I am ambivalent about a recent decision by a Kenyan judge to recognize woman-to-woman marriage as defined by Nandi customary law. On the side of “the good,” this decision recognizes tradition and custom as repositories of intimate diversity, offering useful paradigms for contemporary debates and struggles over diversifying intimate arrangements. And while it seems risky to route such diversification through ethnic traditions—one can imagine a scenario where one’s claims are barred because one is, say, Maragoli rather than Nandi—it might be possible to argue for a kind of ethno-cosmopolitanism, or to simply argue that ethnic practices have always been deeply cross-fertilized, and what we term “Nandi” or “Kisii” more properly represents various cross-hatched, adapted and adaptive patterns of living and acting. In other words, the ethnic opens up onto multiple sites of local and national exchange and appropriation and can, in fact, be the basis for multiple social, cultural, and legal modes of exchange.
That said, I think it’s necessary to be careful not to conflate woman-to-woman marriage among the Nandi, the Kisii, and the Agikuyu with contemporary same-sex marriage. Connections can and should be made between these practices, and there are ways to talk about the economic, social, and cultural work such practices enable—shared households, shared labor, the distribution of goods, the comforts of friendship and companionship, the erotics of domesticity. But it’s necessary to pay attention to the historical emergence of contemporary same-sex marriage activism, to understand its roots and shoots, branches and leaves, the claims it attempts to secure and the histories it invokes to secure those claims.
Here, I am interested in how a textured attention to ethno-historical practices can foster and support a range of intimate diversities that need not resolve into or be understood as forms of “marriage.” In conversation with friends, I have argued that ethno-historical intimate arrangements in Kenya might enable us to pass incredibly important and necessary domestic partnership legislation that would accommodate the wide variety of our living arrangements. Such arrangements could provide much-needed social and legal and cultural protections to those who live in a variety of intimate arrangements.
And while it is clear that arguments for such a diversity of intimate arrangements will need to come from those who live aslant to dominant and privileged domestic patterns—the queers might need to lead this charge—it is equally clear that many Kenyans would benefit from forms of legislation that recognized the multiple ways we live with each other. It might be that “legislation” is not quite the right angle—and here I am thinking of Katherine Franke’s very useful distinction between decriminalization and regulation/governance. Or it might be that legislation is precisely what is needed to recognize a diversity of intimate arrangements—and, really, here I am thinking about legal arrangements that would benefit come-we-stay partnerships, informal fostering arrangements, fictive kin networks, and various kinds of strange sociality that form the substance and texture of Kenyan intimate arrangements. That is, I want to complicate the modern/traditional binary by opening up a space that recognizes innovative intimate arrangements occasioned by our still unfolding modernities.
While it is useful to read this recent court decision in terms of contemporary struggles for same-sex marriage, it is also necessary to ask how this affirmation of tradition opens up local spaces for action in unprecedented ways.