Editor’s Note: Boston University Law Review Annex is Boston University Law Review‘s online publication featuring symposia, essays, perspectives, and student notes.
Online Symposium
Beating Hearts: Abortion and Animal Rights
The Boston University Law Review Annex presents our online symposium on Sherry F. Colb and Michael C. Dorf‘s Beating Hearts: Abortion and Animal Rights. This symposium comprises blog-style posts responding to issues raised in Professors Colb and Dorf’s book.
Situational Ethics and Veganism
Sherry Colb and Michael Dorf’s Beating Hearts: Abortion and Animal Rights is an essential work, exploring an unexpected overlap between two seemingly unrelated areas of ethics and the law. They make strong affirmative cases for the pro-choice and animal rights sides of those two respective debates, showing why it is possible – indeed, morally required – to believe simultaneously that abortion should not be banned and that consuming animal products is immoral.
Although their arguments are important on their own merits, it is useful to emphasize that this book is in a very real sense a riposte, an answer to an accusation that goes like this: Vegans cannot truly believe in their stated reason for refusing to participate in animal cruelty. If they did, they would also be anti-choice, because the same moral imperative that supposedly motivates vegans – revulsion at the thought of inflicting pain and death on beings that have feelings and that have the right to live their lives – would require vegans to reject abortion as well.
Anti-Abortion Pro-Lifers and Animal Protection Pro-Lifers Have a Golden Opportunity to Work Together
I’d like to begin by thanking Sherry and Michael for writing Beating Hearts. There are so many important overlaps between abortion and animal protection, and they inform each other in profound ways. For years Peter Singer was a voice in the public wilderness doing this—so it is very good to have their work pushing this kind of conversation forward.
It was reading Peter Singer which converted me to animal protection, though I would go on to find even more persuasive support for it in my own normative tradition: Roman Catholicism. (I wrote a book on this called For Love of Animals: Christian Ethics, Consistent Action.) I’ve been anti-abortion since I found out what abortion was, but I became a pro-life feminist when I learned about the history of abortion-rights activism.
The Value of Existence
One does not read Beating Hearts passively. I found myself agreeing often, disagreeing often, and sometimes doing both at the same time. Just as frequently, the book made me reexamine my views from a perspective I had not considered before. For example, prior to reading the book, I had not explored the basis for my belief that causing the death of a living being is a morally significant act. The authors (with a post-mortem assist from Epicurus) have seen to that deficiency. This forum seems an ideal place to push that discussion a bit further.
Locating identity over time is tricky and gets to the essence of personhood, which is central to both the abortion and animal rights debates. Why is painless killing morally wrong? Or, asked another way: On what basis can one claim an interest in continued existence? The answer depends on whether one believes that selfhood stays fixed from moment to moment or whether identity over time is merely an organizing principle and that each experienced instant is independent. The latter position was propounded most famously by the Greek philosopher Epicurus, who argued that “Death is nothing to us, seeing that, when we are, death is not come, and when death is come, we are not.” Under Epicurus’ view, ceasing to exist has no consequence for the individual to whom it happens. Painlessly and instantaneously taking a life therefore has no moral relevance since the dead person simply ends from one moment to the next. Since the deceased no longer exists and did not suffer at the moment of death, no harm attaches to the act of killing.
Of Abortion and Animals: The Promise and Peril of Legal Rights
It is my pleasure to participate in a conversation about Sherry Colb and Michael Dorf’s Beating Hearts: Abortion and Animal Rights. Among its many virtues, the book beautifully delivers on a central premise: namely, that given the moral centrality of sentience, we can learn a great deal about animal rights by thinking about abortion, and vice versa. This is difficult, fraught terrain, a reality that Colb and Dorf candidly acknowledge. They treat their subjects with rigor, care and compassion.
I want to focus my remarks on the law side of the legality/morality divide that Colb and Dorf so deftly probe. On the one hand, the book tells a limits-of-law story, one that I find quite compelling. But the abortion/animal rights juxtaposition also helps us to think about the promise of law—and legal rights in particular—to promote social change under sub-optimal circumstances; that is, under circumstances involving a backdrop of deeply entrenched social hierarchies.
The Sentience Criterion
Sherry F. Colb* and Michael C. Dorf†
We are very grateful to the editors of the Boston University Law Review for organizing, and to Professors Buchanan, Camosy, Cassuto, and Tuerkheimer for participating in this online symposium on our book Beating Hearts: Abortion and Animal Rights. We are also deeply humbled by the too-kind praise that the contributors to the symposium bestow on our book. To avoid simply repeating what our interlocutors say more artfully than we can, in this essay, we focus mostly on areas of disagreement. However, we agree with a great many of the insightful observations that the symposium contributors elaborate, including some of the critical commentary. Had we read their analyses before the book went to press, no doubt it would have been better for the rethinking and revising they would have engendered.
Readers of this symposium issue who have not read Beating Hearts may find themselves in something like the position of a classics scholar trying to reconstruct the views of a pre-Socratic philosopher whose works are known only through fragments discussed by others. At best, one can hope for an incomplete understanding. Accordingly, we begin with a brief summary of the main ideas of our book.
Online Symposium
When God Isn’t Green
The Boston University Law Review Annex presents our online symposium on Jay Wexler’s When God Isn’t Green: A World-Wide Journey to Places Where Religious Practice and Environmentalism Collide. This symposium comprises blog-style posts responding to issues raised in Professor Wexler’s book.
Comments on When God Isn’t Green
Sarah Schindler*
Thank you for the opportunity to participate in the symposium and provide comments about Jay Wexler’s great new book, When God Isn’t Green. Given that Jay is both a humorist and a serious legal scholar with a penchant for taking trips, it should come as no surprise that this book reads like a mix between a travel guide, a humorous ethnography, and an adventure memoir. In addition to raising important questions about conflicts between two important, competing issues, Jay provides vivid imagery of his trips overseas. I especially appreciated the image of Jay sitting at a bar drinking with a cat.
In this essay, I’d like to make three small points that struck me as I was reading the book. First, I’d like to situate the book within a larger body of scholarship about the cumulative impact of small harms. I’d then like to talk about how big (or small) the cumulative harms that he’s addressing in the book really are. I’ll conclude with a brief word on animal welfare.
Reconciling God and Green
Reviewing Jay Wexler, When God Isn’t Green: A World-Wide Journey to Places Where Religious Practice and Environmentalism Collide (2016)
John Copeland Nagle*
Jay Wexler found the perfect excuse to travel the world and get his bosses to pay for it. Here’s his itinerary. He journeyed to Guatemala, where the harvesting of palm branches for Palm Sunday worship services was destroying the yellow-eared parrot; Mumbai, where idols immersed in rivers leach toxic chemicals into the water; the National Eagle Repository, where the federal government collects bald eager feathers to be used by Indian tribes in sacred ceremonies; Singapore, where Taoists burn joss paper to please and appease the ghosts of their ancestors; Taiwan, where Buddhists beliefs encourage the mercy release of animals to improve one’s kharma; and Barrow, Alaska, where Inupiat people hunt bowhead whales for a mixture of religious, ceremonial, subsistence, historical, and cultural reasons. The two common themes are “places where religious practice and environmentalism collide,”1 and lots of occasions to post on TripAdvisor.
When God Isn’t Green:
Some Thoughts on the Thoughts of Nagle and Schindler
Jay Wexler
What a pleasure it is to discuss my book with two such talented and creative scholars as John Nagle and Sarah Schindler, first at a live mini-symposium and now online. Even in the few short pages allotted here, Nagle and Schindler have raised so many interesting points that I couldn’t possibly address them all. In particular, Nagle’s suggestion that allowing wind farms to kill bald eagles but not allowing Native Americans to do the same “deserves a better explanation” and Schindler’s query about the relative ranking of religious practice and food consumption are so challenging and complex that I think it’s better to let them stand as is rather than hazard some half-baked theories of my own. Instead, I will focus my comments on three sets of issues that find their way into both Nagle and Schindler’s comments—namely (1) the cumulative nature of environmental harms; (2) the choice of regulatory and other options that government might choose from when dealing with religious practices that harm the environment; and (3) the worth of travel scholarship generally.
Online Symposium
Wedlocked: The Perils of Marriage Equality
The Boston University Law Review Annex is proud to host this online symposium on Katherine Franke‘s Wedlocked: The Perils of Marriage Equality. This symposium comprises blog-style posts responding to issues raised in Professor Franke’s book. The symposium has its own page here.
Wedlocked: The Perils of Marriage Equality
The Author Meets Her Readers
Katherine Franke*
You write a book and you wonder: “will anyone read it?” This Boston University Law Review Symposium on Wedlocked answers my question. Not only did “someone” read the book, but those “someones” are some of the scholars I admire most, and they took the time and thought to engage Wedlocked’s arguments in this symposium. Thank you to each of the scholars who participated in this symposium, thank you to Professor Linda McClain for inviting their participation, and thank you to James Tobin, the Online Editor for the BU Law Review, for providing a home for this conversation about the virtues and perils of marriage equality.
One of the things I appreciate most about the symposium’s contributions is the diversity of views they offer. Far from a round of applause, the participants take the book’s arguments seriously and give them serious critique. Of course, this book invites that kind of critical engagement, for it is far from a kind of post-Obergefell victory lap. I left that project to others. Instead, Wedlocked comes at the question of marriage rights for same-sex couples by asking a set of uncomfortable questions. Are there any lessons today’s marriage equality movement could learn from the experiences of another marginalized community that celebrated the right to marry for the first time as part of a larger civil rights project? Are there any costs, or externalities, of nesting a notion of freedom or equality in the institution of marriage? What does it mean for lesbian and gay people to elaborate a more free and equal form of citizenship through the institution of civil marriage, a form of state licensure? And how might we understand something about the differences between racism and homophobia by examining the way in which marriage has been an enormously effective tool to rebrand homosexuality?
Marriage Equality and Marital Supremacy
Serena Mayeri*
Katherine Franke’s Wedlocked: The Perils of Marriage Equality is the culmination of almost two decades of trenchant scholarship challenging the primacy of marriage in LGBT advocacy and in American law and society. Since the late 1990s, Franke has mined the history of African Americans’ postbellum encounters with marriage for cautionary tales about the hazards of legal recognition. In both contexts, Franke argues, winning marriage rights risks exposed individuals and families to invasive regulation, stifling sexual freedom and experimentation, suppressing alternative arrangements for the provision of care and support, and demeaning those who cannot or do not wish to marry.1
The parallel between Reconstruction-era freedpeople and twenty-first century gay and lesbian Americans, as Franke is careful to acknowledge, is imperfect; it is discontinuity as much as similarity that makes the analogy fruitful. Most strikingly, the juxtaposition of these two cases spotlights how marriage equality advocates have succeeded, with astonishing alacrity, in normalizing what was once unthinkable. Franke argues that the marriage equality movement achieved this feat in part by inadvertently mobilizing the very ideological tropes and material realities that have rendered marriage at best an elusive ideal and at worst a rationale for the oppression and marginalization of African Americans.
Perils of Marriage and Neoliberal Politics of Care
Tamara Metz*
Franke’s analysis of African American and LGTBQ experiences with marriage as a vehicle for (or impediment to) civil rights is exciting precisely because it resists the familiar claim of analogy. Instead, Franke looks at the African American experience for clues about the unexpected costs of gaining recognition and inclusion through legalized marriage. Her insights are deep and important.
Marriage, Franke writes, is “a powerful vehicle for a subjugated minority to express a demand of full rights and belonging,”1 but its blessings are mixed. The downsides include: increased regulation by government, new gendered and racialized imperatives, and normalizing sex and family pressures. The effects of legalizing same sex marriage do not, however, end with the couple and their kith and kin. As a civil rights agenda and now as a right, the establishment of same sex marriage revivifies what the establishment of opposite sex marriage already accomplished: it reifies the place of the marital family at the heart of public policy and imagination to the detriment of those who do not—whether or not by choice—fall within its confines. As Franke shows, same sex marriage contributes to a policy vision that leaves behind those matters that marriage can’t solve (e.g., systemic, racialized poverty). Worse, it occludes, stigmatizes, and punishes those who do not or cannot participate (e.g., single people of all ages). Further, it provides new means for enemies of equality to express racist and homophobic influence.
Let’s Hope They’re Right
“The legalization of homosexual marriage will quickly destroy the traditional family.”
• James Dobson, Focus on the Family
Tracy E. Higgins*
I have been reading and learning from Katherine Franke’s scholarship for over two decades now and therefore welcome the Law Review’s invitation to engage with her recent book, Wedlocked. As expected, it has been a pleasure. This book is characteristic of all of Professor Franke’s work: careful, rigorous, and analytical, while at the same time provocative and even paradigm-shifting. I was fascinated by and learned a great deal from the sections of the book exploring the historical materials concerning the regulation of newly emancipated people through the laws of marriage. As Professor Franke acknowledges, this story stands on its own as an important one to be told and understood, particularly in relation to myriad ways that the African American community is regulated through the norms of family law. Her account of how the so-called freedom to marry enlarged the regulatory power of the state in ways that had unanticipated, negatives effects on freed men and women is quite compelling. Although I found it intriguing, I was less convinced by her application of these arguments to the modern marriage equality context, and it is that aspect of Wedlocked that I will focus on here.
Decentering Marriage Rights
Julie Novkov*
Katherine Franke’s Wedlocked: The Perils of Marriage Equality draws from Franke’s painstaking research on newly emancipated blacks’ experiences with freedom to provide cautionary and critical reflections on the contemporary movement for marriage equality for same-sex couples. One important strategy that helped to move Americans toward the embrace of same-sex marriage was an optimistic and ultimately successful effort to analogize illegitimate bans on interracial marriage to bans on same-sex marriage. This strategy rooted opposition to egalitarian marriage in both cases squarely in prejudice against and degradation of blacks, gays, and lesbians and relied on constitutional equality as the remedy, but Franke’s analysis goes deeper than just evaluating the analogy for fit and political leverage. Rather, she uses it to ask crucial questions. What is the significance of placing our private lives under “public control through law?”1 What are the political consequences for subordinated individuals who gain rights in a climate where they still face prejudice and hatred? What work does marriage as an institution do to discipline its participants and their families? And how can we expect the struggle for marriage equality to reorganize and divide the gay rights movement? Franke reminds her readers that ultimately, despite lesbians’ and gay men’s enthusiastic embrace of marriage both as a good in itself and as a new marker of equality, the institution is controlled and administered by a state that is, in historian Margot Canaday’s analysis, straight in its orientation and likely to remain so.2
Rhetoric and Reality in Wedlocked
John G. Culhane*
Katherine Franke’s new book, Wedlocked,1 is really two books in one. In the first, she undertakes a critical, and profoundly disturbing, examination of the effect of marriage on the African-American community. Let’s just say this: The right to marry wasn’t exactly an unalloyed blessing for the freed slaves. As she notes, “marriage produced gendered violence against black people in the nineteenth century.”2 Franke also takes on the vilification of blacks for having lower marriage rates than other groups in the population, casting this phenomenon within the broader historical and cultural contexts of African-American kinship (and economic) structures.
But that’s all I have to say about that thought-provoking book. My own interests and expertise better intersect with Franke’s other topic: the recent achievement of marriage equality for gay and lesbian couples. The parallels between the experiences of African-Americans and same-sex couples are few, as Franke acknowledges—apparently, she’d expected a stronger backlash against same-sex marriages, and was going to use the similarities to the difficulties faced by African-Americans to drive her thesis.3 As it turned out, though, the book is more about the dissimilarities between the two movements.
Who Are the People in Your Gayborhood?
A Response to Katherine Franke’s Wedlocked
Libby Adler†
Katherine Franke has long been among the clearest voices on the double-edged nature of rights. Whoa to those who fail to take heed of her foresight on the hazards of anti-discrimination and anti-harassment protections. But in her remarkable new book Wedlocked,1 Franke instructs us that the “perils of rights”2 are not the principal lesson she wishes to illustrate. Instead, the archival gems that Franke has dug up for her readers are assembled to bring to light the “enduringly gendered nature of the institution” of marriage as well as its desexualization and racialization.3
Just Like Everyone Else
Solangel Maldonado*
Katherine Franke’s vivid and illuminating description of the backlash against African-Americans that accompanied the freedom to marry illustrates how marriage rights come with significant costs. For gays and lesbians, the benefits of marriage equality seem to have been well worth the sacrifices but for African-Americans the advantages are much less obvious. Franke asserts that “part of the success of today’s marriage equality movement lies in the capacity of homosexuals to cleave the sex out of homosexuality—a tactic unavailable to people of color, who are unable to separate themselves from the racial mark that underwrites their second- class social, legal, and political status.”1 After reading this statement, I felt a sense of utter hopelessness because it is undoubtedly true. Racial minorities continue to endure second-class status even as other groups are well on the road to acceptance as full citizens. So while we should all celebrate the success of the marriage equality movement as a victory for civil rights, I cannot help but wonder whether racial minorities will ever cease to be seen as Other, and thus, inferior.
Dreadlocked
Peggy Cooper Davis*
Scholars inevitably race against developments in their fields. Wedlocked is a prime example. It reports research that was, by the author’s account, undertaken to discourage advocacy for the cause of same-sex marriage, but completed and published in the wake of Obgerfell v. Hodges’s constitutional vindication of that cause.
Professor Franke had taken as her starting point the fact that emancipation from United States slavery brought with it the right to marry. She then probed neglected records of post-Civil War treatment of emancipated people for evidence of sour grapes—evidence that, for African-Americans, the right to marry was more of a curse than a benefit. A sour grapes analysis can, of course, be undertaken with respect to any institution in which free citizens partake: Consider the electoral system, the housing market, or the job market. In each, subordinated people take lumps. With respect to each, we must choose when and whether to stand outside dreading abuse or complicity, or step inside and strive to generate change. Different choices are wise at different times and in different settings.
From Outlaw to Outcast to In-Law? Contesting the Perils of Marriage Equality
Linda C. McClain*
I am pleased to offer the opening commentary in this BU Law Review Annex symposium on Professor Katherine Franke’s provocative new book, Wedlocked: The Perils of Marriage Equality. As previewed by the book’s additional subtitle, “How African Americans and Gays Mistakenly Thought the Right to Marry Would Set Them Free,” Franke aims to provide “cautionary tales” gleaned, or lessons learned, from juxtaposing post-Civil War regulation of the marriages of African Americans freed from slavery with today’s movement for marriage equality for gay men and lesbians.3 Long a skeptic about the gay community’s focus on the goal of marriage—its (in Franke’s memorable phrase) “Longing for Loving [v. Virginia (1967)],”4 Franke aims to buttress the case for caution with archival research on post-Civil War meanings of marriage for newly freed people. As my two opening quotations from Obergefell v. Hodges and Wedlocked suggest, while Justice Kennedy views same-sex couples’ gaining access to the right to marry as fulfilling the Constitution’s “promise of liberty” and affording freedom, Franke views such access more through the lens of subjecting oneself to a new form of state regulation at the expense of freedom. Indeed, though they are ideologically poles apart, Franke seems more aligned, in this regard, with dissenting Justice Scalia, who mockingly answered Justice Kennedy’s argument that, “through [marriage’s] enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality,” with “Really?” Scalia countered that “Freedom of Intimacy is abridged rather than expanded by marriage.”5
