Reflections on Complicity
Julie Shapiro, Refle ctions on Complicity
Reflec tions on Complicity
Julie Shapiro 0
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Acknowledgements
First and foremost I acknowledge my immeasurable debt to all the lawyers andclients with whom I worked on
Andersen v. King County. Being part of such a team has been an extraordinary privilege. That I have
misgivings about my own choices should in no way detract from the superb work that has been done. The
talent, passion, and commitment brought together for this effort is remarkable. In addition, I am grateful to
Seattle University Law School and Dean Kellye Testy for support provided for writing this piece. Many friends
and colleagues read drafts and provided helpful suggestions. My thanks to them all.
This article is available in City University of New York Law Review: https://academicworks.cuny.edu/clr/vol8/iss2/31
Julie Shapiro *
Throughout her career, Ruthann Robson has called on us to
integrate theory and practice.1 As an academic who was once a
practitioner, I have always seen the necessity for this integration.2
It is an essential task if theory is to be relevant in our lives and in
our practice of law.
Over the last year I have had the chance to bring theory and
practice together in a way new to me, as one of the team of lawyers
litigating Andersen v. King County,3 a case seeking access to the right
to marry for lesbian and gay couples in Washington State.4 I
ap* Associate Professor of Law, Seattle University School of Law.
First and foremost I acknowledge my immeasurable debt to all the lawyers and
clients with whom I worked on Andersen v. King County. Being part of such a team has
been an extraordinary privilege. That I have misgivings about my own choices should
in no way detract from the superb work that has been done. The talent, passion, and
commitment brought together for this effort is remarkable. In addition, I am grateful
to Seattle University Law School and Dean Kellye Testy for support provided for
writing this piece. Many friends and colleagues read drafts and provided helpful
suggestions. My thanks to them all.
1 See, e.g., RUTHANN ROBSON, LESBIAN (OUT)LAW: SURVIVAL UNDER THE RULE OF
LAW (1992) [hereinafter ROBSON, (OUT)LAW]; RUTHANN ROBSON, SAPPHO GOES TO
LAW SCHOOL: FRAGMENTS IN LESBIAN LEGAL THEORY (1998) [hereinafter ROBSON,
SAPPHO]; Ruthann Robson, Assimilation, Marriage, and Lesbian Liberation, 75 TEMP. L. REV.
709 (2002) [hereinafter Robson, Assimilation].
2 I have tried to lend my own efforts to the larger task. See Julie Shapiro, A
Lesbian-Centered Critique of Second-Parent Adoptions, 14 BERKELEY WOMEN’S L.J. 17 (1999)
[hereinafter Shapiro, Second-Parent Adoptions]. See also Julie Shapiro, A Lesbian Centered
Critique of “Genetic Parenthood”, 9 J. OF GENDER RACE & JUST. (forthcoming 2005).
3 See Andersen v. King County, No. 04-2-04964-4-SEA, 2004 WL 1738447 (Wash.
Super. Ct. Aug. 4, 2004), available at http://www.lambdalegal.org/binary-data/
LAMBDA_PDF/pdf/308.pdf. The case is currently pending before the Washington
State Supreme Court. On appeal the case was consolidated with another similar case,
Castle v. State, No. 04-2-00614-4, 2004 WL 1985215, (Wash. Super. Ct. Sept. 7, 2004).
The consolidated cases were argued before the Washington State Supreme Court on
March
8, 2005
. No decision has been issued at this time.
4 Even phrasing the question presented in the case raises questions which should
be answered by reference to theory. Many, including the popular press, describe the
issue as “same-sex marriage.” See, e.g., FindLaw Legal News and Commentary,
FindLaw Special Coverage: Same-Sex Marriage, http://news.findlaw.com/legalnews/lit/
samesexmarriage/ (last visited July 26, 2005). This formulation has two flaws. From
the point of view of long-time proponents of marriage access, it implies that what is at
issue is a particular kind of marriage (same-sex marriage) rather than access to the
existing institution. At the same time, the term “same-sex marriage” may subtly
obscure the presence of lesbians and gay men. See Robson, SAPPHO, supra note 1, at
8182 (criticizing Baehr v. Lewin, 852 P.2d 44 (Haw. 1992), which asserts that same-sex
marriage is not the same as lesbian or gay marriage as parties to a same-sex marriage
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proached this litigation and the general question of access to
marriage, however, from a particular theoretical perspective: I agree
with the feminist anti-assimilationist critique of marriage that
Robson and others have developed over the past fifteen years.5 Not
long ago, I would have identified myself as being in the
“anti-marriage” camp.6
Given that stance, it is troubling to me to find myself devoting
significant time and energy to litigating for access to the right to
could be heterosexual). “Access to marry for les (...truncated)