This is the first in a set of five interviews included in the SLR Special Series on the Marriage Equality Debate entitled Queering the (Court)Room.
Introduction
Dr. Swethaa S. Ballakrishnen is Associate Dean for Faculty Research and Development and Professor of Law at the University of California, Irvine. Primarily oriented within a socio-legal praxis, they write and teach about law’s connections to actors, institutions, and relationships at the periphery, broadly defined. Their work has appeared in, among other journals, the Law and Society Review, Law and Social Inquiry, International Journal of the Legal Profession and South Asia. Their award-winning first book, Accidental Feminism (Princeton University Press 2021), explores the case of unintended gender parity in Indian professional spaces. They hold law degrees from the National Academy of Legal Studies and Research and Harvard Law School, and a PhD in Sociology from Stanford University.
In this remarkable interview, Dr. Ballakrishnen reflects on a range of issues associated with what they call the “utopic possibilities” of queer movements. Speaking from at-once a deeply personal, yet academic, vantage point, they highlight the precarity of the public-private argument that dominated the hearings. The interview highlights the bind with working with legal institutions that are structurally resistant to negotiating queerness and other forms of alterity, while at the same time using the legal right of marriage as means to access other important entitlements of an equal citizenship. The piece also brings out the importance of what one might call contingent victories – of using marriage as a temporary refuge to make claims of kinship, love, care, and repair even as the queer movement struggles for more disruptive possibilities. In this conversation with our young editorial board, Dr. Ballakrishnen’s responses show the potential of intergenerational conversation and allyship in building movements that challenge the status quo.
Interview
The marriage equality petition marks a shift in the kind of claims made. Navtej was centred around privacy or the right to ‘be left alone.’ But marriage equality can be read as a much more public claim for equality and dignity. How do you see this change in the manifestation of queerness from a private affair to a more public affair? What changes and what remains constant in this shift from private commitment of queer relations to public, state legitimised ones? Simultaneously, how do you see queerness contributing to the existing conversations on marriage (such as those on marital rape) by showing how marriage is an extremely public and social affair, and not as private as it is made out to be?
I don’t know if I think about it as a shift, necessarily. At one level of analysis, the distinction of incrementality might matter – i.e., first to think of rights at the individual level, and then to explore the possibilities of recognition at the public or social level. But jurisprudentially and morally, I think the two are more intertwined. Critical theorists have long argued that laws of intimacy are socially rooted even when coded as uniquely personal, ahistorical and/or apolitical [1], and social movements have repeatedly operationalized this claim. In particular, the movements for queer rights – globally, not just in India – have revealed the inherently uneasy and fallible dichotomy between public and private rights. A private right to intimacy, if truly at par with other similar rights, necessarily holds within it the right for such intimacy to be witnessed in its public recognition. Thinking about sanctioned violence within marriages is another extension of this right of recognition: the flip of wanting public recognition for positive social relations is the right for such recognition also for negative relations. Put another way, the right to freedom in intimate spaces, if thought about expansively, should hold within it the right to be free of violence within these spaces. Public and private cannot be used as convenient legal armour to engender the very violence they purport to shield their inhabitants from.
One way to consider this might be to acknowledge that the logic of private and public has never been about a singular right, but rather, about its extensions. Marriage could seem like a – neutral! – private right to love, but it is also a right that implicates the safety of its constituents by leaving them without much recourse when they make public its inner workings. Marriage could, similarly, seem like just a private right to love, but it is also a gateway right and site to other rights, because of the ways in which societies across contexts are constructed to offer marriage primacy. If you build a Matryoshka rights paradigm, where every core right extends from the heteronomy (think succession, tax, rights to property, etc.), it follows that what seems like a right to love is in fact an ask for equality across a much more nuanced legal architecture. If the logic of a private right is truly unequivocal, then an extension to its natural end – irrespective of whether it is expressly stated or discussed – ought to be that public validation and rights follow from it.
At the same time, institutionalization is not without costs. Queer unions have had a history of meaning-making outside hetero-patriarchy, and public sanction along the lines of normative rights necessarily offers a liberal exit – something Ratna Kapur would call a “fishbowl” outcome rather than true and expansive freedom from the rights-industrial complex [2]. A more holistic augmentation would be to use this current moment in queer jurisprudence to think more expansively about intimacy and law’s commitments to its subjects.
In Gender Regimes and the Politics of Privacy: A Feminist Re-Reading of Puttaswamy vs Union of India, you discussed the idea of a ‘market-friendly’ queer who is acceptable to hetero institutions, mostly upper class, upper caste, cis-gay men. The fight for marriage equality has also come under criticism for focussing predominantly on same-sex marriage, overshadowing petitions that highlight experiences of transpersons and excluding conversations on alternative kinship models. How do you see this playing out in the context of marriage equality? Do you think the court will only recognise those unions that are in the nature of marriage (ignoring other forms of queer unions)? Can legal institutions be altered to accept ‘chosen queer – and other – unions’?
The texture of equality gained on terms that were never made to include those at the margins, is, by nature, jagged and compromised. So, in short, no, legal institutions will never be altered to reinforce alterity because they have no incentive to do so. In our book, Kalpana Kannabiran and I make the larger argument that the state is invested in perpetuating what we call a distinct “gender regime” where its institutionalized power (through legislation, executive action, and the judiciary alike) reinforces specific gendered, classed, and caste-organized orders [3]. These are of course not restricted to marriage – we argue that the state has investments in creating (and destroying) a range of ideal femininities, masculinities, sexualities, and religiosities – but the deployment of this power, usually under the guise of a neutral paradigm, is at the core of its systemic violence. And although it extends to other institutions, marriage is a uniquely potent site of legal contestation and subordination because its presumed neutrality allows the state to interfere in private social and familial spaces while doing the work of the political (think, for example, at the line of ‘love jihad’ cases!).
To the extent equality is done and rights are given, it should not surprise us that they follow in the outlines of the limiting pre-existing and prefigurative paradigms. For example, Obergefell guaranteed the fundamental right to marry for same sex couples in the United States [4], but in giving queer couples the same rights as their non-same sex peers, it also buckled down on the parameters of what it meant to have those rights by defining marriage very traditionally to be an embodiment “of the highest ideals of love, fidelity, devotion, sacrifice, and family” [5]. The implications this victory has had for a range of non-marriage unions and communities of care (queer and non-queer alike) has been at least as striking as the power it has given to those who are now included in the new paradigm of normativity [6].
This question is related to the previous one. In Accidental Feminism (2021), you reflect on the potentiality of non-intentional feminisms, such as the one you identify in corporate law firms. You begin the book with the provocation, “Can Feminism be Accidental?” How may we think of this provocation in the case of queerness? The fight for marriage equality is of course, an intentional movement, yet it sticks ultimately to working within the heteronormative institution of marriage. Even if the Court were to return a favourable verdict, many may argue that the same will not effect a structural transformation in the deeply capitalist, neoliberal, patriarchal institutions of law and society. You ask in your book, “is parity feminism?” (xvi). May we then ask, “is marriage equality queer enough?”
Queer utopias are never going to be able to rely on the limits of a state or legal institution to give them the outcomes they deserve [7]. At the same time, these institutions have also produced an entire ecosystem of actors and respondents who recursively reinforce their scripts. As I argue in forthcoming work, intimate contracts – and the movements that have structured them – have necessarily fashioned themselves to be legible to law, and the queer strains of intimacy that have not followed this script remain invisible to law’s heteropatriarchal sight [8]. Historically, the rules of love were tied to their function of reproduction with “faith, fidelity, and desire” deemed “alike to be directed to the goal of reproducing the church, the ecclesiastical commonwealth and the male line” [9]. An adjacent strain (as reinforced by our long history of marriage and dissolution laws) was that love – at least in the eyes of the courts – could not necessarily only be in the abstract and had to be rooted equally in the sacred and profane both when it was in existence and when it was extinguished [10]. As a result, the responding critique has, despite new dynamics, remained strong in its relationship to the sacred; subversion to the legal constructions of love has taken the same vein of the very thing it has opposed. Specifically, the legal stakes of queer relation – used here to signal alterity beyond sexual choice and experience – have necessarily responded to heterosexual logics by proving that those from the margins could, too, enjoy the continuingly flawed institutions once reserved for the majority.
But – just as I argue in Accidental Feminism about the possibility of unlikely subversion in a related context – it would be hard to say that such subversion is without merit. To the extent the goal of alterity – or, what Peter Goodrich would call a “minor jurisprudence” – is to expand the pie, no matter its flavour, everyone deserves a piece, including the vegan gluten-intolerant subject who is asking for a slice on principle. The first non-legal marriage with public sanction was in 1834 when Anne Lister, dubbed “the first modern lesbian,” married Ann Walker at the Holy Trinity Church in York, England. You might know these characters from the historical drama Gentleman Jack. What you might not know is that Ann Walker was deemed unsound, her writing was retroactively deemed a hoax, and her marriage was not seen as valid [11]. It would be another 136 years before the first “legal” queer marriage of two men would be recorded by a clerk in the US, in 1970 – but it happened by a filing accident, not an intentional act [12]. It would be another 45 years before this accident would earn legal sanction and be converted into intentional law in Obergefell, changing what was then a statute-based state right to marry into a national fundamental right. So this is a long struggle for rights, in every context, and the victories are meaningful.
I’m old enough to remember the ways in which legal discourse around queer possibility in India was not socially and institutionally authorized for any group of the population in any sort of way. It is also not lost on me – as a queer body, partner, and family member – that visibility and ease of navigation across contexts is a precious thing [13]. Even as I theoretically dismiss marriage as a macrostructure made to enshrine property rights, I cannot ignore that those same structures also offer access to safety, stability, and growth. Even if I am prone to theorizing against marriage as the most valuable goal for the queer movement, and even if it might not be something I actively want, I am able to recognize its power as a gateway right to a range of other social, economic, and political equalities I do ground my stakes in. And acknowledging these paradoxes feels essential as one considers and calibrates whether something, as you ask, is “enough”.
This is a slightly personal question and you may choose not to answer it. Reading the preface to your book, I was deeply touched by the incident you recall about your mother learning the pronunciation of the word “queer” and performing a certain kind of allyship (xvii-xviii). In the context of the marriage-equality hearings, we have seen parents of queer persons support the movement. Drawing from your personal experience, as well as your scholarship on movement building, what do you think is the power of such inter-generational allyship?
Thank you for reading and engaging with the book. That was a vulnerable story to share (both because it could easily have been read as patronizing and/or ill-representative) and I’m grateful it had resonances. I think all allyship is crucial, and that intergenerational allies offer a particularly potent strain of solidarity because they remind us of the recursive circularity of the work we are doing, and the shoulders on which it is being done. I’m also particularly partial to more invisible or illegible versions of this – the family member who doesn’t have the words or the rhetoric but can offer support is only one example– because it forces us to reconcile our own standings and priors. When people cannot speak at our exact registers, what kind of meaning-making can happen when we come together? It is not always easy, but I think there are sticking points [14] here that can be generative: to be able to accept that we are not the first folx to have ever thought of something, and to reimagine – this is particularly true for the queer archive where so much is left invisible in plain sight [15] – that there is a solidarity from ancestors known and unknown that guide our capacities for resistance and repair [16].
At the same time, while I think sitting with the difficulty or discomfort of connecting with unlikely allies is important, I’m also wary of romanticising difficult community for the sake of it or accepting solidarity that does not serve in the name of meaning-making. These connections are a blade and a balm both and it is an ongoing and iterative process to decipher those distinctions.
You are also a scholar of law and globalization, and one of the editors of the wonderful volume Invisible Institutionalisms (2021). It could be argued that the rights-discourse aspect of the queer movement in India today, is part of a wave of legal reforms that began in the West (think, Obergefell v Hodges). And yet, as you might warn us, it is crucial to de-centre global hegemonies and look at legal globalization as a polycentric process. How do you believe the marriage equality petition – in the way it is being claimed, argued and represented – adds to thinking about and theorising this polycentricity?
That is a very generous reading of the work – thank you. You raise an important point about polycentricity and the ways in which movements and contexts merge with the life-course of the judicial archive. As you distinguish, there are so many vast differences across sites and yet there is this isomorphism that follows a path dependency of a mainly Western scripted normative rights project. This is not to give the West prime entitlement over the construction of all rights [17]. Yet, the locus of postcolonial normativity, especially about individual rights, is largely traced to a discourse that is predominantly Western. And this has pushed to the wayside a range of more nuanced constructions of equity and freedom that are more site-specific (and which may well be better serving). In one of my favourite chapters from the book (with Sara Dezalay), Shamnad Basheer cautions against the institutional tendency to superimpose mainstream models of rights on the informal economy, arguing that formalization processes are likely to work to the detriment of their origin communities. Basheer was referring to the IP regime and its relationship to innovation in the informal economy in India, but I think that juxtaposition has theoretical gold beyond that example. If we are to chase expansive freedom rather than the constrictive fishbowl of rights [18], then paying attention to local contexts matters, and it might serve us to think beyond the rights discourse and its limitations.
At the same time, this is not to dismiss the usefulness of rights discourse as a tool with its own meaning and logic and value. Recently, I was preparing to speak at a dear friend’s wedding and asked her why it mattered to her to get married. Her response – which was that there was something inexplicably powerful about knowing she could not be denied a license to marry the woman she loves – remains informative as I think about rights. The marriage did not make the love more real, but the rights made its navigation more legible, and for bodies that have not had such social acknowledgment, this recognition has resonances beyond the bare right.
Now, the queer community is not united in thinking that marriage is a right that we should have fought for – we have, after all, had so many other ways of kin-making, and this is especially true for communities that do not rest primarily on the dyadic nuclear family model. But, as I mentioned earlier, regardless of one’s personal proclivities to rights and/or marriage, it is hard to ignore the reach that these institutional scripts have. At the same time, remembering all that is not included in success or victories is the very basis of any critical project. Perhaps one way in which we can actively de-centre hegemonies is by approaching a rights framework as a door to more, rather than as an end in itself. We have much to gain when we hold contradictions closely and allow them to inform each other. If there is one thing to take away from a queer lens, it is the reminder that the periphery is always central and crucial, not merely additive. Queerness also allows us to move beyond rigid logics of the normative to imagine outside the outlines we have inherited. We could be served by consistently keeping our focus on the excluded, the peripheries, the invisibles; and, somehow, simultaneously also holding space for utopic possibility.
In your recent article Law School as Straight Space (2023), you speak about queer marginality in the legal profession and legal education. The marriage equality petition has put the spotlight on a number of legal professionals from the LGBT+ community, from the lead petitioner Utkarsh Saxena to individuals like Dr Menaka Guruswamy. We also saw queer collectives from law schools across the country issue a collective statement condemning the BCI’s stance on the issue. In some schools the live-streamed court proceedings were also live-streamed in classrooms. From your vast ethnographic experience, as also theorising about marginality in professional and academic spaces, could you tell us what, in your view, this means for queering the legal profession? In fact, we plan to call our series “Queering the (Court)Room”. What do you make of this, how do you interpret this?
Speaking of utopic possibility and the critical project, this is an important time to reflect on the inclusion gaps that are inherent in our profession, while also simultaneously recognizing the places where those inclusion gaps are most pertinent. The queering of the legal profession is not just about having more queer people visible, it is about also changing what it means to think about the core and periphery within the system – who do we think of as ideal? Who do we think of as needing to accommodate? Our struggles, even if they seem specific, are collective. To truly queer the profession, we need to be starting from the periphery – however that might be embodied – rather than grudgingly accommodating it [19]. Making the classroom a site of radical contestation offers an important model for such change because law schools are essential sites of prefiguration. Even if someone did not sign a petition or watch the live streaming, there is a certain degree of socialization that shapes us, which we cannot escape. And, for those who identify within or adjacent to the community, there is nothing more powerful than that kind of visibility and acknowledgment of kin. In the long run, both these mechanisms have implications for the construction of the profession because they help re-imagine and alter its cultural scripts.
There were moments in the court proceedings when a lot of problematic - sometimes even trans- and queerphobic - statements were made, questions asked, including by the petitioners’ counsel (such as the frequent use of the word “transgenders” or referring to intersex and non-binary persons as a “theoretical category”). These statements were mostly made due to a lack of sensitisation. In your article entitled Anti/Aunty as Critical Method: From Gendered Resistance to Soft Grace (2023), you reflect on negotiating with similar discomforts and questions of self-reflexivity etc. How do you think we understand this in the context of the vocabulary used during the hearings? In a related vein, the focus on vocabulary often also invites charges of wokeism. How do you respond to that whole narrative?
I struggle with language gaps and lapses for reasons I have already mentioned here – which is that their violence makes more insular those who are already in a minority. Perhaps a personal example might be illustrative – I started to publicly identify as nonbinary a few years ago and started using they/them pronouns, and it has been revealing to witness the range of discomfort and distancing that has accompanied it. One way of thinking about it is that there is a lack of sensitization and that if I were only to kin-make with those who knew exactly how to name my current identity, I might lose a lot of community that knows other valuable parts of me [20]. At the same time, there is violence and a sense of deepening isolation that comes along with misidentifying – especially if the slip is not something that is legitimated by other standards as “wrong.”
I write about the work of this blasé discrimination in other contexts [21], but I mention it here because I think an important distinction for me is how power and contextual authority and intimacy rest with all of it. In public record (e.g., a descriptive bio), I will always ask for a correction, because the written record feels important to set, for lack of a better word, ha, straight. In interactions, I am less likely to correct a pro bono client who misgenders me (because representation is about them, not me) or a barista in a non-routine coffee shop (because it is a singular interaction and unlikely to be relevant – similar to them mispronouncing or misspelling my name). But – and this is context and culture and language specific - if it is an intimate relation, or someone who has more power than I do, or a setting where gender-based honorifics are likely to routinely come up in interactions, I am likely to nudge a correction (or at least silently note the distancing it is producing). This is particularly true of professional contexts, like the classroom or court, where one’s descriptive identity is central. In these settings, corrections feel even more necessary because honorifics are so common and having the violence of an interactional misgendering happen over and over again can throw one off their game and make an already uneven playing field worse. This is why, despite having empathy for the sensitization argument, and space in my everyday for kin-making across these language gaps and woke-spectrum distances, I find it hard to extend that to institutional settings like the courtroom or classroom, where there are clear hierarchies of power and the performative politics have stakes beyond just viewing the exchange as a language slip.
The judgment in the present case has been reserved and is expected to be out soon. Irrespective of the judgment, what do you think the marriage equality petitions and hearings mean for the queer movement, and how we think about questions of love, desire, sexuality, kinship and marriage more broadly?
Processes are, by definition, grander, more generative containers for change than outcomes. Outcomes are rigid, cardinal, fixed. Processes offer us generative possibility, queer parallels, and the promise of imagination. When a thing is not over yet, we can consider all its potentialities more clearly than when it has been fully realized – and that is exactly what these hearings and petitions (and all of the rhetoric and deliberations that have surrounded them) have offered us. If it is an unfavourable outcome for the movement, alchemizing our disappointment into constructive repair will be crucial. If the outcome is a favourable one, how we conquer the complacency that might follow holds as much importance as the victory itself. In all, no matter the outcome, the important timescapes for our attention and consideration are what precede and follow the judgment. The outcome is a tool, just like rights can be; the proof of real reward is what we do with it.
Thank you again for your thoughtful questions and the opportunity they offered to engage with these important issues. So much of utopic possibility rests in these petri dishes of (intergenerational!) exchange and generous sight. I appreciate it deeply.
End-Notes
[1] See MDA Freeman, ‘Towards a Critical Theory of Family Law’ (1985) 38(1) Current Legal Problems 153. See also Kalpana Kannabiran and Swethaa S Ballakrishnen, Gender Regimes and the Politics of Privacy: Feminist Re-Readings of Puttaswamy v. Union of India (Zubaan 2021) for the particular extensions this framework has for the Indian context.
[2] See Ratna Kapur, Gender, Alterity and Human Rights: Freedom in a Fish Bowl (Edward Elgar Publishing 2018). See also, in review of this rights-industrial complex, Swethaa Ballakrishnen, ‘Review of Gender, Alterity and Human Rights, by Ratna Kapur’ (2018) 27(1) Feminist Legal Studies 2019.
[3] Kalpana Kannabiran and Swethaa S. Ballakrishnen, Gender Regimes and the Politics of Privacy: A Feminist Re-Reading of Puttaswamy vs. Union of India (Zubaan 2021).
[4] Obergefell v. Hodges [2015] 135 S. Ct. 2584 (5-4 majority).
[5] ibid (majority opinion by Kennedy J).
[6] For an illustration of these inequalities and the implications they have had on non-scripted unions, see Melissa Murray, ‘Obergefell v. Hodges and Nonmarriage Inequality’ (2016) 104 California Law Review 1207.
[7] Note that I borrow here from Davina Cooper’s concept of utopia as legal possibility and attitude. See Davina Cooper, Everyday Utopias: The Conceptual Life of Promising Spaces (Duke University Press 2014).
[8] Swethaa S. Ballakrishnen, ‘Kanoon’s Sarange: Goodrich and the Non-Minor Jurisprudences of Law and Love’, manuscript under review.
[9] Peter Goodrich, ‘Laws of Friendship’ 15(1) Law & Literature 23, 48.
[10] For example, in his majority opinion in Obergefell, Justice Kennedy references marriage as a “sacred and private matter” and that “no union is more profound than marriage,” for it allows “two people become something greater than once they were.”
[11] In fact, the first plaque in their honor would not be till 2018 – 184 years later – and because it was not a legal marriage, read: “Gender-nonconforming entrepreneur. Celebrated marital commitment, without legal recognition, to Ann Walker in this church. Easter, 1834.” This wording would later be criticized as not mentioning sexuality (although, perhaps it is a more accurate representation perhaps, since we don’t know if that title was given to Ann Walker or assumed retroactively) and it was changed to a year later (in 2019): “Anne Lister 1791–1840 of Shibden Hall, Halifax / Lesbian and Diarist; took sacrament here to seal her union with Ann Walker / Easter 1834.” This change was seen as important because of its edit on gender identity, but the more subversive readings is the edit to take away “without legal recognition.” This reframing away from the law focuses instead on the two beautiful souls who “took sacrament” in their own hands and in the eyes of powers that were bigger than them, to seal their union. Notice how the words have everything – and nothing – to do with the law.
[12] The first queer “marriage” of two men in the United States happened because a clerk allowed for a marriage license to be filed in Blue Earth County, Minnesota and a judge – Gregory Anderson – declared the marriage of gay activists and lovers Jack Baker and Michael McConnell to be “in all respects valid.” This would become the earliest same-gender marriage to ever be “recorded” in the public files of any civil government.
[13] On subversive navigation and inter-related queerness of the body and self, see Swethaa S. Ballakrishnen, ‘Anti/Aunty as Critical Method: From Gendered Resistance to Soft Grace’ (2023) 46 South Asia 135 <https://www.tandfonline.com/doi/full/10.1080/00856401.2023.2141449>
[14] On stickiness more generally, as well as the positionally of discourse, I borrow from Sara Ahmed’s work on stickiness. See, e.g., Sara Ahmed, ‘Affective economies’ (2004) 22(2) Social Text 117.
[15] On the queer archive and mining it with utopic possibility, see Anjali Arondekar, For the Record: On Sexuality and The Colonial Archive in India (Duke University Press 2009).
[16] On reparative possibility of returning to a range of queer archives, see Danish Sheikh, ‘Staging Repair’ (2021) 25 Law Text Culture 144.
[17] For a philosophical deliberation about rights as Western, see Panikkar, Raimundo, "Is the notion of human rights a Western concept?" (1982) Diogenes 30(120) 75-102.
[18] See Kapur (n 2).
[19] See Swethaa S Ballakrishnen, ‘Rethinking Inclusion’ (2023) Law and Social Inquiry (forthcoming).
[20] See, Ballakrishnen (n 13) and for the methodological implications across another contexts, see also Swethaa S Ballakrishnen, ‘Vulnerability Politics and Its (Out) Of Place in the Academy’ in Lynette Chua and Mark Fathi Massoud (eds.), Out of Place: Power, Person, and Differences in Socio-legal Research (Cambridge University Press 2023).
[21] Swethaa S Ballakrishnen ‘Identity in Divisive Times: Lawyering, Islam, and Blasé Discrimination’ in Aziza Ahmed and Gui-Uriel Charles (eds.), Handbook on Race, Racism and Law (Edward Elgar Publishing 2023).
The questions for this interview were prepared by Manhar Bansal and Niveditha K. Prasad on behalf of the SLR Editorial Board.
Read the other pieces in Queering the (Court)Room
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