Abstract
In addition to their official functions, state-sponsored social institutions, such as prisons and civil marriage, serve a more covert function, fostering and sustaining largely unnoticed social ideology. Because such institutions are to some degree coercive, and because the ideology thus promoted is designed to constrain channels of free expression, First Amendment protection is implicated, and can legitimately be applied to the social institution as a whole (not just as it impacts particular individuals). This view is defended through an examination of the ideological implications of the legal landscape governing marriage, as it affects transgendered individuals.
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Notes
- 1.
David Liss, The Ethical Assassin (New York: Ballentine Books, 2006), 89.
- 2.
See Louis Althusser, “Ideology and Ideological State Apparatuses,” in Lenin and Philosophy and Other Essays, ed. Louis Althusser (New York & London: Monthly Review Press, 1971), 127–186.
- 3.
Althusser, 138, 142.
- 4.
Liss, 92.
- 5.
Ibid., 319.
- 6.
See, e.g., Kate Bornstein, Gender Outlaw: On Men, Women, and the Rest of Us (New York: Vintage Books, 1995; originally publ., Routledge, 1994), 3, or some of Dean Spade’s comments in the documentary film, Boy I Am, prod. Sam Feder, dir. Sam Feder & Julie Hollar, 72 min., Women Make Movies, 2006.
- 7.
Schenck v. U.S., 249 U.S. 47, 52 (1919).
- 8.
Brandenburg v. Ohio, 395 U.S. 444, 447 (1969).
- 9.
See, e.g., Claudia Card, “Against Marriage and Motherhood,” Hypatia, Vol. 11, No. 3, (1996): 1–23.
- 10.
Thus, in Abington v. Schempp, 374 U.S 203, 212 (1963), an establishment clause case striking down mandatory morning Bible readings in Pennsylvania and Maryland public schools, the majority quotes – apparently with approval – the Maryland plaintiffs’ characterization of the situation. As atheists, Madeleine and William Murray complained that the policy “threatens their religious liberty by placing a premium on belief as against non-belief and subjects their freedom of conscience to the rule of the majority; it pronounces belief in God as the source of all moral and spiritual values, equating these values with religious values, and thereby renders sinister, alien and suspect the beliefs and ideals of [the Murrays]”.
Similarly, in Lee v. Weisman, 505 U.S. 577, 592–593 (1992), rejecting the constitutionality of a school-sponsored invocation at graduation, Anthony Kennedy observed for the majority that: “there are heightened concerns with protecting freedom of conscience from subtle coercive pressure in the elementary and secondary public schools… Our decisions in Engel…and…Abington … recognize…that prayer exercises in public schools carry a particular risk of indirect coercion. The school district’s supervision and control of a high school graduation ceremony places public pressure, as well as peer pressure, on attending students to stand as a group or, at least, maintain respectful silence during the Invocation”.
- 11.
See Jonathan Ned Katz, The Invention of Heterosexuality (Chicago: University of Chicago Press, 2007; originally publ. 1995).
- 12.
Anonymous v. Weiner, 50 Misc.2d 380, 270 N.Y.S.2d 319, 322 (NY Sup. Ct., 1966).
- 13.
Defrauding whom? The unwitting spouse? The general public? How, exactly?
- 14.
Hartin v. Director of the Bureau of Records, 75 Misc.2d 229, 347 N.Y.S.2d 515 (NY Sup. Ct. 1973).
- 15.
In re Anonymous, 57 Misc.2d 813, 293 N.Y.S.2d 834, 837 (Civ.Ct.1968).
- 16.
Anonymous v. Anonymous, 67 Misc.2d 982, 325 N.Y.S.2d 499 (NYC Civ. Ct. 1971); B v. B, 78 Misc.2d 112, 355 N.Y.S.2d 712 (NY Sup. Ct. 1974).
- 17.
M.T. v. J.T., 140 N.J. 77, 355 A.2d 204, 205 (NJ Super. Ct. 1976).
- 18.
Ibid., 83.
- 19.
Ibid., 87.
- 20.
RuthAnn Robson, “A Mere Switch or a Fundamental Change? Theorizing Transgender Marriage,” Hypatia, Vol. 22, No. 1 (Winter, 2007): 58–70.
- 21.
Kate Bornstein. Gender Outlaw: On Men, Women, and the Rest of Us. (New York: Vintage Books, 1995; originally publ. by Routledge, 1994), 62.
- 22.
Ibid., 125–128.
- 23.
Ibid., 118–119.
- 24.
M.T. v. J.T., 87.
- 25.
Littleton v. Prange, 9 S.W.3d 223 (Tex. App. 1999).
- 26.
Ibid., 224.
- 27.
Ibid., 231.
- 28.
For a discussion of these details and further citations, see Phyllis Randolph Frye and Alyson Dodi Meiselman, “Same-Sex Marriages have Existed Legally in the United States for a Long Time Now,” Albany Law Review, Vol. 64 (2000–2001): 1031–1071. (My thanks to Jacob Hale for first drawing my attention to the post-Littleton cases in Texas.)
- 29.
In re Estate of Gardiner, 273 Kan. 191, 42 P.3d 120 (2002).
- 30.
Ibid., 213.
- 31.
Ibid., 214.
- 32.
See Skinner v. Oklahoma, 316 U.S. 535, 541 (1942), in which marriage is categorized as “one of the basic civil rights of man” and a “basic liberty”. As such, the right to marry is a “principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental,” and therefore “implicit in the concept of ordered liberty, and thus, through the Fourteenth Amendment [due process clause], become[s] valid as against the states,” Palko v. Connecticut, 302 U.S. 319, 325 (1937), (Cardozo, J., majority) This principle was reaffirmed in Loving v. Virginia, 388 U.S. 1, 12 (1967).
Robson makes the same point more briefly (Robson, 62), crediting Julie A. Greenberg, “When Is a Man a Man, and When is a Woman a Woman?” Florida Law Review, Vol. 52 (2000): 762.
- 33.
Gardiner, 215.
- 34.
In re a Marriage License for Nash (2003) not Reported in N.E.2d., WL 23097095, Ohio App. 11. See also the pre-DOMA denial of a name-change petition, In re Ladrach, 32 Ohio Misc.2d 6, 9, 513 N.E.2d 828 (Probate Ct. 1987), and a similar more recent case, In re Maloney (2001) not reported in N.E.2d, WL 908535, Ohio App. 12 Dist.
- 35.
Kantaras v. Kantaras, 884 So.2d 155, 29 (2nd Dist. Ct. App. 2004).
- 36.
Bornstein, 121.
- 37.
For a possible example of this reasoning at work, see the military discharge case, Hoffburg v. Alexander, 615 F.2d 633 (1980).
- 38.
Leslie Feinberg, Stone Butch Blues (San Francisco: Firebrand Books, 1993); Trans Liberation: Beyond Pink and Blue (Boston: Beacon Press, 1999).
- 39.
Alluquére Stone, “The Empire Strikes Back: A Posttranssexual Manifesto,” Camera Obscura, Vol. 10, No. 2 (May 1992): 150–176.
- 40.
Janice Raymond, The Transsexual Empire: The Making of the She-Male (Boston: Beacon Press, 1980).
- 41.
Schenck, 52.
- 42.
United States v. Carolene Products, 304 U.S. 144, 153, n.4 (1938). While there is no formal policy of heightened scrutiny in First Amendment cases generally (unlike equal protection or due process cases), the Supreme Court effectively endorsed such a policy in cases with free exercise implications for three decades, starting with Sherbert v. Verner, 374 U.S. 398 (1963), until it abandoned the practice of requiring the government to provide “compelling” justifications for free exercise infringements in Employment Div., Dep’t. of Human Resources of Oregon v. Smith, 494 US 872 (1990). That case, however, has been a subject of controversy, and it is not clear just how long it will serve as precedent. Compare, for example, Anthony Kennedy’s remark that “there are heightened concerns with protecting freedom of conscience free expression cases,” just 2 years later in Lee v. Weisman (discussed in note 7 above).
- 43.
Nash, 12.
- 44.
Anatole Broyard, “Portrait of the Inauthentic Negro,” Commentary, July 1950, 57.
- 45.
Bliss Broyard, One Drop: My Father’s Hidden Life – A Story of Race and Family Secrets (New York: Little Brown, 2007). For an equally thought-provoking commentary from the other side of the passing divide, see Adrian Piper, “Passing for White, Passing for Black,” Transition, No. 58 (1992): 4.
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Nunan, R. (2010). Social Institutions, Transgendered Lives, and the Scope of Free Expression. In: Golash, D. (eds) Freedom of Expression in a Diverse World. AMINTAPHIL: The Philosophical Foundations of Law and Justice, vol 3. Springer, Dordrecht. https://doi.org/10.1007/978-90-481-8999-1_14
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