------. 2009. “This is Not Your Father’s Autonomy: Lesbian and Gay Rights From a
Feminist and Relational Perspective.” In Feminist and Queer Legal Theory:
Intimate Encounters, Uncomfortable Conversations (ed. Martha Albertson
Fineman, Jack E. Jackson, Adam P. Romero). Farnham: Ashgate.
Bernstein, Mary and Renate Reimann. 2001. Queer Families, Queer Politics. New York:
Columbia University Press.
Boellstorff, Tom. 2007. “When Marriage Falls: Queer Coincidences in Straight Time.”
GLQ: A Journal of Lesbian and Gay Studies 13(2-3):227-248.
Braven, Jess. 2013. “Historic Win for Gay Marriage.” The Wall Street Journal, June 26.
http://online.wsj.com/news/articles/SB10001424127887324520904578553500028
771488
Culbertson, Tucker and Jack Jackson. 2009. “Proper Objects, Different Subjects and
Juridical Horizons in Radical Left Critique.” In Feminist and Queer Legal
Theory: Intimate Encounters, Uncomfortable Conversations (ed. Martha
Albertson Fineman, Jack E. Jackson, Adam P. Romero). Farnham: Ashgate.
Culbertson, Tucker. 2007. “Arguments Against Marriage Equality: Commemorating &
Reconstructing Loving v. Virginia” 85 Wash. U. L. 575 (2007).
De Beauvoir, Simone. 1949 (1989). The Second Sex (trans. H. M. Parshley). New York:
Vintage.
Edelman, Lee. 2004. No Future: Queer Theory and the Death Drive. Durham: Duke UP.
Eskridge, William Jr. 2002. Equality Practice: Civil Unions and the Future of Gay
Rights. New York: Routledge.
39

--------. 1993. "A History of Same Sex Marriage.” Paper presented at Yale Faculty
Scholarship Series at New Haven, CT, January 1.
Farrow, Kenyon. 2005. “Is Gay Marriage Anti Black?” Kenyon Farrow Blog March 5.
http://kenyonfarrow.com/2005/06/14/is-gay-marriage-anti-black/
Ferguson, Russell. 1990. Out There: Marginalization and Contemporary Cultures.
Cambridge; MIT Press.
Fineman, Martha Albertson. 2009. “The Sexual Family.” In Feminist and Queer Legal
Theory: Intimate Encounters, Uncomfortable Conversations (ed. Martha
Albertson Fineman, Jack E. Jackson, Adam P. Romero). Farnham: Ashgate.
Firestone, Shulamith. 1970. The Dialectic of Sex. New York: Bantam Books.
Friedan, Betty. 1963. The Feminine Mystique. New York: W. W. Norton & Company.
Gay Liberation Front. 1987. “Manifesto” in Internet History Sourcebooks Project (ed.
Paul Halsall). Accessed 4/23/2014. http://www.fordham.edu/halsall/pwh/glflondon.asp.
Halberstam, J. Jack. Gaga Feminism: Sex, Gender, and the End of Normal. Boston:
Beacon Press
--------. 2011. The Queer Art of Failure. Durham: Duke UP.
Halperin, David. 1995. Saint Foucault: Toward a Gay Hagiography. Oxford: Oxford
University
Press.
Huffer, Lynne. 2009. “Queer Victory, Feminist Defeat?” In Feminist and Queer Legal
Theory: Intimate Encounters, Uncomfortable Conversations (ed. Martha
Albertson Fineman, Jack E. Jackson, Adam P. Romero). Farnham: Ashgate.
INCITE! Women of Color Against Violence (ed.). 2009. The Revolution Will Not Be
Funded: Beyond the Non-Profit Industrial Complex. New York: South End Press.
Joslin, Courtney G. 2013. “Windsor, Federalism, and Family Equality” 113 Colum. L.
Rev. Sidebar 156 (2013).
Kimport, Katrina. 2013. Queering Marriage: Challenging Family Formation in the
United States. New Brunswick: Rutgers UP.
King, Martin Luther, Jr. (2003 ed.). I Have a Dream: Writings and Speeches That
Changed the World. San Francisco: HarperOne.
40

Knickerbocker, Brad. 2014. “Courts pave the way for more gay marriages.” Christian
Science Monitor, February 15. http://www.csmonitor.com/USA/Justice/
2014/0215/Courts-pave-the-way-for-more-gay-marriages-video
Levinson, Rosalie Berger. 2006. “Will the New Federalism Be the Legacy of the
Rehnquist Court?” 40 Val. U. L. Rev. 589 (2006).
MacKinnon, Catherine. 2004. “The Road Not Taken: Sex Equality in Lawrence v.
Texas.” 65 Ohio State Law Journal 1081 (2004).
Moore, Mignon R. and Michael Stambolis-Ruhstorfer. 2013. “LGBT Sexuality and
Families at the Start of the Twenty-First Century.” Annu. Rev. Sociol. 39:491–
507.
Pateman, Carole. 1988. The Sexual Contract. Redwood City: Stanford University Press.
Pearson, Michael. 2013. “Supreme Court rulings on same-sex marriage hailed as historic
victory.” CNN, June 27. http://www.cnn.com/2013/06/26/politics/scotus-samesex-main/
Pedriana, Nicholas. 2009. “Intimate Equality: The Lesbian, Gay, Bisexual, and
Transgender Movement’s Legal Framing of Sodomy Laws in the Lawrence v.
Texas Case.” In Feminist and Queer Legal Theory: Intimate Encounters,
Uncomfortable Conversations (ed. Martha Albertson Fineman, Jack E. Jackson,
Adam P. Romero). Farnham: Ashgate.
Petzen, Jennifer. 2012. “Queer Trouble: Centering Race.” Queer and Feminist Politics,
Journal of Intercultural Studies 33(3): 289-302.
Polaski, Adam. 2013. “Love Wins: Supreme Court overturns Section 3 of DOMA,
restores marriage in CA.” Freedom to Marry, June 26.
http://www.freedomtomarry.org/blog/entry/ marriage-at-the-supreme-court-june26-2013.
Polikoff, Nancy D. 2012. “Two Parts of the Landscape of Family in America:
Maintaining Both Spousal and Domestic Partnership Employee Benefits for Both
Same-sex and Different-Sex Couples.” 81 Fordham Law Review (2012).
Puar, Jasbir K. 2007. Terrorist Assemblages: Homonationalism in Queer Times. Durham:
Duke University Press.
Roker, Raymond. 2008. “Stop Blaming California's Black Voters for Prop 8.” Huffington
Post, November 7. http://www.huffingtonpost.com/raymond-leon-roker/stopblaming-californias_b_142018.html

41

Rosenblum, Darren. 2009. “Queer Legal Victories: Intersectionality Revisited.” In Queer
Mobilizations: LGBT Activists Confront the Law (ed. Scott Barclay, Mary
Bernstein, Anna-Maria Marshall). New York: NYU Press.
Smith, Cherry. 1996. “What is this Thing Called Queer” In The Material Queer: A
Lesbigay Cultural Studies Reader (ed. D. Morton). Oxford: Westview Press, 227285.
Spade, Dean. 2011. Normal Life: Administrative Violence, Critical Trans Politics and the
Limits of Law. New York: South End Press.
Spade, Dean and Craig Willse. 2013. “Marriage Will Never Set Us Free.” Organizing
Upgrade, September 6. http://www.organizingupgrade.com/index.php/modulesmenu/beyond-capitalism/item/1002-marriage-will-never-set-us-free
Spindelman, Marc. 2004. “Foreword to 2004 Symposium: Equality, Privacy and Lesbian
and Gay Rights After Lawrence v. Texas.” 65 Ohio State Law Journal 5 (2004).
Stanley, Eric. 2001. “Near Life, Queer Death: Overkill and Ontological Capture.” Social
Text 29(2): 1-19.
Stopera, Matt. 2013. “40 Powerful Moments Outside The Supreme Court On The Day
DOMA Was Struck Down.” Buzzfeed, June 26.http://www.buzzfeed.com/mjs538/
40-historic-moments-outside-the-supreme-court-on-the-day-dom
Sullivan, Andrew. 2004. Same-Sex Marriage: Pro and Con, A Reader. New York:
Vintage.
Sullivan, Nikki. 2003. A Critical Introduction to Queer Theory. New York: NYU Press.
Sycamore, Mattilda Bernstein. 2008.”Introduction.” In That's Revolting! Queer Strategie
s for Resisting Assimilation (ed. Matilda Bernstein Sycamore). Berkeley: Soft
Skull Press.
Titshaw, Scott. 2013. “Immigration for Same-Sex Spouses in a Post-DOMA World.”
Huffington Post, July 26. http://www.huffingtonpost.com/scotttitshaw/immigration-for-same-sex-spouses-in-a-post-domaworld_b_3661282.html
United States General Accounting Office. 2004. Defense of Marriage Act: Update to
Prior Report. Washington, DC: US GAO. Accessible:
http://www.gao.gov/new.items/d04353r. pdf
Vaid, Urvashi. 2012. Irresistible Revolution: Confronting Race, Class and the
Assumptions of LGBT Politics. New York: Magnus Books.

42

--------. 1996. Virtual Equality: The Mainstreaming of Gay and Lesbian Liberation. New
York: Anchor Books.
Valdes, Francisco. “Queering Sexual Orientation: A Call for Theory as Praxis.” In
Feminist and Queer Legal Theory: Intimate Encounters, Uncomfortable
Conversations (ed. Martha Albertson Fineman, Jack E. Jackson, Adam P.
Romero). Farnham: Ashgate.
Warner, Michael. 2002. “Beyond Gay Marriage.” In Left Legalism/Left Critique (ed.
Wendy Brown and Janet Halley). Durham: Duke University Press.

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