For Better or For Worse: Reaching the Verdict on Same-sex Marriage

by Pam Prasarttongosoth

Nearly two years ago, the Supreme Court of Hawaii ruled that the
banning of same-sex marriage was unconstitutional. On May 5, 1993, in
a divided opinion (2-1-1), the justices ruled that under the equal
protection laws, deprivation of ability to marry violated the anti-sex
discrimination clause in the Hawaii Constitution. Because marriage is
a legal relationship granting the partners many special rights and
benefits, the Court found that the State could not deny same-sex
partners access to those privileges.
	The case known as Baehr v. Lewin actually involved three
same-sex couples who applied for marriage licenses, were denied, and
then consequently filed a complaint against John C. Lewin, Director of
Hawaii's Department of Health. Baehr was first heard in the circuit
court, where on October 1, 1991, the court dismissed the plaintiffs'
case. However, on an appeal to the Supreme Court that ruling was
overturned. Lewin had argued that Hawaii was not discriminating
because the plaintiffs were not denied marriage licenses because they
were lesbian or gay, but because of "their biologic [sic] inability as
a couple to satisfy the definition of the status to which they
aspire,"and because "marriage, by definition and usage, means a
special relationship between a man and a woman." In other words, they
weren't denied licenses because they were in lesbian or gay
relationships, but because they were not heterosexual. The Court found
Lewin's arguments "circular and unpersuasive." A retrial was scheduled
to be heard in a lower court next month, where Lewin must demonstrate
compelling state interests in denying the licenses, but now that
hearing may be pushed back as far as 1997.
	Much of the Hawaii Supreme Court's decision relied heavily on
the 1964 case of Loving v. Virginia, which invalidated Virginia's
miscegenation laws, lifting the ban on interracial marriage. The
Virginia court declared that the "freedom to marry has long been
recognized as one of the vital personal rights essential to the
orderly pursuit of happiness of free [people]." The Fourteenth
Amendment prohibits the abridging of civil rights, and Hawaii's state
Equal Rights Amendment prohibits discrimination based on sex. The
Hawaii Supreme Court recognized that because marriage is a civil
right, they could not constitutionally deny same-sex couples marriage;
to do so would be discriminatory.
	The dissenting opinion was crafted very carefully; Justice
Heen wrote that because neither men nor women could participate in
same-sex marriage, that the sexes were not treated unequally since
society sees marriage as the "appropriate and desirable forum for
procreation and the rearing of children." Because, Heen continued,
same-sex marriage precludes the possibility of reproduction,
homosexual partnerships are not marriage. Of course, heterosexual
couples that are physically unable, or unwilling, to do their part to
propagate the human race, are exempt from such considerations.
	Immediately after the decision in Baehr was handed down,
Hawaii Attorney General Robert Marks asked for the court to
reconsider, but the Court refused his request. Among his many claims,
Marks argued that same-sex marriage would be bad for the economy
because the state would have to grapple with the burden of conferring
spousal benefits upon all same-sex partners living together. The next
month, a new Associate Justice joined the Court and stated that she
concurred with the Court, strengthening the decision to a majority
opinion (3-1).
	As a result of the Baehr decision, the state House Judiciary
Committee held hearings on the issue in October of 1993, which pitted
queers against fundamentalists. The chair of the Committee, Terrance
Tom, decided not to pursue the passage of a constitutional amendment
invalidating same-sex marriage. Instead, he was able to pass a law on
June 22, 1994, which narrowly defines marriage as only existing
between two people of opposite sex. In the text of the bill the
legislature expressed dismay at what they considered to be the Supreme
Court's decision to infringe on the separation of powers between the
legislative and judicial branches of government by encroaching upon
the legislature's law-making function, arguing that the Court had
overstepped its bounds of authority in granting same-sex marriage
civil rights status.
	Predictably, it appears that the threat of legally sanctioned
same-sex marriages has moved other states to consider their own
marriage statutes. Apparently in preparation for the upcoming retrial,
the South Dakota Senate considered a bill that would not allow
same-sex marriages performed in other states to be recognized in South
Dakota. As a matter of policy, South Dakota will not perform same-sex
marriage. Surprisingly, though, the bill was rejected (17-13) because
the legislators doubted that it would withstand the scrutiny of the
court. Although most South Dakotans probably would not object to this
bill, the normally quiet lesbian and gay community put together an
unprecedented organizing effort fighting the passage of this bill.
	Just after midnight on Thursday, March 2, the Utah State
Senate (27-1-1) and House (62-1-12) passed a bill banning recognition
of same-sex marriages performed anywhere. However, because the state
Constitution states that all legislative activity must be completed by
midnight, and the Attorney General may have to void the bill. The
National Gay and Lesbian Task Force and the Lambda Legal Defense and
Education Fund will campaign to take Salt Lake City out of the running
for the 2002 Winter Olympics, should the Attorney General decide the
law is valid. Because the bill's 45-day legislative session was to run
out that evening, the legislators were forced to quickly rush their
vote. It appears, however, that support for the bill in this state,
and pressure to vote anti-gay, is overwhelming.
	The decision to grant the right to marriage for same-sex
couples will have many important ramifications for the queer
community. On the path towards liberation, though, I wonder if
marriage is actually a step in the right direction, merely a
sidetrack, or perhaps something that might even be detrimental to the
movement. Marriage may help us gain respect for our relationships and
our families, as well as grant us many legal benefits, but first we
must buy into the idea that couples who marry deserve that heightened
level of esteem and privilege.
	Before we start accessorizing the bandwagon of marriage in
shades of lavender and pink, we should worry about what kind of
pressure the ability to marry will put on the queer community. To the
heterosexist, our relationships are so outside the realm of normality,
that any other deviations beyond that are expected. While a less
freakish picture of the queer would be more accurate, allowing
ourselves to accept an increasing assimilation into the straight world
would also force us to lose part of our community identity, and in
turn, sell out the parts of ourselves that cannot and will not fit
into the Ozzie and Harry image of an acceptable homosexual lifestyle.
Although it is important for people to recognize our humanity, and our
civil rights, to achieve this we need not erase our differences, and
insist that we are just like straight people.
	Even by accepting us as eligible participants in marriage, all
will not be solved. Not only are there the legal battles in every
state that will refuse to recognize same-sex marriages, but there will
also be those bigots who will never let go of the venerated symbol of
marriage as part of the exclusive domain of heterosexual life. No
matter how hard some of us may try, it is doubtful that people will
fail to remind us that we're still just a bunch of dykes and fags, and
will refuse to personally acknowledge same-sex marriage. As we spend
our valuable time and energy fighting this battle, we need to consider
how important it is for us to know that yes, the straight
establishment recognizes that we, too, can have lasting, meaningful
	One simple way in which we could redefine marriage, on a
preliminary level, would be to take away all of the legal privileges
that are attached to the process of obtaining a license, taking vows,
and receiving a certificate to file in a drawer. Removing the link
between marriage and income tax advantages, notions of community
property and inheritance, child custody, family, health insurance
would insure that heterosexual union was not inherently attached to
privileges above those accorded to homosexual ones. Taking away these
special rights would not only benefit lesbians and gays but others
like the poor, who also do not reap the same economic advantages from
marriage that are conferred upon the middle class.
	Although same-sex marriage will alter our conception of
marriage to some degree, that does not change the origins of a
practice that is so rooted in patriarchy, repression, and power
imbalances. Offering the comfort and safety of well-known, established
tradition, marriage can appear to provide a strong foundation for a
lasting relationship. But all too often, financial constraints, the
difficulty of divorce, and of course, social pressure keep married
people stay together years after they fall out of love.
	Rather than see heterosexuals straighten us out, I would hope
that the lesbigay community's contribution to society would be to
queer society's views. Instead of trying to help people forget who we
are, we should instead vow to never forget. We must challenge every
institution that has been used to exclude us and separate us from the
rest of the world, hindering our ability to achieve success. Instead
of buying into the notion of marriage as the only genuine
demonstration of love and commitment, we should strive to explode
rigid definitions of acceptable forms and expressions of sexuality.

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