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The Cultural Power of Law and the Cultural Enactment of Legality: The Case of Same-Sex Marriage

Published online by Cambridge University Press:  27 December 2018

Kathleen E. Hull
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Abstract

This paper examines the legal consciousness of same-sex couples with respect to marriage. Data from an interview-based study of 71 members of same-sex couples reveal strong consensus on the desirability of having samesex relationships legally recognized, and considerable variation in couples’ attempts to enact marriage culturally through various practices, including the use of marriage-related terminology and public commitment rituals. I argue that some of these efforts to enact marriage culturally should also be read as attempts to enact legality in the absence of official law. The findings from this study challenge the idea that marginalized social actors will tend toward a resistant legal consciousness: Rather than seeking to avoid and evade legality in their everyday lives, most same-sex couples seem to embrace legality for its practical and symbolic resources, even as they stand “against the law” in their opposition to the exclusion of same-sex couples from the institution of legal marriage. Approaching marriage from the perspective of same-sex couples, this research demonstrates that the legal and cultural aspects of marriage are deeply intertwined. Cultural enactments of marriage enact legality even in the absence of official law, and many actors ascribe to law a cultural power that transcends its specific benefits and protections, the power to produce social and cultural equality.

Type
Symposium in their Own Words: How Ordinary People Construct the Legal World
Information
Law & Social Inquiry , Volume 28 , Issue 3 , Summer 2003 , pp. 629 - 657
Copyright
Copyright © American Bar Foundation, 2003 

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References

Bumiller, Kristin. 1988. The Civil Rights Society. Baltimore, Md.: Johns Hopkins University Press.Google Scholar
Engel, David M. 1984. The Oven Bird's Song: Insiders, Outsiders, and Personal Injuries in an American Community. Law and Society Review 18: 551–82.Google Scholar
Eskridge, William N. Jr. 1993. A History of Same-Sex Marriage. Virginia Law Review 79: 1419–513.Google Scholar
Ewick, Patricia, and Susan, S. Silbey. 1992. Conformity, Contestation, and Resistance: An Account of Legal Consciousness. New England Law Review 26: 731–49.Google Scholar
Ewick, Patricia, and Susan, S. Silbey. 1998. The Common Place of Law: Stories from Everyday Life. Chicago: University of Chicago Press.Google Scholar
Feeley, Malcolm. 1979. The Process Is the Punishment: Handling Cases in a Lower Criminal Court. New York: Russell Sage Foundation.Google Scholar
Gerstmann, Evan. 1999. The Constitutional Underclass: Gays, Lesbians, and the Failure of Class-Based Equal Protection. Chicago: University of Chicago Press.Google Scholar
Goldberg, Carey. 2001. Quiet Anniversary for Civil Unions. New York Times, 31 July.Google Scholar
Herman, Didi, and Carl, Stychin, eds. 1995. Legal Inversions: Lesbians, Gay Men, and the Politics of Law. Philadelphia: Temple University Press.Google Scholar
Human Rights Campaign. 1996. What Is Lesbian and Gay American Thinking? The First National Survey of Self-Identified Lesbian and Gay Americans. Washington, D. C.: Human Rights Campaign.Google Scholar
Kaplan, Morris B. 1997. Sexual Justice: Democratic Citizenship and the Politics of Desire. New York: Routledge.Google Scholar
Laumann, Edward O., John, H. Gagnon, Robert, T. Michael, and Stuart, Stuart. 1994. The Social Organization of Sexuality: Sexual Practices in the United States. Chicago: University of Chicago Press.Google Scholar
McCann, Michael W. 1994. Rights at Work: Pay Equity Reform and the Politics of Legal Mobilization. Chicago: University of Chicago Press.Google Scholar
Merry, Sally Engle. 1990. Getting Justice and Getting Even: Legal Consciouness Among Working-Class Americans. Chicago: University of Chicago Press.Google Scholar
Nielsen, Laura Beth. 2000. Situating Legal Consciousness: Experiences and Attitudes of Ordinary Citizens about Law and Street Harassment. Law and Society Review 34: 1055–90.Google Scholar
Phelan, Shane. 2001. Sexual Strangers: Gays, Lesbians, and Dilemmas of Citizenship. Philadelphia: Temple University Press.Google Scholar
Sarat, Austin. 1990 The Law Is All Over”: Power, Resistance, and the Legal Consciousness of the Welfare Poor. Yale Journal of Law and the Humanities 2: 343–79.Google Scholar
Sarat, Austin, and William, L. F. Felstiner. 1989. Lawyers and Legal Consciousness: Law Talk in the Divorce Lawyer's Office. Yale Law Journal 98: 1663–88.Google Scholar
Sarat, Austin, and Thomas, R. Kearns. 1993. Law in Everyday Life. Ann Arbor: University of Michigan Press.Google Scholar
Stiers, Gretchen A. 1999. From This Day Forward: Commitment, Marriage, and Family in Lesbian and Gay Relationships. New York: St. Martin's Press.Google Scholar
Stychin, Carl. 1995. Law's Desire: Sexuality and the Limits of Justice. London: Routledge.Google Scholar
Trubek, David M. 1984. Where the Action Is: Critical Legal Studies and Empiricism. Stanford Law Review 36: 575–622.Google Scholar
Wald, Michael S. 1999. Same-Sex Couples: Marriage, Families, and Children. Stanford, Calif.: Stanford Institute for Research on Women and Gender; Stanford Center on Adolescence.Google Scholar
Yngvesson, Barbara. 1988. Making Law at the Doorway: The Clerk, the Court, and the Construction of Community in a New England Town. Law and Society Review 22: 409–48.Google Scholar