Differentiating Assimilation
Special Issue: Law and the Imagining of Difference
ISBN: 978-1-78756-031-4, eISBN: 978-1-78756-030-7
Publication date: 12 June 2018
Abstract
This chapter uncovers the destabilizing and transformative dimensions of a legal process commonly described as assimilation. Lawyers working on behalf of a marginalized group often argue that the group merits inclusion in dominant institutions, and they do so by casting the group as like the majority. Scholars have criticized claims of this kind for affirming the status quo and muting significant differences of the excluded group. Yet, this chapter shows how these claims may also disrupt the status quo, transform dominant institutions, and convert distinctive features of the excluded group into more widely shared legal norms. This dynamic is observed in the context of lesbian, gay, bisexual, and transgender (LGBT) rights, and specifically through attention to three phases of LGBT advocacy: (1) claims to parental recognition of unmarried same-sex parents, (2) claims to marriage, and (3) claims regarding the consequences of marriage for same-sex parents. The analysis shows how claims that appeared assimilationist – demanding inclusion in marriage and parenthood by arguing that same-sex couples are similarly situated to their different-sex counterparts – subtly challenged and reshaped legal norms governing parenthood, including marital parenthood. While this chapter focuses on LGBT claims, it uncovers a dynamic that may exist in other settings.
Keywords
Acknowledgements
Acknowledgments
I thank Austin Sarat for including me in this special volume. For thoughtful comments, I thank Anya Bernstein, Guyora Binder, Michael Boucai, Mark Brandon, Megan Conway, Christopher Elmendorf, David Engel, Zanita Fenton, Lucinda Finley, Jasmine Harris, Courtney Joslin, Errol Meidinger, Tara Melish, Reva Siegel, Austin Sarat, Brian Soucek, Julie Suk, and Jordan Woods, as well as participants at the U.C. Davis School of Law Faculty Workshop, the Baldy Center for Law & Social Policy at the University of Buffalo, the Lawyers and Social Movements conference at UCLA School of Law, and the Law and the Imagining of Difference Symposium at the University of Alabama School of Law. For helpful research assistance, I thank Cameron Clark, Charlie Fletcher, D’Laney Gielow, and Rachel Granetz. I also thank the law librarians at Yale Law School and Harvard Law School.
Citation
NeJaime, D. (2018), "Differentiating Assimilation", Sarat, A. (Ed.) Special Issue: Law and the Imagining of Difference (Studies in Law, Politics, and Society, Vol. 75), Emerald Publishing Limited, Leeds, pp. 1-42. https://doi.org/10.1108/S1059-433720180000075001
Publisher
:Emerald Publishing Limited
Copyright © 2018 Emerald Publishing Limited