Queer and Religious Alliances in Family Law Politics and Beyond

By Jeffrey A. Redding

Family law is a site of social conflict and the erasure of non-traditional families. This book explores how conservative religious and progressive queer groups can cooperatively work together to expand family law’s recognition beyond the traditional state-sponsored family. Various religious groups have shown an interest in promoting alternative family structures. For example, certain Muslim and Mormon communities have advocated for polygamy, thereby aligning with queer groups’ interest in overcoming the engrafting of monogamy into state law. Advocacy by North American religious conservatives for reforms in favor of non-conjugal families and against same-sex marriage overlaps with certain queer efforts to legitimize friendships and non-traditional families more generally.

This book explores these potential areas of queer and religious political cooperation—including limitations and principled reservations to such cooperation. It then looks at additional future arenas of queer and religious political cooperation going beyond family law.

• Language: English
• Publisher: Anthem Press
• Release date: Jul 5, 2022
• ISBN: 9781839983092

Book preview

INTRODUCTION

Nausica Palazzo and Jeffrey A. Redding

With same-sex couples having gained marital recognition in a number of prominent jurisdictions around the globe, it might appear that the struggle for the legal recognition of nontraditional families is over. But that is not the case. There continue to be families not recognized by a multitude of legal systems, including nonconjugal unions of friends or relatives, polyamorous relationships of more than two persons, and various religious families (including polygamous ones). These families embody a queer resistance to normalcy in family life as they challenge through their lived experience sexual regimes of normalization (Cossman 2019, 25) and find themselves at odds with the normal, the legitimate, the dominant (Halperin 1995, 62).

The misalignment between law and the reality of modern families continues with the effect that traditional (dyadic, heterosexual) marital families are prioritized when allocating benefits, rights, and obligations. This book explores counterintuitive ways of addressing this legal imbalance by staging an uncomfortable yet necessary conversation concerning a potentially conjoined queer–religious politics challenging common-sense (often majoritarian) norms and practices in family law. Such a politics requires looking beyond traditional allies, strategies, and discourses. We are especially intrigued by whether some religious groups might be allies in pluralizing family law in ways beneficial to queer politics. The intuition is that, when it comes to the legal regulation of intimate connections, certain religious subjectivities have more in common with those involved in queer politics than liberal politics.

A number of religious groups have shown an interest in promoting alternative family structures, which is a topos in queer activism as well. For example, with nondyadic unions, an oft-overlooked shared interest in overcoming the monogamous paradigm (commonly engrafted into state law) unites supporters of polyamory and polygamy. As a result, a common desire to overcome law’s monogamous paradigm could unite queer polyamorists located in northern California, for example, with splinter orthodox Mormon communities living in Utah.

The potential for queer and religious groups to converge has occasionally been investigated before, especially in the U.S. context. For example, Andrew Koppelman’s latest (2020) book on LGBT¹ rights and religion has perceptively intervened into the ongoing debate over whether U.S. antidiscrimination law should accommodate religious believers who object to market interactions with LGBT people. Koppelman’s argument that LGBT and religious people in the United States can and should converge on a conception of antidiscrimination law taking both LGBT and religious people and their interests seriously is a notable intervention in a saturated area of religion-state legal and political theorizing. Likewise, John Witte’s recent book (2019) provides a compelling defense of middle-ground approaches to the regulation and structuring of family relations in the modern Western state, while also speaking more broadly to how state and religious authorities in the West should coordinate with each other regarding family formation, child rearing, and charitable enterprises. His endeavor is to find moderate positions avoiding the so-called extremes of the queer left and religious right. In short, Witte is skeptical of actors on the left and the right who are putting forward radical proposals, viewing them as trying to dangerously overhaul family law, and state-religion relations more broadly.

The present collection adopts a bolder approach to framing the relationship between the two groups. While Koppelman seeks to find and articulate points of compromise (2) between LGBT and religious interests, and to end [the] war (3) between them, this collection explores points of convergence or even friendship between queer and religious family law actors. In this sense, it is not a simple armistice project. Similarly, this collection is also different than a recent (2019) collection edited by William Eskridge and Robin Fretwell Wilson (also a contributor to this volume) and their focus on dialogue and negotiation (1) between LGBT and religious communities around nondiscrimination norms. Unlike Witte’s notable skepticism of extreme political positions too, we look at the so-called margins to see what potential they hold for rethinking family law politics across the globe.

Regarding this ambitious project of looking at the margins, we rely on the work of scholars who have also previously noted a queer–religious interest convergence in family law. For instance, a similar convergence was spotted in the United Kingdom when conservatives proposed an amendment to the Civil Partnership Act of 2004 that would have expanded the status of civil partners to siblings and grandparents.² A convergence has also been noted in the area of non-dyadic unions, with some voices venturing an attempt to link the perspectives of supporters of polygamy with those of advocates of polyamory.³ Others yet have seen a potential for convergence around the introduction of alternative statuses, such as domestic partnerships.⁴ This book is an effort to foster a broader and more sustained conversation around similar issues, one that theorizes queer–religious interest convergences within a coherent analytical framework. It is ultimately an attempt to make sense of these convergences in order to better orient future conversations duly accounting for the overlooked potential for queer–religious alliance and friendship.

To work toward a coherent analytical framework, the book offers an in-depth study of past experiences and also prospective convergences. It furthermore offers an analysis of political alliance-work so as to potentially transform convergences into working coalitions and perhaps even friendships. Nonetheless, this book has no interest in offering a romanticized view of convergences. The limits or hurdles confronting political alliances or friendships must be thoroughly accounted for. The volume therefore also includes contributions criticizing and rejecting queer–religious alliances as untenable in the contemporary moment.

We imagine that one fertile terrain for convergence, alliance, and friendship is the project of fostering plural family values, different conceptions of the good life, and the value of self-authorship in family matters. That being said, some authors are worried about common animus—in other words, a kind of the enemy of my enemy is my friend politics—motivating queer–religious alliances. Hence, one thread running through a number of chapters concerns the acceptable political foundations for potential queer–religious coalitions.⁵ A second thread running through this collection concerns the question of whom to ally with. The question applies in both directions—for example, is the Human Rights Campaign really an appropriate queer interlocutor?⁶—although it is perhaps especially challenging to understand who the right interlocutor is in the religious camp. While some authors contend that religious minorities are ideal interlocutors,⁷ convergences with majority religions cannot be excluded either.⁸ Further, while some contributions focus on perhaps evident affinities between queer identities and religious progressives,⁹ others venture into the generally unchartered waters of what is traditionally considered religious conservatism.¹⁰

The geographical scope of the book is deliberately broad, albeit admittedly still limited. Western legal systems continue to predominate, and much attention is devoted to the United States and Europe. However, other authors push into the discomfort of looking at the last place that feminists and queer theorists should look for solutions to modern conflicts between democratic and religious values.¹¹ The reference here is to Israel, a state whose positioning in the West is not settled, and also a state whose commitment to secular, progressive values in family law (and beyond) is shaky.¹² The inquiry into whether queer–religious convergences might be put to work in non-Western political contexts is evidently fascinating and crucial.¹³ We look forward to future explorations of this book’s themes in contexts as diverse and crucial as Asia, South America, and Africa.

A further caveat is in order. This book is not a mere intellectual exercise whereby authors push against the boundaries of the debate on nontraditional families. Its aim is to see whether queer–religious convergences can be mobilized to increase the wellbeing of nontraditional families that continue to be invisible in or denigrated by law. The benefits to these subjectivities are tangible: Queer–religious coalitions in family law can mitigate the severe personal cost of social nonrecognition, social disregard, and social disrespect. Nonrecognition affects the way many persons live a central aspect of their life—family—and also suggests rejection by the larger society. The benefits to society are also eminently practical. A reconciliatory rather than oppositional approach to framing the relationship between religious and queer groups can counter dominant narratives of culture wars and avoid the aggrandizing of tensions. Hence, Parts II and III of this book are entitled Religious–Queer Perspectives and Queer–Religious Perspectives (respectively) to suggest that identities and politics in family law are not polarized—as stereotype dictates—but, in fact, often highly indeterminate and difficult to demarcate precisely.

Mariano Croce commences this volume with a critical remapping of common tropes historically invoked by scholars and policymakers alike when discussing religion, sexuality, and the state. Much queer theory and practice has sought refuge from ostensibly oppressive religion by making arguments about the need for law to be secular. Croce, however, alerts us to the contingency of secularism and the historical role it has played in the West of shoring up insecure and nascent political sovereigns confronting long-standing religious hierarchies and powers. Croce further describes this historical process as one having involved a shift from legal pluralism where multiple religious and secular sovereigns jostled for supremacy to one of seeming legal monism. In turn, post secularism does not necessarily entail a turn (or return) to theocracy, but rather a situation of abiding legal pluralism. To the extent then that queer politics is skeptical of monopolistic and majoritarian marriage, this politics too can be described not necessarily as religious but certainly as post-secular—that is, committed to the development of a legal plurality of recognized families and relationships. Moreover, this commitment provides a means for queer politics to envision a future robustly aligned with religious political actors also finding promise in legal pluralism. Croce closes his chapter by highlighting questions common within legal pluralism circles about the promises and pitfalls of different enforcements of pluralism, cautioning us that there is no single legal pluralism appropriate for every place and every moment. In doing so, Croce reminds us that neither queer–religious hostility nor queer–religious friendship is inevitable.

Frederick Gedicks opens Part II’s discussion of religious–queer perspectives on family law with a discussion highlighting how members of minority religions and LGBTQ persons alike have been historically harmed by claims about natural law and its ostensible requirements with regards family and marriage. Specifically, Gedicks brings attention to natural law arguments concerning marriage and their persecutory use in the nineteenth century against Mormon communities then practicing polygamy in the United States. As Gedicks points out, sectarian, sexist, and racist arguments used against Mormons in the past were part and parcel of natural law claiming about the requirements of family, marriage, and good governance alike. As a result, Gedicks argues that despite natural law’s claims to self-evident truth, transcendence, and immunity from political and cultural biases, presentism tends to suffuse it. Moreover, this problem continues with fickle and biased natural law argumentation being just as present in recent emotive debates about same-sex marriage—where claims about the evidently penetrative and heterosexually reproductive qualities of marriage were made—as it was in derogatory nineteenth-century natural law arguments about Mormon practices. While Gedicks does not explicitly advocate a political alliance between LGBTQ persons and Mormons, he does note their interest convergence in repudiating future resorts to a simplistic natural law argumentation still finding favor in influential social, political, and legal circles.

As noted above, while the book aims to debunk skepticism toward queer–religious alliance and friendship, this volume still encourages skepticism grounded in and emanating from past experience. Thus, Robin Fretwell Wilson and Rebecca Valek continue Part II by critically examining post-Obergefell proposals by religious and social conservatives to abolish marriage licenses in the United States, and to replace marriage with civil unions or contracts.¹⁴ These proposals are consistent with queer calls for abolishing marriage as a patriarchal, discriminatory institution.¹⁵ However, the two authors compellingly argue against altering the state’s relationship to marriage in such a radical way. Accepting abolition proposals poses two dangers, according to Wilson and Valek. First, these proposals fail to address thorny questions about the web of benefits now accorded to married couples in various domains (e.g., tax, social security, and employment). Second, similar proposes risk interfering with and undermining positive norms surrounding marriage, such as emotional and financial commitment and stability. In a similar vein, Wilson and Valek argue against severing religious and civil marriage with the effect of further undermining positive marriage norms that religious marriages can bolster.

Part II’s highlighting of religious–queer perspectives concludes with a contribution by Ilaria Valenzi exploring the fascinating history of the Waldensian Church. This Church is a persecuted Protestant Christian denomination dating from the twelfth century that has also been a contemporary Italian pioneer in the religious blessing of gay and lesbian couples. Valenzi describes how the Waldensian Church became the first religious denomination in Italy to officiate a same-sex union, well before its legalization in the country. This was possible in light of progressive interpretations given to biblical texts whereby family unions do not gain legitimacy by meeting certain formalities but only if they align with principles of justice and equality. Freedom of choice and the absence of situations of violence or abuse become the criteria to identify deserving relationships. This functional understanding of family, acting in tandem with a conviction that notions of family are structurally dynamic, has led to the inclusion of same-sex couples. It also creates opportunities for new alliances with additional unions defying the traditional model of family. In this regard, Valenzi describes the growing exposure of the Church to queer theology and queer studies, and an awareness within the Church of a convergence between its interests and those of queer groups. This awareness is best exemplified by a weekly church-sponsored discussion meeting called Queer Thursdays, during which young Waldensians delve into queer politics, movies, and literature.

Part III’s inclusion of queer–religious perspectives on convergences, alliances, and friendships regarding family law begins with a contribution by Beatrice Gusmano. Gusmano takes us to the Mediterranean region, and more specifically Italy, where she argues the social and legal importance of LGBTQ friendship based on the results of 15 in-depth interviews she conducted (as part of a larger research project) with LGBTQ persons in Rome. These interviewees lived in a variety of setups including platonic friend situations. Gusmano uses the Hawai’ian word and concept of ‘ohana to help illustrate how relations of care, interdependency, and sharing were crucial for her interviewees but are nonetheless neglected or even marginalized by the law. In this regard, Gusmano notes how platonic but caring friends were excluded from the list of people allowed to visit each other during the early stages of the COVID pandemic in Italy because these friendships were not legally considered stable affective unions. Gusmano further argues that efforts to achieve better legal recognition for these kinds of relationships might be a ground of potential political convergence between queer and religious groups to the extent that both are interested in the values of solidarity and redistribution. At the same time, Gusmano cautions that the religious value of charity, in particular, is a potential stumbling block for queer alliance. This is because, according to Gusmano, charity has a paternalistic motivation and is not entirely consistent with more equitable (and potentially sexual) queer relations of support and care embodied by the idea of ‘ohana.

Ayelet Blecher-Prigat and Noy Naaman next deliberate on the intriguing question of whether there could be a queer–religious friendship in Israel around the abolition of legal marriage. The peculiarity of this jurisdiction is the religious monopoly over marriage and divorce and the absence of civil marriage. Many thinkers have proposed to introduce civil marriage in Israel as a way to overcome the patriarchal implications of religious law. Yet, this chapter is the first contribution in its kind arguing that a potential solution could be the abolition of legal marriage. This reform might furthermore constitute a fertile ground for queer–religious cooperation to the extent that certain queer and religious persons alike are harmed by current legal arrangements. These include same-sex couples but also religiously unaffiliated persons, parties to an interfaith relationship (with limited exceptions), and even certain Jewish relationships that cannot be recognized under religious law. Abolishing legal marriage is of course not simple and can in practice mean quite different things. Indeed, some propose to resort to contracts to govern intimate relationships, while others propose the replacement of marriages with civil unions. Accordingly, this chapter engages with alternative proposals for a post-marriage scenario. A second relevant issue concerns whether a larger set of families should be recognized beyond romantic-sexual couples.

Nausica Palazzo then focuses on another case study concerning past and prospective queer–religious convergences around the recognition of nonconjugal couples, including committed adult friends or relatives. She describes the various family law schemes introduced by religious conservatives from 1997 onward in Hawai’i, Vermont, Alberta, Australia, Tasmania, and Victoria in order to counter the recognition of same-sex couples. By introducing regimes recognizing pairs of friends or relatives, conservative religious actors aimed to dilute the symbolic value of same-sex couple recognition. Yet, such religious actors also expanded family law’s reach in a way benefiting queer politics. Palazzo argues that similar reforms, however, have not transformed traditional family norms in a meaningful way. Furthermore, very few nonconjugal couples seem to have registered under these laws. Palazzo’s analysis thus moves to analyze what has gone wrong by focusing on two aspects. The first aspect concerns the motives behind these legal initiatives. The second aspect concerns the poor drafting of these laws, with their ongoing attachment to the model of the marital family. However, she argues that these experiences are not a hindrance to future successful convergences. She notes how certain praiseworthy motives can support future queer–religious alliances, while also describing some of the family markers future laws should refer to, rearticulate, or omit to attract less traditional families.

Finally, Christian Klesse concludes Part III by exploring the acceptable parameters of political coalitions between queer and religious groups. Generally speaking, Klesse finds no inherent problem with these kinds of coalitions and welcomes their possibility or inevitability even. Indeed, Klesse argues that supposing a forever enmity between queer and religious groups problematically reproduces assumptions that queerness is always secular, and that religion is necessarily heteronormative. However, he also cautions that queer politics necessarily embodies a commitment to not only anti-racism but also the larger value of inclusivity. Hence, according to Klesse, queer political activism should not engage in unprincipled strategizing seeking family law victories—for example, the recognition of polygamous or polyamorous relationships—where such wins are accompanied by the entrenchment of heterosexism or other regressive values. For Klesse, an overly pragmatic and problematic queer–religious politics would be exemplified by deliberate queer cooperation with religious actors opportunistically seeking to legislative alternatives to civil marriage just as this traditionally heterosexist institution is opened up (inclusively for Klesse) to same-sex couples for the first time. Similarly problematic would be efforts to legislate recognition for ostensibly progressive polyamory at the expense of stereotypically backward forms of religious (e.g., Muslim or Mormon) polygamy. To be sure, Klesse knows that coalition work always involves compromise. But, for Klesse, truly ethical queer–religious coalitions must embody a positive affirmation of queer lives and experiences rather than denigration.

Part IV looks ahead to convergences, alliances, and friendships beyond family law, including potentially shared queer–religious approaches to constitutional litigation and, then too, the constitution of communities. Opening this part, Laura Kessler offers a compelling overview of Israeli family law. She argues that the experience of Israel could reveal matters of both theoretical and practical significance to activists and scholars committed to pluralizing legal approaches to the family. In Israel, litigation by human rights lawyers, activism within religious communities by LGBTQ+¹⁶ persons of faith, and institutional competition between secular and religious legal systems have led to the reform of patriarchal doctrines profiting women’s and LGBTQ+ rights. One such creative reform is the recognition of nonmarital partnerships (so-called reputed spouses). This is instructive for the United States in at least two respects. First, it attests to how nonmarital partnerships do not threaten marriage but, rather, can be conceptualized as a way to preserve the traditional religious meaning of marriage. Second, considering the conservative turn in the Supreme Court, Kessler argues that litigation on these issues might become less frequent. Should that be the case, Israel would be an interesting reference point and illustrative of how change can be promoted by means other than constitutional litigation.

Finally, Jeffrey Redding offers a view on how convergences, alliances, and friendships between queer and religious actors might develop in the United States in the aftermath of the Trump presidency and the COVID pandemic. As Redding explains, recent religious critiques of governmental attempts to shut down churches, synagogues, and other places of worship as a result of COVID resonate in multiple ways with earlier queer critiques of governmental efforts to close gay bathhouses and sex establishments during the HIV pandemic. As a result, contemporary pandemic politics could generate interest in queer–religious alliances and, moreover, not just in the family law realm. Indeed, pandemic debates have given renewed attention to the importance of communities (religious and sexual alike) and the importance of (rights of) association which, for Redding, are broader concerns than debates about the importance of family formation and recognition.

To conclude, we believe that investigating queer and religious interests is a worthwhile project when contemplating the future of family law. We see several advantages in having queer and religious factions sitting at the same table and discussing shared values and interests, aware that such discussions embody a worthwhile potential not only to recalibrate state policy but also to reduce corrosive social and political tensions looming over increasingly fragile societies. In many ways, queer–religious relations and collaborations are a missing link in research on family policy and have the potential to force us to radically rethink the goals and means of family law politics.

This volume is a collection of original essays first presented at an international workshop at the Fondazione Bruno Kessler–Center for Religious Studies in Trento, Italy in 2020. The workshop was organized within a project funded by the University of Trento and by Fondazione Bruno Kessler and with partner organizations at the University of Illinois College of Law, Università La Sapienza di Roma, Universiteit Antwerpen–Faculteit Rechten, Erasmus School of Law, and the International Consortium of Law and Religion Studies (ICLARS). The conceptualization of this volume started in 2019 and then evolved over the years and in the course of surviving a worldwide pandemic, convinced as we were that the questions it poses are not simply still relevant but more relevant than ever.

Crises like the health emergency that the world is facing compel us to come up with bold and imaginative plans for action. Social tensions have also increased under COVID. We believe that this book’s creative approach to pressing legal and policy questions has the potential to reduce tensions and build increased mutual understanding. The contributing authors believe likewise, and we are grateful to them for their reflections. We would especially like to acknowledge their excellent engagement with the book’s thorny questions, and their ability to navigate with us in these unchartered times during which physical encounters were not possible and communication was far more complex and discontinuous than usual. We further wish to thank the artist Evan Honerkamp for permission to reproduce his moving work A Certain Person’s Burden of Tomorrow on this book’s cover. We take this book as an opportunity to reflect critically and more seriously on queer–religious friendship and to invite future research on its questions and answers.

Notes

1 Koppelman uses LGBT instead of LGBTQ. In this book, we have retained authors’ personal formulations of this contested political assemblage.

2 See, for example, Barker (2014) .

3 See, for example, Gher (2008) .

4 See, for example, Redding (2010) .

5 See Klesse and Palazzo in this collection.

6 For a critique of this well-known U.S. organization,see Robinson (2018) .

7 See Gedicks and Valenzi in this collection.

8 See Redding, Kessler, Blecher-Prigat and Naaman, and Palazzo in this collection.

9 See in this collection Valenzi for a progressive denomination (the Waldensian Church) and Kessler for progressive forces within religious communities traditionally conceived of as conservative (e.g., Judaism and Islam).

10 See, for example, Blecher-Prigat and Naaman and their examination of convergences with (among others) Jewish persons harmed by the current religious monopoly in Israel over marriage and divorce. See also Gedicks and his discussion of certain Mormon groups.

11 Kessler (176) in this collection.

12 See, for example, Puar (2007 , 16–17).

13 For a more optimistic view, see Blecher-Prigat and Naaman in this collection.

14 See Wilson and Valek in this collection. See also Palazzo (2018 , 210–15).

15 See, for example, Nussbaum (2010) , and Tebbe and Widiss (2010) .

16 See note 1.

References

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Cossman, Brenda. 2019. Queering Queer Legal Studies: An Unreconstructed Ode to Eve Sedgwick (and Others). Critical Analysis of Law 6, no. 1: 23–38.

Eskridge, William N., Jr., and Robin Fretwell Wilson, eds. 2019. Religious Freedom, LGBT Rights, and the Prospects for Common Ground. Cambridge: Cambridge University Press.

Gher, Jaime M. 2008. Polygamy and Same-sex Marriage—Allies or Adversaries within the Same-Sex Marriage Movement. William and Mary Journal of Women & Law 14, no. 3: 559–603.

Halperin, David. 1995. Saint Foucault: Towards a Gay Hagiography. Oxford: Oxford University Press.

Koppelman, Andrew. 2020. Gay Rights vs. Religious Liberty?: The Unnecessary Conflict. New York: Oxford University Press.

Nussbaum, Martha C. 2010. A Right to Marry. California Law Review 98, no. 3: 667–96.

Palazzo, Nausica. 2018. The Strange Pairing: Building Alliances between Queer Activists and Conservative Groups to Recognize New Families. Michigan Journal of Gender and Law 25, no. 2: 161–237.

Puar, Jasbir. 2007. Terrorist Assemblages: Homonationalism in Queer Times. Durham: Duke University Press.

Redding, Jeffrey A. 2010. Queer–Religious Potentials in US Same-Sex Marriage Debates. In Queer Theory, Law, Culture, and Empire, edited by Robert Leckey and Kim Brooks, 122–36. London: Routledge.

Robinson, Nathan J. 2018. The ‘Human Rights Campaign’ Has Totally Betrayed Its Constituents. Current Affairs: A Magazine of Politics and Culture, September 7, 2018. https://www.currentaffairs.org/2018/09/the-human-rights-campaign-has-totally-betrayed-its-constituents.

Tebbe, Nelson and Deborah A. Widiss. 2010. Equal Access and the Right to Marry. University of Pennsylvania Law Review 158, no. 5: 1375–449.

Witte Jr., John. 2019. Church, State, and Family Reconciling Traditional Teachings and Modern Liberties. New York: Cambridge University Press.

Part I

MAPPING THE CONCEPTUAL TERRAIN

Chapter 1

SECULARISM, SAME-SEX RELATIONS, AND LEGAL PLURALISM

Mariano Croce

This chapter aims to explain the historical and contemporary conceptual terrain over which queer and religious actors are operating, especially in relation to the state’s recognition of