Press the “channel up” button on your television remote several times. Every channel you stop on features colonial concepts of gender and power, concealing relevant truths about actual lived experiences. This is how those in the status quo maintain systems of oppression; unchanged, unchallenged, and uninterrupted. We need an escape from political ideology in film and television, centering our focus on social problems, like the film Pixote (1980) did in Brazil, under the direction of Héctor Babenco. I intend to examine how Pixote created an uncompromised and devastating view of the lived experiences of street children in São Paulo, forcing people out of their comfort zones and to finally address social problems; supporting my argument that a film like Pixote is long overdue in the United States.
Set in the 1980s, Pixote brings attention to the social problems experienced by abandoned children living on the streets of São Paulo and falls under an artistic genre known as social realism. Héctor Babenco originally set out to produce a documentary, but after nearly a dozen visits to the juvenile reformatories he reported that “…the authorities closed the door on me” (Csicsery 3). Instead, he created a fictional film based on the experiences of the children he interviewed. Concerned that it would not be genuine enough, Babenco hired non-actors from the low-income regions of São Paulo. The boys were not given a script or screenplay and were encouraged to speak in their own language (Csicsery 3). They were only told about the situations in workshops and improvised genuine responses. The result is a film that highlights “…the dark side of life for abandoned children in Brazil” (Shaw 149).
Beyond extreme poverty, street children experience abuse and exploitation at juvenile reformatories by the men in power, demonstrating an overarching depiction of toxic masculinity that filters down to the boys. Our first glimpse of this transference of toxic masculinity occurs when a few older boys at the reformatory violently gang rape a younger and weaker boy (Pixote, 09:29). The abuse waged against the boys by the men at the reformatory is also responsible for enabling a primitive survival instinct in them. The boys frequently showcase their strength to one another, as well as to the men running the reformatory. This survival instinct is clearly present when one of the boys is framed for murder, and he grabs a knife in the cafeteria and threatens the guards (Pixote, 52:48). The will to survive drives the boys to turn to drugs and criminal behavior as an escape mechanism.
Pixote is the central character, and the point of view in the film is often deployed through his eyes as he encounters an accelerated coming-of-age transformation from childlike innocence to deviant delinquent. Following an escape from the reformatory, Pixote and a few friends form a familial pact and engage in criminal activities to support themselves. This begins with thievery, stealing purses, briefcases, and wallets from pedestrians (Pixote, 01:05:44), and ultimately leads to involvement in drug trafficking (Pixote, 01:14:32), prostitution (Pixote, 01:34:13), and murder (Pixote, 01:30:52; Pixote, 01:57:20).
The themes of strength and survival showcased by the boys influence a third theme, sexuality, which is explored in an uncensored and often uncomfortable way throughout the film. The character Lilica, a transgender woman, is abused and sexually assaulted by the boys; rarely does she enter a sexual encounter on romantic terms. Sueli is a prostitute who sells her body for her male pimp, giving up her autonomy to support herself and her addiction. At one point, Sueli admits to Pixote that she got pregnant from one of her sexual encounters and gave herself an abortion (Pixote, 01:35:27). Pixote sees the aborted fetus discarded in the bathroom trash can. The boys also explore their sexuality, entering non-heteronormative sexual encounters. Dito, a boy who escaped the juvenile reformatory with Pixote and serves as a patriarchal leader of the group, engages in both romantic and sexual relations with Lilica and Sueli, exploring his sexuality and desire in the process. Pixote, on the other hand, never engages directly in sexual relations but learns about sexuality and desire through his observations of the other boys.
The purpose of social realism is to illustrate real-life conditions and experiences of people living and surviving in society. Pixote accomplishes this by refusing to hold back on the life experiences of abandoned children in Brazil. In the United States, we have become accustomed to censored television and filmmaking, maintaining dominant concepts of heteronormativity, the nuclear family, and positive views of capitalism. However, I argue that a film rooted in social realism in the United States would challenge these concepts. Pixote showed how a group of boys can become family, incorporating common familial traits like shared responsibilities, unconditional love, financial support, and opportunities for learning and growth. This non-traditional nature challenges the dominance of nuclear families and also challenges concepts introduced in capitalist ideology, ideas that propose “…childhood as a separate and protected space of play and of learning” (Reimer 2011). The children are forced into accelerated coming-of-age transformations, leaving no opportunities for them to experience childhood. We need films like Pixote to force Americans out of their comfort zone, to see the dark side of lived experiences in the United States. There has been some progress with filmmaking moving in a direction of social realism; Moonlight (2016), introduced us to the intersections of race, toxic masculinity, and sexuality in the lived experiences of Chiron, a queer Black boy living in Miami, Florida. The film was able to challenge the concept of the nuclear family, raising the question, “what is family?” Chiron finds himself supported and unconditionally loved by Juan, a drug-dealer, and his girlfriend Teresa; important traits than he rarely experienced from his birth mother. The film addresses poverty within Black communities, and Chiron’s transition to drug dealing for survival challenges capitalist failures in the United States. While this is a meaningful step in the right direction, we need more filmmakers to take the risk that films like Pixote and Moonlight took to challenge dominant societal norms.
Csicsery, George, and Héctor Babenco. “Individual Solutions: An Interview with Héctor Babenco.” Film Quarterly, vol. 36, no. 1, 1982, pp. 2–15, doi.org/10.2307/3697179.
Jenkins, Barry, director. Moonlight. A24, 2016.
Reimer, Mavis. “On Location: The Home and the Street in Recent Films About Street Children.” International Research in Children’s Literature, vol. 5, no. 1, 2012, pp. 1–21., doi.org/10.3366/ircl.2012.0040.
Shaw, Deborah. “National Identity and the Family: Pixote by Hector Babenco and Central Station by Walter Salles.” Contemporary Cinema of Latin America: Ten Key Films, Continuum, New York, 2003, pp. 142–179.
Barry Jenkins’ Moonlight (2016) explores the life of Chiron, a gay Black boy living in a low-income area of Miami. We follow Chiron as he struggles with his mother Paula’s drug addiction; as he meets Juan, his mother’s drug dealer, who quickly becomes a father figure; as he relies on Juan’s girlfriend, Teresa, who nurtures him as a mother would; and as he discovers his sexuality with his best friend, Kevin. Chiron’s peers constantly target him for being gay, eventually leading to a physical fight and Chiron’s imprisonment. Years later, we see Chiron went back to the streets after being released from prison and now sells drugs just like Juan. In the end, it seems Chiron has come to terms with his sexuality but has yet to find a welcoming environment in which to explore it. In this essay, I will demonstrate how Chiron’s relationships with Teresa and his mother are foils that challenge the concept of family while illuminating the gendered, heteronormative complexities of Black experiences.
Chiron’s mother suspects his homosexuality early in his childhood, and while she never physically harms Chiron because of his sexuality, he does not grow up in a happy home. Like many addicts, Paula’s condition breaks up the family, and she partially blames Teresa for providing the safe environment he needs, calling her his “lil play-play mama” (Moonlight). Unfortunately, Paula is one of many women of color victimized by a vicious cycle of racism and the housing and job discrimination that comes with it. She’s pictured wearing scrubs several times, indicating some type of medical occupation, but it is not enough to support her family and her addiction. As a woman of color, she is a member of the lowest-paid group in the nation, meaning she earns less than she would if she were a Black man or a white woman (Lorde). She and Chiron also live in a predominantly Black area where drug abuse and incarceration rates are high. As such, we can see that public racial conflicts enter the private home even without considering sexuality yet.
Heteronormativity – “the assumption that heterosexuality is the standard for defining normal sexual behavior and that male–female differences and gender roles are the natural and immutable essentials in normal human relations. According to some social theorists, this assumption is fundamentally embedded in, and legitimizes, social and legal institutions that devalue, marginalize, and discriminate against people who deviate from its normative principle (e.g., gay men, lesbians, bisexuals, transgendered persons)”
When we do consider sexuality and gender, the effects of heteronormativity and sexism are unmistakable. Like Paula, Teresa never judges Chiron for being gay, but unlike Paula, she can provide a safe haven for him when he needs it. She becomes his “chosen family,” meaning they are unrelated but support each other the way a healthy family should (Chu). Family, then, is not defined by involuntary biology and a two-parent household, but by the privilege of love and any number and gender of parents. In this way, Teresa and Paula are foils for each other: one is the archetypal bad mother while the other is the nurturing savior. However, Teresa is only able to be a positive mother figure because of Juan’s drug dealing income, and throughout the film, we are constantly reminded that Teresa is Juan’s girl rather than an individual woman. She and Paula are both oppressed as Black people, women, and more importantly, Black women.
Additionally, they would be treated worse had they identified as LGBTQ*. Despite their oppressed position, both women are also privileged by their heterosexuality; Chiron is not so lucky. Being Black and having few strong role models in his life leads him back to the streets after being released from juvenile detention, but being gay is what sends him to prison in the first place: he defends himself from homophobic bullies and is consequently arrested. The web of oppression is quite tangled and Moonlight’s ending, where Chiron reveals he has never had any romantic or sexual relationship except the single experience on the beach with Kevin, suggests that there is no simple solution. Paula, Teresa, and Chiron form a disjointed hybrid family, and while they share the trait of being a Black person in the United States, their experiences are not the same. These three characters demonstrate just how intersectional oppression and Black experiences are.
Visual novels are video games with a heavy emphasis on narrative. They are usually text-heavy, aided by visuals, and allow the player to interact with the story to some capacity, but beyond these elements, they can vary greatly in terms of gameplay, art style, and writing style. Likewise, visual novels encompass a broad range of genres from dating simulators, in which you play as a character romancing another character, to horror, in which you play as a character in a setting or situation meant to elicit fear. Some even take advantage of the player’s position or expectations to subvert genre tropes and break the fourth wall. Doki Doki Literature Club!—one of the most discussed visual novels of the 2010’s—is a great example of this.
Video games can be a powerful storytelling medium, and as the world pushes towards social progress, more people are turning to them to see themselves reflected in the narratives they tell. Disappointingly, those in the LGBTQ+ community still often find themselves poorly depicted by game developers. For example, Atlus, a video game developer and publishing company most renowned for the Megami Tensei and Persona series, has spawned countless controversies for its mistreatment of gay and transgender-coded characters in games like Persona 5 Royal and Catherine: Full Body. Fortunately, in recent years, game developers have made a plethora of visual novels that put queer people—specifically queer people of color—in the limelight. Indie visual novels like Butterfly Soup, which follows two Asian-American girls as they bond over baseball and fall in love; one night, hot springs, which follows a Japanese transgender woman as she tries to navigate an outing at a public hot spring; and Dream Daddy: A Dad Dating Simulator, which follows a single father that the player customizes as he tries to romance a colorful cast of other dads living in his neighborhood,tell heartfelt, authentic stories. Because of a number of factors, the visual novel format remains one of the best ways to highlight LGBTQ+ perspectives in video games.
The overwhelming majority of the visual novel community is welcoming towards queer game developers and fosters an inclusive, encouraging environment around the content they make. From a historical perspective, the first overtly, canonically gay character—the lesbian detective Tracker McDyke—is actually from a visual novel published in 1989 called Caper in the Castro. This game, made by nonbinary artist C.M. Ralph, was charityware that pays homage to the queer community in San Francisco and was received with praise in the underground LGBTQ+ bulletin board systems it was distributed in (Shaw). Other visual novels featuring same-sex romantic relationships were published as early as the 1990s in Japan (Chan). However, over the past thirty years, visual novels that feature queer people and stories have drastically rose in both quantity and popularity both in the United States and overseas. Places like itch.io, an online storefront for indie game developers, have hosted annual queer-themed game jams since 2015, and Steam, a cloud-based video game distribution service, highlight games with LGBTQ+ themes, many of which are visual novels. While other sectors of the gaming industry are beginning to have been taking steps towards inclusivity on this front in recent years, queer people have always had a prominent presence in this particular space.
On that note, making a visual novel is arguably one of the easiest types of games to make. A game developer is not required to create stunning graphics or intense, innovative game mechanics to create a good visual novel. Likewise, there is a plethora of software available specifically for making visual novels that require minimal to no background knowledge of coding like Ren’Py, Tyranobuilder, and Suika2. Therefore, while making one’s own game comes with its own obstacles, there are fewer barriers for people to tell the stories they themselves want to read. Queer people who may not necessarily have money to spare or experience with game development can still make affecting content and represent themselves through their work.
The story-driven nature of visual novels also gives creators the opportunity to humanize and flesh out their characters. Although many mainstream video games have gay and transgender characters, the genre of the game or the game’s writing may sideline these aspects of them. While it is not necessary for good gay and transgender representation, focusing on how the specific identities of LGBTQ+ characters affect them can be a great way to explore individual experiences. Likewise, should they wish to, queer game developers have the power to tell messier LGBTQ+ stories and highlight flaws of LGBTQ+ characters, which is not often seen in mainstream media.
Historically, the sphere of visual novels in gaming has been a safe space for queer game developers to express themselves and continues to be so today. For gamers who are seeking to understand the LGBTQ+ experience, visual novels that are written by queer game developers may be a good place to start. As mainstream gaming continues to diversify across its sectors, game studios should look to queer people to tell their stories, for they have been telling them through this medium for years. Regarding this visibility, Christine Love, a renowned indie game developer known for her romance visual novels with queer themes, notes that “by an outside perspective, you’re making art that is different and is interesting and isn’t just representing the same sort of well-off white male nerds with a certain history…. You are getting perspective outside of that and as a result, you get better artwork—because I feel like art is just always elevated by being able to pull from different influences and different people’s perspectives” (Wade).
Chan, Harriette. “The History of LGBTQ+ Visual Novels.” TechRadar, 23 Jan. 2021, www.techradar.com/news/the-history-of-lgbtq-visual-novels.
Shaw, Adrienne. “Caper in the Castro.” LGBTQ Video Game Archive, 22 Jan. 2021, lgbtqgamearchive.com/games/games-by-decade/1980s/caper-in-the-castro/.
While it is considered relatively safe for gay and bisexual individuals to live in compared to other East Asian countries, Japan still does not protect LGBTQ+ individuals from hate crimes on the national level, allow for same-sex marriages, recognize same-sex marriages performed abroad, or allow same-sex partners to adopt children or undergo IVF, among other refusals to recognize their human rights (“Japan”). Recently, there was an attempt to pass national legislation that would have at least granted LGBTQ+ people protection against discrimination on the basis of sexuality and gender. However, the legislation was watered down to instead “promote understanding” towards this group. The legislation was ultimately tabled in the summer of 2021 (Holmes).
Those who are in favor of maintaining this status quo insist that homosexuality is a Western ideal imported into Asia as a result of globalization (Wong). Those within the largely conservative National Diet have also allegedly argued that protecting gay and transgender individuals is too radical of a change and would hinder the country’s growth (Holmes). However, exploring the historical stances Japan has taken towards sexual fluidity reveals how deeply-entrenched colonialist ideas are within the Diet’s outward lack of compassion towards LGBTQ+ individuals. Homophobia within Japan is a result of epistemic injustice that arose as Japan faced pressure to conform to the West during the Meiji Era, and leaders within Japan should take steps to mend it from an epistemological perspective.
Colonization can have deep, long-lasting implications for the culture being colonized due to its ability to impose outside knowledge while undermining local knowledge. After all, colonization not only involves the exploitation of the resources and labor of the colonized but also involves the destruction and warping of the colonized culture to the point that it becomes “inferiorized, marginalized, and anonymized” so that the colonizer’s treatment is viewed as “beneficial and fair” (Collste). Often, this involves the addition of foreign epistemic frameworks into the colonized culture, which can destabilize old knowledge that has worked effectively in the past. In “Cultural Pluralism and Epistemic Injustice,” Goran Collste defines an epistemic framework as a means by which one within a given culture may “interpret, understand, and categorize [one’s] impressions and experiences so that they are manageable and possible to communicate and assess” (Collste). Quoting Rajeev Bhargava, he also emphasizes that any given epistemic framework relies on “‘historically generated, collectively sustained” lenses that inform both one’s individual identity and the culture’s collective identity (Collste).
From a religious standpoint, the introduction of the Judeo-Christian concept of shame surrounding sex—and homosexuality in general—fueled the suppression of the open expression of same-sex relationships. Neither Shintoism nor Japanese Buddhism—the two major religions in Japan up until the present day—decried homosexuality. In the Kojiki, the first written compilation of mythos considered sacred in Shinto practices, homosexuality is not decried; in fact, it is not even mentioned (Koichi). While male-female sexual activity is considered more corrupting to the soul, overall, Shintoism does not engrain ideas of shame into sex (Koichi). Likewise, among Buddhist monks sworn to celibacy, male-female sexual activity has been seen as innately defiling, whereas homosexual activity is not offensive enough to be considered punishable (Koichi). Shintoism and Buddhism’s more sex-positive ideas allowed Japan to found its ideologies regarding sex as separated from morality. Because their fundamental ideals regarding these topics contrasted so starkly, encroaching Western powers looked upon this aspect of Japanese culture with surprise and disgust. Outward expressions of sexuality and male-male relationships were decried in newspapers overseas, which ultimately led to Japan’s ruling elite deeming it as something meant to be left in the past (Koichi). In this sense, Japan’s swiftly-changing moral attitudes were not a result of Japan’s free will, rather they were a result of the constant, looming threat of a loss of respect from more powerful countries. The sudden change arose as Japan was “disrespected and considered as inferior” by Western powers, which instilled in them an “enduring sense of inferiority among the adherents of the old culture.” Homophobia followed (Collste). Shame towards these aspects of Japanese culture stemmed in part from how incompatible these local and imported epistemic frameworks were. With the looming fear of colonization, sexual freedom and fluidity were increasingly pushed out of Japan’s mainstream epistemic framework in order to harmonize with its oppressors (Collste).
Likewise, the medicalization of homosexuality is one such example of the addition of an epistemic framework that warped Japan’s local knowledge and led to the “othering” of gay individuals. In practice, same-sex relationships were normalized up until the beginning of the Meiji Era in the late 19th century. Sexuality was regarded as both fluid and something that was done as opposed to something that was an innate part of oneself. Men of all classes were able to engage in nanshoku and wakashudo culture, forms of love between men, and this did not prevent them from engaging in joshoku, or love between men and women (McLelland). Wim Lunsing further indicates that it was believed that “anybody could ‘slip’ (ochiiru) into pseudo-homosexuality for a variety of reasons” (Lunsing). The concept of a fixed sexual identity, therefore, did not exist within Japan’s epistemic framework regarding sexuality. Rather, it was perceived to be a result of one’s environment or a desire to experiment in one’s youth, or simply just love (Lunsing).
Into the early 1900s, Japanese scholars studied in the West. They took with them both the concept of homosexuality as a fixed identifier, as evinced by the creation of the words dōseiai and iseiai to embody the concept of homosexuality and heterosexuality respectively within the binary sexuality spectrum (McLelland). After World War II, they adopted the Western belief that homosexuality was a mental illness and therefore an abnormality to be studied (McLelland). Despite Japan’s long-standing cultural perspective and practices, the insertion of pseudoscientific ideals framed by Western empirical thinking into Japan’s concept of sexuality resulted in the deeming of homosexuality as inferior compared to heterosexuality (McLelland). It is more difficult to compare with cultural practices without such evidence, even though said evidence may be heavily influenced by the biases of the scholars (Mao). Since Western empiricism positions itself as absolute based on its emphasis on the need for scientific evidence, Japan’s historical lens regarding sexuality was largely discarded and replaced with one that was less suited to capture its nuances and normalcy.
As a result of the adoption of these Western ideals, gay people in Japan have a more difficult time being accepted by society, and their experiences are distorted and obscured. There lacks an adequate epistemic framework for them to make sense of their sexuality largely within the context of their own history, and there still exists a subtle prejudice against gay individuals in their lack of serious representation in mainstream media and the pressure to conform to traditional, heteronormative standards (Wong).
It must be said that it is entirely possible to slowly mend this epistemic injustice. Especially within its cities, the Japanese public is largely supportive of LGBTQ+ rights, and there have been ongoing efforts by advocacy groups towards more legislation to protect LGBTQ+ people and addressing misconceptions regarding homosexuality (Holmes). Queer Japanese people should not only be given the opportunity and resources to reconnect with their rich culture on their own terms, but also the opportunity to productively voice their own needs and concerns. In “Reflective Encounters: Illustrating Comparative Rhetoric,” LuMing Mao suggests that groups with opposing viewpoints or cultures listen to each other with an open mind with the purpose of self-reflection and understanding. If conversations like these occur within this context, those with biases against gay people—especially those within the government—can differently understand their viewpoints regarding homosexuality with the intent of social progress. The means by which homophobic biases manifest in the everyday lives of gay people must be restricted in order for healing to occur.
It is inherently wrong to call homosexuality a Western concept; the truth is that Japan’s fear of occupation by the Western imperial powers applied immense pressure to conform to Western ideals, which included shame associated with gay relationships and sex in general. This distancing from Japan’s rich queer culture and customs has resulted in homosexuality being seen as a result of globalization as sexuality began to be defined by Western terminology. Moving forward, the Japanese public should be educated on Japanese queer history and more rights must be afforded to queer individuals. It is entirely possible for the public to reconnect with these roots in their history with an open mind and work towards justice for gay individuals.
Lunsing, Wim. “Discourses and Practices of Homosexuality in Japan: Recent Contributions to the Literature.” Social Science Japan Journal, vol. 4, no. 2, 2001, pp. 269–73. JSTOR, www.jstor.org/stable/30209329.
McLelland, Mark J. “Japan’s Queer Cultures.” The Routledge Handbook of Japanese Culture and Society, edited by Theodore and Victoria Bestor, Routledge, 2011, p. 140–149. University of Wollongong Australia Digital Commons, ro.uow.edu.au/artspapers/265.
Wong, Brian. “Column: Homophobia Is Not an Asian Value.” Time, 17 Dec. 2020, time.com/5918808/homophobia-homosexuality-lgbt-asian-values/.
Cameron Mackintosh is a well-known name in the UK, but this is less true in the US. While you may be unfamiliar with his name, his work is much more recognisable – Les Miserables, Phantom of the Opera, Hamilton. He is a producer for some of the most famous and longest-running West End and Broadway shows in the history of theatre. With his reputation of featuring progressive themes of inclusion, revolution, and community in these shows, one would think that he’d be a proponent for the advancement of theatre into the 21st century, but recent comments have led him to face backlash throughout the theatre community.
Recently, when asked about the potential for transgender actors in theatre shows, he responded, “you can’t implant something that is not inherently there in the story or character… to do that, it becomes gimmick casting. It’s trying to force something that isn’t natural.”4 This exclusionary mindset separates trans actors from the rest of the theatre community, suggesting that an artist who happens to be trans would not be able to play a role as effectively or convincingly as a cisgender artist.
Unsurprisingly, this faced a significant amount of backlash from a community largely based on acceptance and tolerance. Alexandra Billings, a transgender actress currently starring in Wicked on Broadway, asserted that
“I am an actor…I am these stories because I am part of the human fabric and no one has the right to take any this away from me.… I am an actor, Mr. Mackintosh, not a gimmick…. We have been playing these musical roles in the theater for centuries. The only difference is, now we are becoming visible. And that’s frightening. That’s upsetting. This is about you and your fear and the fear of many others, but it is not about the trans community.”
– Alexandra Billings
She was far from alone in this: countless actors from Mackintosh’s own shows, as well as the entire cast of a recent production of Rent (a show that features multiple trans/non-binary actors) stood up against his words, demanding an apology and highlighting the work that trans actors have done within the Broadway community.4
On September 6th 2021, there was a Trans March on Broadway, protesting Mackintosh’s comments and claiming that it should be transgender artists who lead the conversation, not Mackintosh.5 There are also plans for a concert entitled You Gotta Have A Gimmick, the goal of which is to put the spotlight on trans artists and allow them to share their talents separately from the discriminatory comments.
Following the backlash, Mackintosh posted another statement, apologising for his comments. He claimed that his words were misinterpreted and that it wasn’t transgender artists he was against, but simply their presence in classical shows; instead, he suggested, new shows should be written focused exclusively on trans issues. The problem with this suggestion, aside from the fact that it still gatekeeps classical roles from transgender actors and limits the subject matter that he sees as suitable for them to partake in, is that the creation of new musicals is not such a straightforward solution. Plays and shows have already been written with specifically transgender roles in mind, such as Jagged Little Pill, and Breakfast on Pluto.3,2
The issue? These roles are still being played by cis actors.
By claiming that classical roles are not suitable for trans actors, whilst also casting cis actors in trans roles with the claim that fiction should be open to anyone, producers create a hypocritical paradox that only serves to exclude transgender actors. Additionally, certain new shows such as Tootsie (a show in which a male character adopts a female persona in the hope that this advances his career) create storylines that “profit from transgender stereotypes while casting cisgender performers, to share their experiences in the business.”2
The expectation that progress will come through new shows is an excuse that has allowed for the lack of diversity within classical theatre for decades. The majority of casting in older, more renowned shows is predominantly White, with the expectation that newer shows will create roles more “suitable” for actors of colour, actors with disabilities, and trans and non-binary actors. This lack of representation is far from limited to just sexuality and gender identity – race is also massively underrepresented.
While the issue of needing more diverse actors is a frequently occurring one, an important discussion that is often overlooked is one of writers. In the last 3 theatre seasons, over 80% of plays and musicals on Broadway were written by White creatives, as outlined in “The Visibility Report: Racial Representation on NYC Stages,” which was published by the Asian American Performers Action Coalition.1 Given that diversity is supposedly meant to be enhanced through new art (which has occurred to a certain extent, with shows such as Hamilton and Hadestown casting much more diverse artists, but has still not come close to resolving the imbalance), it seems unlikely that this will be possible in an industry where even new art is staggeringly under-representative. In 2019, a study done on gender representation within Broadway revealed that there were only 4 artists who openly identified as non-binary, with non-gender specific roles making up just 7.1% of all characters on Broadway.6 When this study was released, actor Shakina Nayfack wrote that she “just want[ed] to be playing good roles that don’t necessarily have anything to do with transness.” In short – roles don’t need to be written specifically for trans actors because they should be able to occupy any space and role they choose on Broadway.
While diversity is starting to emerge within shows, without the hiring of actors in classical shows – given these shows’ reputations of prestige and their security as a symbol of Broadway, especially amongst older audiences – progress will be slow, as these actors will still believe theatre isn’t a place for them. The responsibility shouldn’t be on young actors and writers to create roles for themselves when existing roles should be open to them.
(Dates and artists for You Gotta Have A Gimmick have not yet been announced, but follow @youcancallmesis on Twitter for updates)
The following article is a revised version of the original piece and does not include all photos. The full original article with all accompanying photographs can be viewed by downloading the PDF below (recommended, but viewer discretion advised).
American photographer Robert Mapplethorpe shocked the international art community in 1988 with The Perfect Moment exhibition at the Contemporary Arts Center (CAC) in Cincinnati, Ohio. Against politicians’ desires, the CAC decided to display Mapplethorpe’s work even though the Corcoran Gallery of Art in Washington, D.C. cancelled the same exhibit only a few months earlier (Tannenbaum). The majority of Mapplethorpe’s photos were labeled obscene and pornographic, leading to criminal charges pressed against the CAC and its director at the time, Dennis Barrie. One of the most shocking was Rosie (1976), a photograph featuring a friend’s three year-old daughter sitting with her legs open, revealing her nude body beneath her dress. The trial took over a year, ending in acquittal and the public display of Mapplethorpe’s work at the CAC in 1990, just over one year after his death in 1989 (Mezibov).
Nude photography was one of Mapplethorpe’s specialties. Several of his portfolios featured the S&M and LGBTQ* communities in New York City, particularly in nude portraits (“Biography”). Many believe his intense focus on the nude body was an expression of his homosexuality. Rosie however, was one of only two photographs of nude children—the other, Jesse McBride (1976), featured a fully nude five year-old boy sitting on a chair. Both photos were taken with the children’s mothers’ permission but still received heavy backlash and criticism for being “pornographic” (Mezibov).
Ultimately, Mapplethorpe’s Rosie (1976) was not meant to be pedophilic, but rather a response to increasing radical American conservatism during the 1970s and 1980s. Its showcasing in The Perfect Moment exhibition (1988) challenged the limits of censorship and artistic freedom, reflecting the growing social phenomenon of hypersexualization that continues to define American media today.
Senator Jesse Helms and Homosexuality
Mapplethorpe lived in the heart of LGBTQ* activism in New New York in the 1970s. It was during this decade that the gay community began seeing representation in mainstream media, including movies that featured gay characters and the establishment of Gay Pride week. In 1973, the American Psychiatric Association stopped recognizing homosexuality as a mental illness, and the corporate world started prohibiting sexual orientation discrimination (Rosen). The LGBTQ* community saw tremendous strides in equality and justice advocacy.
It was during this time that Mapplethorpe became an icon for LGBTQ* folks. According to his friend and writer Ingrid Sischy, Mapplethorpe’s works purposefully focused on homosexuality in order to draw attention. His unapologetically direct photographs helped turn homosexuality from a shameful secret into a proud identity (Sischy).
However, the AIDS epidemic soon heightened homophobia in the 1980s. Mapplethorpe heavily focused on black male nudes, a clear expression of his homosexuality, making him a prime target for censorship. Republican Senator Jesse Helms was especially offended by Rosie and hyperfocused on Mapplethorpe’s homosexuality, AIDS-related death, and interracial photographic subjects (Adler, Meyer). In 1989, Helms convinced the deciding congressional committee to pass a bill prohibiting the National Endowment of the Arts (NEA) from funding the Institute of Contemporary Art (ICA), which organized the original Perfect Moment exhibit, for five years (Adler, Tannenbaum). He did so by lying about the photographs he saw firsthand at The Perfect Moment and distributing copies of four of them to the other committee members (Meyer).
At the time, Senator Helms’ arguments reflected those of a growing conservative movement. His outrage about Rosie was less about the photograph itself and more about the artist. Furthermore, his push for censorship was less about Rosie’s exposed body and more about silencing the LGBTQ* community, including proudly gay folks such as Mapplethorpe. In his attempts to “cordon off the visual and symbolic force of homosexuality, to keep it as far as possible from [himself] and the morally upstanding citizens he claim[ed] to represent,” Helms ironically brought even more attention to it (Meyer 134).
Some supported censoring Mapplethorpe’s work by claiming he was a pedophile and child abuser, but neither Jesse nor Rosie recall him as such. As adults, both reflected on their portraits proudly (Adler). As censorship lawyer Edward de Grazia wrote regarding the Mapplethorpe case, “art and child pornography are mutually exclusive… no challenged picture of children having artistic value can constitutionally be branded ‘child pornography’ or ‘obscene’” (de Grazia 50). Though it was ultimately deemed non-pornographic after the Mapplethorpe trial, Rosie was only the beginning of a political push to seize funding from the arts, particularly the radical works such as Mapplethorpe’s, following several rising liberal and conservative movements in the previous decades.
Historical Context: Radical Conservatism and the Sexual Revolution
During the 1970s, the LGBTQ* community became more vocal, allowing gay men such as Mapplethorpe to be more openly accepted in the art world. In response, movements such as the New Right and the Christian Right emerged, led largely by American evangelicals claiming that homosexuality was morally sinful (“The New Right”). Mapplethorpe’s very existence contradicted traditional conservative values, and he could never align with socially-accepted heteronormative culture.
In fact, the Rosie controversy emerged during a new wave of conservative outrage that began a few years earlier in 1987, when Andres Serrano’s Piss Christ was awarded $15,000 by the partially NEA-funded Southeastern Center for Contemporary Art (Meyer). Along with many other Republican Christians, Senator Helms was deeply offended and embraced the opportunity to denounce another artist who defied traditional conservative values when The Perfect Moment debuted in 1988. At that point, Helms’ focus shifted from Serrano’s critique of religion to Mapplethorpe’s expressions of homosexuality, repeatedly calling his photographs “sick” (Meyer 137). In doing so, Helms used the art as a larger metaphor for homosexuality and AIDS, which he believed were plaguing and contaminating Christian-American society.
As a gay man, Mapplethorpe was not sexually attracted to females at all, so it would have been much easier for Helms to use Jesse McBride rather than Rosie in his rhetoric. It was the ongoing sexual revolution, which also contributed to the rise of far-right conservatism, that put Rosie in the spotlight instead. Rosie, then, can be interpreted as Mapplethorpe’s way of challenging traditional ideologies and aligning with the sexual liberation movement. Where he saw an innocent child, many conservatives such as Senator Helms saw the bare sexuality of a young girl. Movements such as the New Right could not view her as anything other than sexual with her genitalia exposed. Therefore, it was not Mapplethorpe who sexualized the child but the audience who saw her, revealing a culture deeply rooted in traditional domestic roles and gender spheres.
The 1960s and 1970s saw a rapid increase in women’s and sexual liberation. Nonheterosexual sex was brought to national attention as well, especially after the Stonewall Riots in 1969 (Kohn). Much of Mapplethorpe’s work reflected this new spotlight. Rosie, though, was unlike his trademark photographs of an interracial S&M community, yet it still gained significantly more attention. Despite the portrait subject being a White child, Rosie was one of the four photographs that Senator Helms distributed to his fellow Congressmen and Senators. The others were Mark Stevens (Mr. 10½) (1976), Man in Polyester Suit (1980), and Jesse McBride (Meyer). There were several other photos of naked men in The Perfect Moment, many considered far more pornographic than Rosie and Jesse McBride could ever be, but Rosie was not chosen by mistake. She reflected a different, but not unrelated, threat to Christian-American tradition: women’s liberation.
After the birth control pill hit the market in 1960, sexuality and sexual expression were no longer taboo subjects. Rates of premarital sex increased significantly while books such as Alex Comfort’s The Joy of Sex normalized conversation about sex (Kohn). For many, Rosie represented a new generation of sexually-liberated women. For conservatives like Senator Helms, this was an intolerable break from traditional gender roles, where men and women had defined, separate roles in society. The New Right movement believed the sexual revolution was destroying the American family structure, leading little girls like Rosie from domesticity to radicalism (“The New Right”). Rosie, then, was the epitome of everything wrong with women’s liberation for Helms. In distributing her photograph, he attempted to defy the new wave of feminism.
Censorship and Artistic Freedom
However, despite its many controversies, the Mapplethorpe censorship case was most defiant of artistic freedom. Following the case, American art critic Robert Storr wrote that “there are no ‘laws of decency’; certainly none that have any juridical standing with respect to art” (Storr 13). He further argued that censorship itself is the manifestation of widespread mistrust of the public’s ability to draw their own conclusions. In a nation founded on freedom of speech and expression, art essayists like Hilton Kramer, who deeply criticized Mapplethorpe’s work, and politicians like Helms ironically believed that common people should not and could not discern what was acceptable, particularly regarding art (Storr). Helms and Kramer used censorship to impose their own beliefs onto the general public, serving as a microcosm of strong conservative attempts to minimize the voices of non-traditional values.
When such defiances of conservatism emerged, they were immortalized in the form of art through Mapplethorpe and other “radical” artists like Serrano. In the heat of America’s changing society, Rosie became a monumental representation of true freedom: freedom of artistic expression, freedom of sexual expression, and the freedom of perspective. Politicians, however, disagreed over what freedoms should receive public funding. Helms and his fellow White Christian American conservatives believed that the NEA should not fund art that offended them based on “their assault on social constructions of sexuality, race, and spirituality” (Atkins 33). Once again, the majority group was attempting to impose their beliefs on the rest of society, a perfect example of censorship at its core.
Mapplethorpe’s case was significant but not the first. Works by LGBTQ* folks, people of color, and those with “dangerous” political views have been consistently marginalized. For example, Diego Rivera’s Portrait of America mural at Rockefeller Center was destroyed in 1933 because its center featured Vladimir “Lenin” Ulyanov, former leader of the communist Soviet Union (Atkins). In 1934, Paul Cadmus’ The Fleet’s In was removed from the Corcoran Gallery of Art—the same gallery that cancelled The Perfect Moment in 1988—because the Franklin D. Roosevelt administration requested it (Atkins). This was only a small part of FDR’s anti-gay legacy: during his time as Assistant Secretary of the Navy, FDR helped run a sting operation in Newport, Rhode Island in 1919, resulting in the arrest of over 20 Navy sailors for homosexual activity (Loughery). In 1981, after strong advocacy from Hilton Kramer and other conservative critics, the NEA stopped funding individual art critics because many of them were leftist (Atkins). Clearly, the Mapplethorpe case followed decades of conservative attacks on art.
Some believe the most pressing issues surrounding Rosie were Rosie’s age and exposed body. There were certainly multiple other artists photographing naked women at the time, like Don Herron and his Tub Shots series, who received little criticism for the nudity. In fact, nudity itself has never been an issue in art; some of the most famous and public classical works portray naked Romans, Greek gods, and biblical figures, like Michelangelo’s David and Sistine Chapel ceiling. In fact, nude boys were not an issue either, as seen in works like Thomas Eakins’s Boy nude at edge of river (c. 1882) and John Singer Sargent’s A Nude Boy on a Beach (1925).
The fact that Rosie was a girl was not the most significant factor either. During the 1970s, when the Rosie photograph was taken, the United States saw a rapid increase in explicit advertisements, particularly those with women only partially dressed or in full nude. One 1993 study revealed that the number of purely decorative female roles in ads increased from 54 percent to 73 percent from 1959 to 1989 (Busby and Leichty). A 1997 study found that over a 40-year period, 1.5 percent of popular magazine ads portrayed children in a sexual way, and of those ads, 85 percent depicted sexualized girls, with the number increasing over time (O’Donohue et. al). Even in the 1970s and 1980s, the sexualization of young girls was certainly nothing new. Advertising industries had been doing this for decades before the Rosie controversy started in 1988. In fact, they still do.
The hypersexualization of both women and children in the media is quite common now. As National Women’s Hall of Fame activist Dr. Jean Kilbourne reveals in So Sexy So Soon, corporations use sex and sexiness to advertise to children at increasingly younger ages—and they are alarmingly successful. Dangerously unhealthy standards of beauty define sexiness as the most important aspect of a woman’s identity and value. The sexual liberation movement of the 1960s and 1970s has turned into a hypersexualized culture, where children as young as Rosie are exposed to sex in songs, TV shows, advertisements, and social media (Kilbourne and Levin). Like the conservatives’ reaction to Rosie in 1988, young girls are now seen in a sexual way before they are seen as simply children.
Therefore, like the basis of Helms’ original arguments, the outrage and controversy surrounding Rosie was less about the photograph itself and more about the artist and what the artist represented. Mapplethorpe’s identity and lifestyle contradicted many traditional conservative values: he was homosexual, engaged in S&M, photographed interracial couples, and eventually died of AIDS. Rosie herself said she did not view her portrait as pornographic and could not understand why others thought it was. In fact, in a 1996 interview with The Independent, Rosie recalled her mother making her put on a dress just before the photo was taken, and immediately after, she took the dress off. Ironically, she noted that “if it had been a small [nude] boy, maybe this furore would be justified; Robert [Mapplethorpe] wasn’t interested in girls anyway” (Rickey). Jesse McBride, which is exactly that, received even less backlash than Rosie.
Helms, then, used Rosie against Mapplethorpe not because he thought it was pornographic, but because of all Mapplethorpe’s works, Rosie garnered the most conservative support for censorship. He could easily use the classic damsel in distress situation by painting Rosie as a helpless little White girl in need of protection from a dangerous gay man, with emphasis on Mapplethorpe’s homosexuality. It wasn’t Rosie’s age, nor her exposed body, that angered Helms: it was Mapplethorpe.
The Rosie controversy was just as relevant in 1988 as it is now. It continues to pose crucial questions, challenging the boundaries of art and the limits of censorship while highlighting the marginalization of LGBTQ* art, societal resistance to change, and hypersexualization of women and children. Ultimately, Rosie was not the creator of such outrage and conservative criticism, but the vessel exploited by powerful politicians to further their own agendas against Mapplethorpe and other LGBTQ* folks. The Mapplethorpe trial surrounding Rosie was the culmination of decades of liberal movements—including women’s liberation, the sexual revolution, and increasing attention to LGBTQ* voices—and the conservative responses to them. Despite the continuous controversy, critics consider Mapplethorpe, rightfully so, as one of the most influential American artists in the twentieth century. Rosie was last on public display in 2017 at the Guggenheim Museum in New York City.
O’Donohue, William, et al. “Children as Sexual Objects: Historial and Gender Trends in Magazines.” Sexual Abuse, vol. 9, no. 4, 1997, pp. 291–301. SAGE Journals, doi.org/10.1177%2F107906329700900403. Accessed 27 Jan. 2021.
“More than 900 women have died at the hands of their husbands or partners since China’s law against domestic violence was enacted in 2016”
Lhamo, a Tibetan woman and popular social media star living in southwestern China, was one of them. Two weeks after her ex-husband set her on fire, Ms. Lhamo died in the hospital, leaving her two sons and a rekindled wave of women’s rights protests behind. Her story, according to The New York Times reporter Elsie Chen (2020), reflects the Chinese government and law enforcement’s inability, and perhaps lack of desire, to protect its women. However, there are several underlying factors influencing feminist politics in China that went unaddressed in Chen’s report, along with the few other news reports covering the same story. Ms. Lhamo’s tragic death is also a product of brutal, complex relationships between ethnicity, sexuality, and socioeconomic status, revealing minimal progress towards equality and justice despite written law.
Ms. Lhamo’s family was well aware of her husband’s abuse, as she frequently fled her home with bruises and injuries over the course of their marriage. When she divorced him for the first time, he threatened to kill their children, forcing Ms. Lhamo to remarry him.
While it may seem like a feminist issue on the surface, the authorities’ ignorance actually reflects a much larger, deeper ethnic prejudice. As a Tibetan, Ms. Lhamo was a minority, and according to Human Rights Watch, her case “illustrate[s] the Chinese government’s long-running mistreatment of Tibetans,” stemming from tense relations after the failed Tibetan revolt against Chinese occupation in 1959 (2020). Since 2006, the government has forcibly relocated and created “near complete restriction on the freedom of movement” of over 2 million Tibetans (Minority Rights Group International, 2017). Even before any domestic abuse occurred, Ms. Lhamo was already a victim of injustice because of her national origin. However, Chen’s report does not mention this, reflecting a broader lack of attention to ethnic individualities within the global feminist context.
As Syracuse University professor of Women’s and Gender Studies Chandra Talpade Mohanty writes in Feminism Without Borders: Decolonizing Theory, Practicing Solidarity (2003), “systems of racial, class, and gender domination do not have identical effects on women in Third World contexts” (p. 55). As such, a Tibetan woman such as Ms. Lhamo would not receive the same treatment as a Han Chinese woman would because of her ethnicity (the Han ethnic group is the largest in China). Furthermore, she had lower socioeconomic status, producing additional challenges. For poor minority women like Ms. Lhamo, human rights have “always been mediated by a coercive, racist state” (Mohanty, 2003, p. 54). According to Chen’s report,
Even after “she sought help from All-China Women’s Federation, the government agency in charge of protecting women’s rights,” Ms. Lhamo was denied justice “when an official dismissed her injuries, saying other women were worse off” (Chen, 2020). This prompted her to file for divorce a second time, after which the police did bare minimal investigation and let her husband escape any consequences yet again.
Ms. Lhamo’s experiences and tragic death went unaddressed by the Chinese government, with the Communist body going as far as censoring social media hashtags like #LhamoAct (Chen, 2020). As Mohanty writes in Feminism Without Borders, “Chinese women ‘disappear’ in popular and academic discourses on China, only to reappear in ‘case studies’ or in the ‘culture garden’” (2003, p. 76). Ms. Lhamo is a clear example of this. Chinese feminist issues have gone largely unaddressed in Western media and academia, only resurfacing when case studies such as Ms. Lhamo’s occur. Western feminisms often fail to incorporate the “diverse struggles and histories” of women from other countries, more commonly lumping them together to further their own agendas (Mohanty, 2003, p. 46). Like Mohanty, professor Amrita Basu of Amherst College recognizes the necessity of diversity inclusion, arguing that when feminist discourses fail to identify and consider cultural influences on women’s experiences, particularly regarding gender violence, women’s “identities as Bosnian, African American, or poor women may be muted” (2000, p. 76). These are only a few examples of the several aspects that comprise one’s identity.
To make any progress towards true gender equality in China, the diverse population and cultures must be considered. This includes diversity in sexuality, which Chen also does not address in her report. Like the United States, China’s political and social structures are based on heterosexism and homophobia. As feminist scholar Audre Lorde writes, heterosexism is the “belief in the inherent superiority of one form of loving over all others and thereby the right to dominance” (1985, p. 3). Currently, China’s Domestic Violence Law “does not protect gay couples,” and though it does protect cohabitating couples, Chinese government official Guo Linmao noted at a press conference that
Essentially, he meant gay couples do not encounter domestic violence, which is untrue.
Chen’s report echoes this false assertion, though perhaps not intentionally, quoting Chinese women’s rights lawyer Wan Miaoyan, “But why does it take a tragedy and a victim to sacrifice herself in such a bloody way before we make progress on law enforcement?” (Chen, 2020). This statement assumes all domestic violence victims are women. However, according to the United States National Intimate Partner and Sexual Violence Survey (2010), members of the LGBTQ+ community “have an equal or higher prevalence of experiencing IPV [intimate partner violence], SV [sexual violence], and stalking as compared to self-identified heterosexuals” (CDC, p. 1). China is certainly not exempt from this pattern. In fact, a 2009 survey conducted by the Chinese organization Common Language found that of the 900 participating lesbian and bisexual women, “42.2 percent reported intimate partner violence with same sex partners” (UNDP, 2014, p. 28). In every aspect of injustice, LGBTQ+ folks continue to fight for recognition and support, especially when the government refuses to protect them. As a member of the heterosexual hegemony, this is one battle that Ms. Lhamo did not have to fight, which some may consider a privilege despite her tragic situation.
Since the COVID-19 pandemic started, instances of domestic and intimate partner violence have significantly increased due to lockdown and quarantine policies. According to another domestic violence report from The New York Times (2020), Chinese “activists, citing interviews with abused women, estimate the numbers are far higher, especially after millions were placed under lockdown during the pandemic” (Wee). As Basu writes, “Women’s movement activists have employed the term violence against women in describing diverse practices cross nationally… in order to assert the global dimensions of a single problem” (2000, p. 78). Unfortunately, partner violence is not a single problem. It is stuck in a web of complex, intersectional relationships between sex, race, ethnicity, socioeconomic class, sexual orientation, and more. However, despite the multitude of experiential and cultural differences, women like Ms. Lhamo still share many similarities and often unite on these common grounds. China’s women are not alone, and like every country around the world, China has a long road ahead to achieving gender justice.
The passing of Supreme Court Justice Ruth Bader-Ginsburg left the United States in insurmountable mourning. While many of us took time to reflect on the life of a human rights icon, conservatives fixated on the opportunity to pack another conservative justice into an already ideologically polarized Supreme Court (hereto referred to as, “SCOTUS”).
Supreme Court Justices Clarence Thomas and Samuel Alito also wasted little time mourning the loss of a longtime colleague and friend. Within a month of her passing, both justices were expressing their disgust over legal precedent created in the landmark 2015 Supreme Court decision of Obergefell v. Hodges, legalizing same sex marriage. Thomas questioned the courts involvement in the case to begin with:
“It would be one thing if recognition of same-sex marriage had been debated and adopted through the democratic process, with the people deciding not to provide statutory protections for religious liberty under state law. But it is quite another when the Court forces that choice upon society through its creation of atextual constitutional rights and its ungenerous interpretation of the Free Exercise Clause, leaving those with religious objections in the lurch.”
The Trump administration’s appointments of justices Neil Gorsuch and Brett Kavanaugh, and nomination of Amy Coney Barrett to the bench would certainly tip the balance in favor of conservatives who are hard pressed on overturning Obergefell.
However, I propose in this article that the legal precedent set by Obergefell is safe and here to stay. I will defend my opinion through an analysis of five supporting arguments; the textualist interpretation of law by Supreme Court Justice Neil Gorsuch, the court principle of stare decisis, growing empathy and support for same sex couples, the Full Faith and Credit Clause of the United States Constitution, and the potential for legislative intervention.
Supreme Court Justice Neil Gorsuch
Supreme Court Justice Neil Gorsuch has not been the pariah conservatives had hoped for when President Trump appointed him to the SCOTUS. Gorsuch is a textualist; someone who interprets the law by how it is written.
In July of 2019, David Savage of the Los Angeles Times said of Gorsuch, “He is a libertarian who is quick to oppose unchecked government power, even in the hands of prosecutors or the police. And he is willing to go his own way and chart a course that does not always align with the traditional views of the right or the left” (qtd. in Ballotpedia).
We saw evidence of textualist interpretation in June of 2020, when Gorsuch joined Supreme Court Justice John Roberts and the liberal majority in Bostock vs. Clayton County; a ruling that states that Title VII of the Civil Rights Act protects gay and transgender employees from employment discrimination (Leonardi).
Gorsuch was right in his interpretation. In the majority opinion, Gorsuch determined that it would not be possible for an employer to discriminate on an employee on the basis of their sexual orientation or gender identity without also discriminating on them on the basis of sex. Discrimination on the basis of sex is prohibited by law, therefore civil rights protections are extended to gay and transgender employees.
It sounds like a clear-cut interpretation, but conservatives were furious with Gorsuch for his ruling. There was a public outcry, with evangelicals and right-wing media calling Gorsuch a traitor and sell-out (Arkes, Perano). However, Gorsuch made his ruling based on an interpretation of law that was already established. While it remains to be seen how he would respond to an opportunity to overturn Obergefell; textually speaking, I have a hard time believing Gorsuch will join a conservative majority in overturning existing precedent.
Relatively few people know about the court principle of stare decisis, but this Latin phrase translates to mean “…to stand by that which is decided” (Young). Generally, this means that once the court has established a legal precedent, it usually commits to uphold that legal precedent when ruling on similar cases.
While this has been a common court principle throughout history, I consider it imperative to point out that Supreme Court Justice Clarence Thomas has made it abundantly clear to his colleagues that he does not believe in being bound to the court principle of stare decisis. Thomas wrote, “When faced with a demonstrably erroneous precedent, my rule is simple: We should not follow it” (qtd. in Reuters).
With the exception of Thomas, the SCOTUS has remained steadfast in their position, reluctant to overturn precedent without significant rationalization. Overturning Obergefell would mean the potential revocation of the marriages of hundreds of thousands of same sex couples. It would be irretrievably damaging to the Court’s image if they disrupted the lives of hundreds of thousands of Americans without irrefutable proof that Obergefell is infringing on constitutional liberties.
Americans Support Same Sex Marriage
Public opinion has historically had minimal impact on SCOTUS decisions, but the latest studies by researchers show that this has changed in recent years. One research collaboration, SCOTUSPoll, concluded “that the court’s position in every major case this term was exactly in line with public opinion” (Smith). What does that mean for the future of Obergefell?
Well, support for same sex marriage has grown extensively since the SCOTUS ruling in 2015. A recent survey conducted by the Public Religion Research Institute (PRRI) “…found about 70% of Americans said they support granting same-sex couples the right to marry — the highest percentage of supporters the survey has recorded. 28% of Americans said they opposed it” (Andrew). Republicans even showed increased support. The same survey conducted by PRRI found that “…50% of Republicans say they support same-sex marriage, their percentage of support still jumped since the 2017 survey when 42% supported it” (Andrew).
The once stable position of the Catholic Church has also seen a remarkable shift, when a documentary premiered and revealed Pope Francis declaring support for civil unions of same sex couples (Horowitz). While civil unions are not the same as marriages, it is the first time the Catholic Church has expressed any form of support for same sex couples.
Corporate America is another area seeing improvement in their support of same sex marriage. Companies like Nabisco have come under fire from the right-wing conservative coalition–One Million Moms–over commercials expressing messages of inclusion, acceptance, and support for same sex couples. They have organized boycotts in an effort to impede further progressive stances, but these boycotts are mainly symbolic.
However, the biggest confirmation of this shift in support for the LGBTQ+ community may be the growing number of openly gay and transgender politicians being elected to public office. Last month, Sarah McBride, a transgender woman from Delaware, won her primary bid by over 90% of the vote. She is now poised to become the first openly transgender politician ever elected to any state senate (Rodriguez). According to Victory Fund, “Since 1991, Victory Fund has helped elect thousands of LGBTQ people to positions at all levels of government” (Victory Fund).
The level of support in this country is at all-time highs. With public opinion clearly opposing an overturn of Obergefell, the chances remain slim that the SCOTUS will choose to review any cases that attempt to reverse the 2015 precedent.
Full Faith and Credit Clause
The Full Faith and Credit Clause (FFCC) is the most disputed of my arguments. Used for the purpose of enforcing judgments across state lines, the FFCC also recognizes legal marriages contracted in another state. However, the argument has been made that the framework for the FFCC, “does not mandate recognition of same sex marriages or that it does so for limited purposes” (Singer). Prior to Obergefell, scholars also interpreted the FFCC to cover residents of states where same sex marriage was legalized, “but not nonresidents seeking to evade their restrictive home state marriage laws” (Singer).
However, with the Obergefell decision, the FFCC now provides fundamental support for same sex marriage. To stress this argument, I need to explain two important events from the nineties: the lawsuit, Baehr v. Miike, and the Defense of Marriage Act (DOMA).
In 1993, Baehr v. Miike, “was a lawsuit in which three same-sex couples argued that Hawaii’s prohibition of same-sex marriage violated the state constitution” (Wikipedia, “Baehr v. Miike”). The Supreme Court of Hawaii ordered the case reviewed by a trial court to determine whether or not the state was justified in prohibiting same sex couples from marrying. The state failed to present a convincing argument, and the judge ruled that excluding same sex couples from marriage was indeed discrimination (Lambda Legal).
The ruling in Baehr v. Miike panicked conservatives in Congress, who recognized that “a redefinition of marriage in Hawaii to include homosexual couples could make such couples eligible for a whole range of federal rights and benefits” (Wikipedia, “Defense of Marriage Act”). That’s because legalizing same sex marriage in Hawaii would mean forcing other states to recognize same sex marriages from Hawaii under the FFCC. In response, they passed legislation known as the Defense of Marriage Act (DOMA).
DOMA was a straightforward law passed by Congress during the Clinton administration. “It defined marriage for federal purposes as the union of one man and one woman, and allowed states to refuse to recognize same sex marriages granted under the laws of other states” (Wikipedia, “Defense of Marriage Act”). The intention behind DOMA was to create a barrier to the FFCC, preventing states from having to recognize same sex marriages that were performed in states where it was legal.
The SCOTUS cases of United States v. Windsor in 2013 and Obergefell v. Hodges in 2015 ruled the two sections of DOMA unconstitutional, thus legalizing same sex marriage and restoring the power of the FFCC to recognize same sex marriages across state lines.
The 2020 national election is probably the most important election of our lifetime. Learning from the 2016 fiasco, we know better than to rely on polling to indicate the winners in various races. However, I believe we are going to see a much-needed change in power.
A Democratic majority in the House of Representatives, Senate, and Presidency, would mean passing of a broad legislation known as the Equality Act. The Equality Act means exactly what it says, “…consistent and explicit anti-discrimination protections for LGBTQ people across key areas of life, including employment, housing, credit, education, public spaces and services, federally funded programs, and jury service” (HRC).
In a survey conducted by PRRI on support for legislation like the Equality Act, they found, “More than seven in ten (71%) Americans say they favor laws that would protect lesbian, gay, bisexual, and transgender (LGBT) people against discrimination in employment, housing, and public accommodations” (Vandermaas-Peeler et al.).
The main obstacle to passing this crucial legislation has been Senate Majority Leader Mitch McConnell (R-KY) and the Republican majority in the Senate. McConnell has repeatedly refused to hold a floor vote on the Equality Act, regardless of the fact that it has passed the House of Representatives. Pending any surprises in November, we should finally witness the advancement of this crucial piece of legislation.
While nobody can predict what the future holds, I contend that the arguments above provide significant obstacles to conservatives hoping to overturn the precedent established by Obergefell v. Hodges.
Joseph is a second-year student majoring in Psychology. His goal is to eventually complete his Bachelor’s degree and enter higher education for clinical psychology. Joseph currently works as a Resident Assistant on campus. His interests also lie within LGBTQ+ topics alongside the impact of mental health. In his free time, he enjoys photography, coffee drinking, and taking care of plants.