Craig Willse and Dean Spade, “Freedom in a Regulatory State?: Lawrence, Marriage and Biopolitics”

Background: This piece was published in the Widener Law Review in 2005. Willse and Spade have collaborated a lot, often writing about LGBT social movements, most recently with “Sex, Gender, and War in an Age of Multicultural Imperialism,” forthcoming this year in QED: A Journal of GLBTQ Worldmaking.

–Craig Willse is now assistant professor in Cultural Studies at George Mason University, where he is faculty sponsor for GMU Students Against Israeli Apartheid. Willse co-edited Beyond Biopolitics with Patricia Clough. Willse’s book A Diagram of Surplus Life: Housing, Race, and Capital (currently under contract) “examines how housing insecurity becomes organized as an object of knowledge and intervention.” Willse is also interested in “the ways in which racism and poverty are made productive in the context of urban neoliberal service and knowledge industries, including social services and social sciences.”

Dean Spade is associate professor at Seattle University School of Law (Administrative Law, Poverty Law, and Law and Social Movements).  Spade was also a Williams Institute Law Teaching Fellow at UCLA Law School and Harvard Law School, teaching classes related to sexual orientation and gender identity law and law and social movements. In 2002, Spade founded the Sylvia Rivera Law Project, a non-profit law collective that provides free legal services to transgender, intersex and gender non-conforming people who are low-income and/or people of color. Spade is currently the co-editor of the online journal, Enough, which focuses on the personal politics of wealth redistribution. Spade’s most recent book is Normal Life: Administrative Violence, Critical Trans Politics and the Limits of Law (2011).

Argument: This law review article contextualizes the Lawrence v. Texas (2003) decision that is lauded as the “biggest victory yet” by LGBT legal organizations and advocates. Instead, Willse and Spade argue that Lawrence and its subsequent contribution to the “gay agenda” fighting for “marriage equality” actually represents a lack in commitment to radical political change.

            –Represents a reduction in the demands of what was once “a movement against violent and coercive systems of gender and sexual regulation”; it actually maintains these regulatory systems as LGBT legal organizations (which are the most well-resourced) tie the Lawrence victory to a “broader framing of a ‘gay agenda’ that focuses on marriage rights and fails to meaningfully oppose state regulation of sexuality, gender, and family structures” (311).

            –There must instead be a shift from focusing on formal legal equality (primarily benefits white/wealthy gay men and lesbians) to more radical deregulation of gender, sexuality, and families. The key to this shift is understanding regulatory mechanisms, and “moving away from understanding marriage as simply an enclosed institution that either includes or excludes and towards understanding marriage as a technology of power that organizes all parts of a population in terms of access to resources necessary for survival” (312).

Lawrence and Disciplinary Politics: To take attention away from this association of Lawrence to Hardwich, the implications of Lawrence that are emphasized by the majority are its “newly-validated and more palatable” gay identity àEmphasis on parallels to “incentivized heterosexual family norms.”

            —Lawrence over Hardwich: seen as a victory in terms of disciplinary power on an individual level, however actually doesn’t challenge the mechanics of discipline itself. Instead, can be read as “loosening of certain disciplinary mechanisms—legal holds on some sexual acts—because those mechanisms are no longer sufficient or efficient for managing bodies and resources (316).

            –Demonstrates how power is regrouping in different techniques that address queer as disciplined subject and ensure the domination of some queers

Biopolitics and Gay Marriage: current debates about “gay marriage” represent an inability to move from a disciplinary to a biopolitical model. Consolidation of legitimacy/power in organizations whose priorities are far from radical origins of Stonewall era.

            –Marriage as biopolitical mechanism, therefore “‘Marriage equality’ itself is an ironic term, given that the legal designation of marital status serves to differentiate between and to privilege select family structures and sexual choices” (318).

            –Same-sex marriage does not actually challenge the institution of marriage, but redirects/intensifies biopolitical functions of the state (marriage historically challenged by feminists in a biopolitical capacity as exploitative to women, particularly through the targeting of low-income and women of color in welfare reform and “healthy marriage promotion”)

Raising the Stakes: Potential frameworks for understanding discrimination: discipline targeting individual subjectà remedy as individual rights, or systemic creation of unevenly distributed life chances/biopolitical modelà remedy is redistribution/critical view of status quo that removing barriers to an individual’s access to rights or benefits will not be enough (LGBT movement that also struggles for racial/economic justice)

            –They argue that the current LGBT movement uses individual rights model: “takes the status quo as a given, and argues only for formal equality within the existing distribution of life chances” (328). However a broader framework for queer and trans rights would make redistribution a central goal: the more “just” approach would give resources to those who experience the greatest impact of gender/sexual orientation oppression (329).

Question: Willse and Spade argue that there is a lack of understanding of how marriage functions “as a mechanism for organizing populations in relation to resources for life chances,” that is contributing to the disconnect between a just movement to oppose gender and sexual orientation oppression and the “LGBT movement” as it is currently functioning in the U.S. How would these arguments go over in U.S. public discourse? Where else are biopolitical mechanisms disguised by individual “disciplinary” activism, and how can knowledge of biopolitical functions help us work toward more “just” social movements overall?


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