The Trouble with Inclusion

By many accounts, last year was a banner year for same-sex marriage. The Supreme Court overturned the Defense of Marriage Act's (DOMA) definition of "marriage" as between a man and a woman in United States v. Windsor, and nine states extended marriage equality to same-sex couples. The beginning of 2014 has been matched by challenges to and debates over state constitutional bans on the practice--e.g. Arizona, Florida, Indiana, Missouri, Ohio, Utah, etc. Last week, Virginia AG Mark Herring announced his belief that the state's ban on same-sex marriage is unconsitutional, signaling its likely downfall.

Yet, same-sex marriage adovocates should remain cautious that such victories could "misconstrue justice," as described Yuvraj Joshi in The Trouble with Inclusion. According to Joshi, a new framework is needed to understand when the inclusion of previously excluded groups into societal institutions fails to produce just results--often because of misconceptions about the nature of the injustices faced by the excluded. Joshi writes:

Inclusion tends to focus solely or largely on the injustice that stems from exclusion and not to pay heed to other injustices. Such inclusion errs in assuming that the only or most serious injustice perpetrated by an institution is that it excludes members of a particular group, or that different injustices can be tackled simultaneously. Consequently, it is liable to leave intact the institutional framework generating those injustices.

Joshi focuses, in particular, on efforts to improve marriage and gender equality. The title of this post comes from his paper, the abstract of which states:

Attempts are being made to include members of excluded groups in societal institutions. Inclusion has been proposed as the solution to the injustice caused by exclusion. Yet, inclusion does not always achieve justice and might sometimes perpetuate injustice. This Article provides a framework for understanding inclusion that may fail to achieve social justice and uses this framework to assess the inclusion of lesbians and gays within marriage (marriage equality) and of women and minorities within organizations (organizational diversity). The former case study examines the legal and social movement for recognizing same-sex marriage while the latter engages a range of contemporary debates, including workplace diversity, gays in the military, women in armed combat and gender mainstreaming at the UN. Each shows that inclusion is less likely to achieve social justice where it misconstrues injustice, maintains the status quo, decouples from justice, legitimizes the institution or rationalizes injustice. 

CRL&P related posts:

• School district rejects proposal for gay-straight club, faces another lawsuit
• Windsor as the end of federalist minimalism in LGBT litigation?
• Six months after Dallas council’s heated gay-rights discussion, the subject will return to the horseshoe