Academic journal article Washington and Lee Law Review

The Genuine Article: A Subversive Economic Perspective on the Law's Procreationist Vision of Marriage

Academic journal article Washington and Lee Law Review

The Genuine Article: A Subversive Economic Perspective on the Law's Procreationist Vision of Marriage

Article excerpt

I. Introduction

From the metaphor of the closet1 to that of the three dollar bill, tropes2 of fraud, deception, and mimicry seem to trip off the tongue when the subject of a queer sexual orientation arises.3 Over the last decade, and particularly within the last three years, marriage traditionalists have increasingly relied on a particular rhetoric of deception-counterfeiting-to convey what in their view is a species of public fraud: same-sex marriage and its close approximations, civil unions and domestic partnerships. Indeed, counterfeiting rhetoric has become so common in the legal controversy over same-sex marriage that its sheer pervasiveness nearly renders it invisible.

In May 2003, Marilyn Musgrave, United States Representative and cosponsor of the original Federal Marriage Amendment (FMA), publicly declared that a federal marriage amendment was necessary because "[t]he traditional values Americans hold are being traded in for counterfeit marital unions."4 Representative Musgrave was not the first person involved in the same-sex marriage debate to coin the analogy between same-sex marriage and counterfeiting. Rather, its vintage in that debate may be traced at least as far back as the mid-90s. In 1995, Robert Knight, Director of the Concerned Women of America's Culture and Family Institute, deployed the counterfeiting trope to describe same-sex marriage;5 one year later, Gary Bauer, former President of the Family Research Council, testified that same-sex marriage is "a counterfeit that will do great harm to the special status that the genuine institution [of marriage] has earned."6 Nor is Representative Musgrave the last to link subversive numismatic practices with non-normative sexual and affective relationships. More recently, counterfeiting has become a routine way to describe same-sex marriage and its imitative approximations, civil unions and domestic partnerships, as well as the so-called artificial reproduction that occurs in the context of a same-sex relationship.7

Where does this counterfeiting language come from and what does it signify? More importantly, what work is it doing in the legal controversy over the extension of marital rights to same-sex couples? On one level, to compare same-sex marriage to a counterfeit makes sense in light of the fact that sexual minorities and counterfeit articles share a common language. The federal criminal statute that targets counterfeiting, 18 U.S.C. § 472, imposes penalties on those who either "pass," or attempt to "pass," counterfeit currency in the United States.8 With respect to sexual minorities, Professor Kenji Yoshino has amply documented just how pervasive the language and ideology of passing is for gays and lesbians.9 This Article will return to this idea that same-sex couples are like counterfeit currency because artificial reproductive technology is increasingly allowing them to pass for straight-part of the reason, this Article submits, why procreation has suddenly become the dominant rationale in same-sex marriage litigation today.

At the same time, to compare same-sex marriage to a counterfeit makes about as much sense as does the claim that same-sex marriage will lead us ineluctably down the slippery slope to incest. In a prior article, this author argued that the slippery slope trope, "from same-sex marriage to incest," does not hold up because incest is definitionally imprecise-just where is it that we are slipping to when we slip into incest?10-and because in many ways we have already slipped. ' ' Here, the author turns instead to the counterfeiting trope that legal actors, among others, have recently deployed to describe the public fraud that, in their view, same-sex marriage represents. The counterfeiting analogy to same-sex marriage warrants close attention for two reasons. First, and more narrowly, the counterfeiting analogy does not hold up because, quite simply, same-sex marriage is not fooling the public and same-sex couples are not, at least technically, passing for straight when they marry each other. …

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