Living (Partially) Outside the Law

Several years ago, when my son was in middle school (in a suburb close to New York City), he was required to fill out numerous forms. There were spaces for his mother’s first name, her last name, her work phone, and her home phone, and for his father’s first name, last name, work phone, and home phone. Even in that so-called enlightened town, where there’s a critical mass of children of gay and lesbian parents, the forms assumed that children have one mother and one father, and also that both parents (where divorce is prevalent) share one address.

Lewis placed Nancy’s name in the space that requested information for his “mother,” and where it asked for information about “father,” he crossed out the word “father” and wrote in “mother,” with my information next to it.

Lack of recognition remains common, even in relatively liberal areas of the United States, where a child’s birth certificate lists the child’s mother and father, and wedding licenses specify the names of the bride and groom —even in some places where same-sex marriage is now legal. As we grow more formally accepting of difference, the “heterosexual assumption” still operates in bureaucratic realms, and in relation to institutions of the “straight state”–schools, post offices, legal institutions, and the like. Same-sex parents and their children must grapple with non-recognition in the eyes of the law.

Numerous lawsuits are challenging this hegemony. In California, Iowa, and Massachusetts, legally married lesbians and gay men can now put both of their names on their child’s birth certificate. Others states will soon follow. But the piecemeal nature of things—same-sex marriage is legal in some states and not in others, and only some states legally recognize both same-sex parents—in a country that so mobile, where people regularly cross state lines in search of work and love, leads to some cringe-worthy moments.

When Sarah Viren moved from Iowa, where she and her partner were legally married, to Texas, where their marriage was not recognized, she was no longer eligible to receive health insurance through her spouse’s job. As she writes ruefully in The New Inquiry, “We are told we should be grateful for the changes that are taking place, but we just get tired of having to explain ourselves. Often the bureaucracy of it exhausts us.”

Even as long-term coupled queer people, including those with children, enter what anthropologist Gayle Rubin has called the “charmed circle” of sexuality, and are accommodated by the dominant culture, non- and misrecognition persists.


No wonder the right to marriage has been the predominant issue for middle class LGBTQ people in the United States: our culture, marriage signifies and is a precondition for belonging. Marriage is highly valued in contemporary American culture, signifying loyalty, desirability, permanence, and a host of other attributes.It’s not simply a matter of legal recognition, of course. By identifying with marriage, and gaining access to its cultural and legal benefits, same-sex couples become legible, understandable, and normative.

And yet misrecognition, and cultural ambiguity, remains common.

Recently, at a suburban New Jersey hospital, my girlfriend was ushered inside to see me after I underwent minor surgery. “You can go and visit your mother now,” the nurse told me, as I lay in a post-anesthesia stupor. I am two years older than her girlfriend, and while she is youthful in appearance, I certainly do not look old enough to be her mother. It wasn’t an anomaly. My previous partner and I, also roughly the same age, were frequently mistaken for sisters—even though we do not look at all alike. Lesbian mothers describe interactions with strangers, and even at doctor’s offices, and queries about “who is the father?”

Heterosexuality continues to be inscribed in dominant understandings of kinship, making queer families unintelligible. When queer intimacies are read through a heterosexual lens, sexual and affectional ties are transformed into biological ones.

“If you’re not real,” Judith Butler writes, “it can be hard to sustain yourselves over time; the sense of delegitimation can make it harder to sustain a bond, a bond that is not real anyway, a bond that does not ‘exist.’” Recognition is a basic human need. Non-recognition, or relatedly, mis-recognition, can lead to marginality and to non-personhood—lack of legitimacy.

Today, even as queer families are admitted grudgingly into many central institution, homosexuality has not yet been fully integrated; a thorough understanding of the fundamental moral equivalence between hetero and homo intimacies has not yet occurred—despite the growing (though incomplete) public affirmation of, and acceptance of legal protections for such relationships, and those of their children.

Full legal and cultural incorporation is a slow, winding process, perhaps.


But what if queer families remain unintelligible because they can never be fully assimilable, translatable into a dominant heteronormative rubric, as some queer theorists suggest? Do we really want to be just like them?

I am sympathetic to such critiques; living outside the law, particularly for families with children, is nearly impossible. Kids attend school, and because of this, perhaps to a greater extent than their parents, they must abide by the rules of the dominant culture. We cannot afford not to engage with the political institutions that structure our lives, distributing health insurance, codifying family law, and governing birth and death. We cannot live outside the law.

But at this moment of transition, when same-sex parents and their children are moving, albeit slowly and incompletely toward full equality and incorporation, even as we seek to be fully recognized, perhaps it’s only right that we should be reminded of what it feels to be outlaws.

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