Judge Kevin Chang of the Hawaii First Circuit Court will deliver a ruling in August that could make same-sex marriage legal nationwide. The ruling follows a late-April vote by the Hawaii Senate that killed a bill designed to override the landmark 1993 decision by the Hawaii Supreme Court to issue marriage licenses to same-sex couples unless the state can find “compelling state interest” to discriminate against them. But rather than celebrating what seems to be the imminent state sanctioning of same-sex relationships, some gays and lesbians have greeted the accumulating good news with mixed feelings. Is legal marriage for same-sex couples a misguided attempt by gays and lesbians to fit into a heterosexist ideal of intimate relationships, or a crucial leap forward for equal rights?
One group of critics argue that there are more pressing issues on the agenda. “I would have thought our issue would be violence against gays,” writes Kate Clinton in The Progressive (March 1996). “Or I would have predicted we would be organizing around the Supreme Court’s upcoming ruling on the Colorado amendment [which would prohibit protected status based on sexual preference], or at least having a small action to protest that the Clinton administration did not even see fit to file an amicus brief. I would have thought we would have been out in the streets over health care.”
The fact that same-sex marriage is suddenly at the top of the gay and lesbian political agenda troubles many observers—and not all of them are anti-gay conservatives. “The marriage juggernaut now emerging from within the queer community scares me,” writes Lisa Duggan in Gay Community News (Winter-Spring 1996). Gays and lesbians have complex and often nontraditional relationships, she says, describing her own 11-year nonmonogamous relationship. “The legacy of the heterosexual reproductive family, and its associated economic and property relations, shapes our own demands for partnership recognition. But our relationships and households don’t actually match the model we’re appealing to.
Like Duggan, many gays and lesbians believe that following too closely in the tradition of straight couples will mean co-optation of encroachment on their freedom to shape relationships outside traditional structures. Still others worry that there is something invasive about letting the state get involved in what is essentially a private matter. “What business does any state have involving itself in any sort of marriage, straight or gay?” asks Lars Eighner in The Texas Observer (March 22, 1996).
He may be right, but there are plenty of benefits to having state-sanctioned marriage: Partners can automatically inherit each other’s estates; take out a joint insurance policy; share benefits from annuities; pension plans, and Social Security; jointly adopt a child; and take bereavement leave when a partner dies, to mention a few. “Although many kinds of human pairings are possible, state-sanctioned marriage is, tautologically, the only one which binds couples together in the eyes of the law,” writes The Economist (Jan. 6, 1996). “Far from being frills, these benefits and duties go to the very core of the marriage contract; no church or employer or ‘commitment ceremony’ can bestow them at one blow.”
Conservative critic Walter Berns in First Things (April 1996) unhappily concedes that the Hawaii decision will result in legalized same-sex marriage. Besides his predictable concerns about the morality of such a sweeping change, he takes issue with the process: Seventy percent of Americans are opposed to same-sex marriage, he claims, yet the decision will be made not by elected representatives but by the judicial system. And because of a practice called comity, whereby states agree to recognize all legal marriages that take place in other jurisdictions, the Hawaii decision will affect every state. So, despite a recent rash of legislation in more than 20 states to explicitly prohibit same-sex marriage, if gay couples marry in Hawaii, they will also be legally married in the rest of the United States. (Indeed, a similar movement is developing in Europe. The Dutch Parliament in April asked the government to submit legislation permitting same-sex marriages. These unions are already recognized in Denmark, Norway, and Sweden.)
Whether or not gay and lesbian couples ultimately decide to exercise the right to marry, knowing that they can is important. “Homosexuals need emotional and economic stability no less than heterosexuals,” writes The Economist, “and society surely benefits when they have it.” With divorce rates the way they are, who knows if marriage actually creates any more emotional stability than the arrangements that have kept same-sex couples together all these years? But surely there must be some psychological benefit to being given—literally and figuratively—“license” to marry.