Reflections on Complicity

City University of New York Law Review, Dec 2005

By Julie Shapiro, Published on 10/01/05

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Reflections on Complicity

Julie Shapiro, Refle ctions on Complicity Reflec tions on Complicity Julie Shapiro 0 0 The CUNY Law Review is published by the Office of Library Services at the City University of New York. For more information please contact , USA Follow this and additional works at; https; //academicworks; cuny; edu/clr - 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 R 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)


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Julie Shapiro. Reflections on Complicity, City University of New York Law Review, 2005, Volume 8, Issue 2,