JUDICIAL RHETORIC AND RADICAL POLITICS: SEXUALITY, RACE, AND THE FOURTEENTH AMENDMENT BY PETER O. CAMPBELL DISSERTATION Submitted in partial fulfillment of the requirements for the degree of Doctor of Philosophy in Speech Communication with a minor in Gender and Women’s Studies in the Graduate College of the University of Illinois at Urbana-Champaign, 2013 Urbana, Illinois Doctoral Committee: Professor Kent A. Ono, Chair Associate Professor Cara A. Finnegan Associate Professor Pat Gill Associate Professor Thomas O’Gorman Associate Professor Siobhan B. Somerville ABSTRACT: “Judicial Rhetoric and Radical Politics: Sexuality, Race, and the Fourteenth Amendment” takes up U.S. judicial opinions as performances of sovereignty over the boundaries of legitimate subjectivity. The argumentative choices jurists make in producing judicial opinion delimit the grounds upon which persons and groups can claim existence as legal subjects in the United States. I combine doctrinal, rhetorical, and queer methods of legal analysis to examine how judicial arguments about due process and equal protection produce different possibilities for the articulation of queer of color identity in, through, and in response to judicial speech. The dissertation includes three case studies of opinions in state, federal and Supreme Court cases (including Lawrence v. Texas, Parents Involved in Community Schools vs. Seattle School District No. 1, & Perry v. Brown) that implicate U.S. Supreme Court Justice Anthony Kennedy’s development and application of a particular form of Fourteenth Amendment rhetoric that I argue has liberatory potential from the perspective of radical (anti-establishmentarian and statist) queer politics. I read this queer potential in Kennedy’s substantive due process and equal protection arguments about gay and lesbian civil rights as a component part of his broader rhetorical constitution of a newly legitimated and politically regressive post-racial queer subject position within the U.S. constitutional state. My queer rhetorical analysis of judicial speech contributes to the project of bridging post-structural philosophy with everyday material relations. By theorizing queer politics in terms of institutional legal rhetoric, I offer a method for evaluating judicial argumentative choice in terms of radical queer of color political goals. ii For Derek, Robert, Catherine, Dick, and Cory, and for Elvin Odell & Grandpa Moose iii ACKNOWLEDGMENTS: In some ways, I have been working toward this document for my entire life. I first want to thank my parents, Robert, Catherine, and Dick, for insistently raising my brother Derek and I to ask questions, demand answers, and to mistrust the authoritative claims of a warmongering state. My grandparents—Mary Haight Pease, Otis Pease, Donna McCampbell, and Lois Franklin Campbell—participated in raising my brother and I in this way as well; I am lucky to have always been among family for whom knowledge and critique were of paramount concern. I could not have asked for a more ideal advisor and mentor than Kent A. Ono. Kent has a dry wit that puts mine to shame. He is kind. Kent is skilled at generously anticipating the goals and interests and desires of his advisees, and tailoring his advice and guidance to the same; he encouraged me to focus on legal rhetoric with a prescient sense of my interests and abilities that I could not have had for myself. Kent is a skilled and inspirational editor and critic of graduate scholarship. He is a tireless advocate for justice, and a material supporter of those who struggle for the same. Those of us lucky enough to have worked with Kent will not forget the experience. I made it to college at the University of Puget Sound because of the particular guidance and support of some wonderful teachers at Sehome High School, in particular: my social studies teacher Chris Michel, who taught me how teaching can be a critical and productive practice; and my debate coach, Jeff Shaw, who continues to be a friend, and an inspiration in praxis. At the University of Puget Sound, I discovered rhetoric. I could not be more grateful to the mentorship and guidance of A. Susan Owen, James Jasinski, Dexter Gordon, Grace Livingston, and Derek Buescher. The North End of Tacoma was also the place where I cemented my now fifteen-year friendship with Josh E. Anderson (this still seems like a long time to me at this point in my life); Josh provided invaluable advice for certain portions of this manuscript. When I was deciding where to get my M.A., Sue Owen (a person who exemplifies what an academic committed to using their position to resist structures of oppressive power, and to help illuminate those structures for their students, should be) told me that the opportunity to study with Cara Finnegan, and the other rhetoric faculty in Speech Communication at Illinois, would be the best thing for my hoped-for development as a critic. Sue was right. I am privileged to have had a doctoral committee of Cara Finnegan, Pat Gill, Ned O’Gorman, and Siobhan B. Somerville, and to have had Debra Hawhee as my M.A. advisor. The staff in the Department of Communication Studies—and here I thank, in particular, Mary Strum and Amy Holland—are also a large part of the reason that this document has made it to the point of submission. I am grateful for their expertise and patience. Pat taught me much of the base of literature I cite here; I should also say that any good examples of taut, concise summary and analysis in this dissertation are due in large part to Pat, and that what remains is not her fault. I first wrote a version of what is now Chapter One for Ned’s “Rhetorical Criticism” bridge class; I will be forever thankful for that assignment, and for Ned’s support of it. I submitted that paper for award and journal consideration at Debbie’s urging–– Debbie who did so much to help me start well on this path. I would not have been able to complete this project without Siobhan’s support, guidance, incisive critique, and inspiration. iv To Siobhan, in large part, I owe my participation in a vibrant and challenging community of queer scholars at Illinois. The graduate student and faculty members of this community are as responsible as anyone for the successful completion of queer projects at UIUC. I would not have liked to face the job market this year without Cara’s level and expert guidance, and she has done more than I can say to challenge and improve my writing, research, and argumentation. Cara talks sometimes about “academic family trees.” I am grateful to be on a small part of hers. I had the opportunity to be a part of many other intellectual communities at Illinois and across the country––including the Illinois Queer Studies and Rhetorical Studies Reading Groups, and the INTERSECT Program in Cultures of Law in Global Contexts––that encouraged, shaped, and contributed to this work. The faculty and graduate student colleagues in work and activism who I was lucky enough to meet, argue with, contemplate with, and learn from in the Rhetoric Society of America Queering Rhetorical Studies and Rhetoric’s Critical Genealogies workshop and seminar groups are all represented here in some way. Three final notes. First, my job, the security of my position, and my many opportunities to do public communication in Champaign would not have been possible without the courageous and talented members, past and present, of the Graduate Employees Organization, Illinois Federation of Teachers Local 6300, AFL-CIO, UIUC. It is through the GEO that I have also met some of my dearest friends––among them (this is not an exhaustive list) Sarah Baires, Christina De Angelo, Ian Hartman, Amy Livingston, Vincent Pham, Kerry Pimblott, Stephanie Seawell, Natalie Uhl, and Kathryn Walkiewicz. But I need to thank in particular those who, more than anyone, first helped me find a home in Champaign. Sam Arnold kept me afloat, and kept me laughing and joyful, throughout a difficult first year. Katie Beall, Ian Hill, and Hank Beall-Hill welcomed me into their home, and the life of their family. Kassie Lamp literally welcomed me into her home, and made it my own too. She showed me how it is necessary, sometimes, to dance your way into a Master’s degree. It took me a little longer to get to know her, but Myra Washington is my hero. When I grow up, Myra is who I want to be. She talked me down, and she was right; I survived the defense. Then there were those who were always “home” to meet me in the salt air when I could get there: my debate partners, Plumridge, Matt, and Jessica; and Anne; Jon; Hollod; Katrina; Suni; & the Michaels. This work, and work like it, would not be possible without the courage of Michael Hardwick, Tyron Garner, John Geddes Lawrence, Bradley Manning, my students at the Danville Correctional Center, and so many others who struggle in their own ways to create queerly just worlds in this unjust state. My ability to write about the rhetoric their actions engender is the most trivial example of the good works they have created. Finally, I thank a particular person. This person was, and is today: my porpoise in life; and the intellectual, moral, and joyous beacon that I follow whenever the road becomes difficult, and I fear I might lose the way. v TABLE OF CONTENTS INTRODUCTION: JUDICIAL RHETORIC AND LEGAL SUBJECTS......................................1 CHAPTER ONE: DUE PROCESS ARGUMENTS IN BOWERS V. HARDWICK AND LAWRENCE V. TEXAS....................................................................................53 CHAPTER TWO: THE “CORROSIVE