Academic journal article Vanderbilt Law Review

The Supreme Court, Visibility, and the "Politics of Presence"

Academic journal article Vanderbilt Law Review

The Supreme Court, Visibility, and the "Politics of Presence"

Article excerpt

Jane Schacter has made a critical contribution by elaborating the meaning and potential consequences of the Court's holding in Romer v. Evans.l At the center of her account is the thought-provoking suggestion that the Court's opinion enables a visibility or "presence" for gays and lesbians in the extended realm of the "political."2 While I salute her illumination, I am less certain about whether to share her optimism. In this Comment, I will explore the latter question by looking beyond the decision in Romer to other cases involving group-based civil rights. I will probe the effects of Supreme Court decisionmaking on the "politics of presence," which I define as a society-wide conversation about the political consequences of conceiving people as members of groups rather than as unmarked individuals.3 I will argue, in particular, that the Court's decision in Shaw v. Reno4 (and its progeny) has strong negative consequences for the visibility of minority political interests, and for the development of a politics of presence that comprehends issues of race. I will conclude by considering how this interpretation might be reconciled with the view Professor Schacter takes of Romer.

Professor Schacter argues that "legally and socially coerced . . . invisibility" is a central feature of gay and lesbian existence, and an important cause of gay inequality.5 By striking down Amendment 2, a measure that exacerbated coerced invisibility, the Court in Romer enabled gays and lesbians to appear to a greater extent in the extended political domain. This appearance itself is salient, because of its potential to ameliorate political inequality and raise public consciousness; it is also the first step toward engendering a broader debate about the consequences of this group's, and other groups', "presence" in politics. I agree with Professor Schacter's account of coerced invisibility as constituting a unique feature of gay and lesbian existence; but for the purposes of this Comment I am going to give a different reading to this group's dilemma about visibility in politics, what Eve Sedgwick has called a "universalizing" rather than a "minoritizing" construction.s In the ongoing conversations, negotiations, and entanglements that constitute the extended sphere of politics, most socially marginalized groups struggle with questions of visibil ty and presence:7 How visible is our group? What acts affect the extent to which we are seen, and the images according to which we are understood? What are the personal costs associated with efforts to attain greater visibility? In answering these questions, many groups confront a fact faced early and often by gays and lesbians: group members are not the only ones who control the way, or the extent to which, the group is seen in the extended world of the political. A range of social and institutional forces shape questions of group visibility and image; these forces affect the ability of group members both to make claims for themselves and to explore a politics that gives a more central place to group membership. Among these characterizing forces, and central to our discussion here, is the Supreme Court.

How does the Court influence group-based appearance and visibility? Sometimes it does so simply by projecting an image of a particular group. When the Court in Harris v. Forklift Systems, Inc.8 rejected the serious psychological injury requirement in sexual harassment cases,9 it projected an image of women as impeded, but not wholly compromised, by sexualized treatment. In such cases, the Court's opinion helps to create an epistemological backdrop, contributing to what Professor Schacter calls "the ongoing normative enterprise that is a central part of our collective life."lo Such decisions make it easier for people to see certain images of women and more difficult for them to see others.

Other cases affect not the particular way that group members are seen, but whether they are seen as group members at all. …

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