Law as Performance

Julie's post about U.S. immigration policy as a performance of control is interesting, and I think relevant to Nayan Shah's discussion of legal interpretations of Hindu marriage in "Adjudicating Intimacies on U.S. Frontiers." Rather than upholding static definitions and taxonomies, Shah sees adjudications of intimacy as "a process that simultaneously shored up the norm as it scrutinized deviancy" (118).

For example, in the Las Cruces case, the category of "Hindu marriage" became synonymous with deviance (infant marriages, polygamy, illegitimacy, etc.); in fact, a judge found that the "sanctioning of 'Hindu' marriages disputed the 'standards of morals in every Christian nation'" (124). But in the Gate, WA, case the same category of Hindu marriage was used as a substitute for--as a category nearly synonymous with--white, heterosexual marriage. The defendant's status as a civic-minded married man was used to generate sympathy for him and his wife. Hindu marriage was invoked as an assurance of morality, not as a mark of deviance, as had happened in New Mexico.

I'm engaged to be married this summer, and so the intersection between legal and intimate definitions of love and commitment is definitely on my mind. Shah suggests that this intersection is a kind of triangle between one's innermost nature, one's sexual relations and one's relationship to property and the material world. The frustrating and confusing thing is that in exercising our choice and agency concerning intimacy, we do not get to control the social meaning ascribed to our choices. In choosing to be in a monogamous, heterosexual marriage, I am inadvertently part of the performance of legitimacy and de-legitimacy that privileges one kind of relationship. My frustration is similar to that provoked by the first Berlant article we read early in the semester. She used Foucault's capillary model of power to show that power is embedded in ideology through the procedures and mechanisms of State and everyday living. I think Shah would agree with this description of power--that law, in adjudicating intimacy, is less about proclaiming edicts and more about a process of ascribing meaning to behavior and relationships. So the question remains: how do we exercise agency and enjoy intimacy within a web of power and spectrum of taxonomies? How do we perform change? Shah shows that "Hindu marriage" was not a static category in the U.S. during the 1930s, so what can we do to open up and destabilize rigid, unjust and heterosexist definitions of marriage in our current age?

- Esme