No Fantasy Island

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If ever a political cause seemed to be stillborn, it was that of same-sex marriage. Consistently invoked by conservatives as the bogeyman at the bottom of the slippery slope of gay rights, it has also been disavowed by mainstream politicians friendly to homosexuals, including (predictably) Bill Clinton. So when the Hawaii Supreme Court surprisingly held two years ago that its state constitution might require recognition of same-sex marriages, it seemed most unlikely that this decision could have any lasting political impact, in Hawaii or beyond. Public opinion there ran two to one against gay marriage. The governor said he thought the court had been wrong. Some called for amending the state constitution to overrule the court. The worries were nationwide: if same-sex marriage were recognized in Hawaii, it would become an issue everywhere in the United States.

Present law in most states gives same-sex couples at least a colorable claim to have their Hawaii marriages (if they are legalized) recognized in other jurisdictions. As a general rule, most states honor each other’s marriage laws. That’s why a heterosexual couple can get married during their vacation in Reno and have their marriage recognized back home in Atlanta. But there’s an exception when the out-of-state marriage violates a “strong public policy” of the home state. The claim that the public-policy exception applies to same-sex marriage will be stronger in states that criminalize sodomy than it will be in states that prohibit anti-gay discrimination, but the issue will have to be litigated anew in each state. And marriage is also significant for some federal purposes, such as Social Security, military pensions and immigration. Such national implications are unlikely to warm the hearts of Sam Nunn or Jesse Helms. Indeed, efforts have already begun in some states to amend preemptively their marriage statutes to deny recognition to out-of-state same-sex marriages. Utah has already enacted such a law. Some have already predicted a similar amendment to the U.S. Constitution.

But there’s an odd complication to this scenario: so far, Hawaii hasn’t panicked or risen up in hostility. In fact, the response there has turned out to be remarkably mild. And there is some reason to think that Hawaii’s experience may not be unique. Gay marriage, in fact, may have more political momentum than at first appears.

In May 1993 the Hawaii Supreme Court held in Baehr v. Lewin that denying marriage licenses to same-sex couples is unconstitutional unless the state can show a compelling reason to do so. The court’s argument rested on the equal protection clause of the state constitution, which prohibits discrimination on the basis of sex. The court held that the marriage statute imposed a sex-based classification, because it “restricts the marital relation to a male and a female.” It held that the statute would, therefore, be unconstitutional unless the state could show that this classification was necessary to some compelling state interest, and it remanded the case for a trial on that question. (Because the decision was based on the state constitution and raised no federal issues, it couldn’t be appealed to the United States Supreme Court.)

The court got the law right. The formal argument why discrimination against homosexuals is sex discrimination is unfamiliar but clear. If Wilma is permitted to marry Barney, but Fred may not marry Barney, then Fred is being discriminated against on the basis of his sex. This argument, however, had always lost in court before Baehr. The Hawaii plaintiffs didn’t even bother to make it, and the court had to come up with it by itself.

The counterargument had been made by courts in other states: if lesbians and gay men are equally discriminated against, then there is no sex discrimination. This continued to persuade the one dissenting judge in Baehr. The big legal innovation in Baehr was that the court noticed that this counterargument was the same one that the U.S. Supreme Court had rejected in Loving v. Virginia, the 1967 case in which it struck down laws against interracial marriage. Virginia had defended its miscegenation law by arguing that, while it was true that blacks were forbidden to marry whites, whites were equally forbidden to marry blacks. The Supreme Court saw the crassness of that argument. If prohibited conduct is defined by reference to a characteristic, then the prohibition is not neutral with respect to that characteristic. If the use of parallel discriminations was a bad argument then, it’s bad now. (I’ve said this for years in academic articles, before and after Baehr.)

Still, the Hawaii court’s decision was unpopular. A poll a month after the decision found that Hawaiians opposed same-sex marriage by a two-to-one margin, and those numbers haven’t moved much in later surveys. Legislators felt pressured to respond somehow. In late 1993 the House Judiciary Committee held five hearings on the issue. They were raucous affairs, with hundreds of people in attendance, each hearing dragging on for hours. There was heckling and shouting, the gay community was mobilized as never before, and some witnesses complained of being threatened outside the hall.

The brouhaha may have been a surprise to the House Judiciary chair, Terrance Tom. He doubtless saw the issue as a no-lose proposition for a conservative on such a radical issue. Instead, he found himself in the middle of a political war. “I was seen as the bad guy, anti-gay, and that was not my intent,” he says, exasperated. Soon after the hearings, Tom introduced a bill, which easily passed the House, amending the state’s marriage statute to provide expressly that marriage could only be between a man and a woman. This was superfluous: the court had already construed the statute as saying that and held that the statute was presumptively unconstitutional on that basis.

The bill also included a declaration admonishing the court that the purpose of marriage is to promote the well-being of children. Since gays can’t have children by their union, the bill argued, there’s no point in allowing them to marry. This argument is weak on its faceone of the three plaintiff couples in Baehr is a lesbian couple who have raised several foster children and have a daughter of their ownand the bill met with strong opposition as soon as it arrived in the Senate. Rosalyn Baker, then a member of the Senate Judiciary Committee and now Senate majority leader, thought the idea that marriage was only for procreation had overtones of “an earlier time when women were viewed as chattel and property” and was “a slap in the face for people who choose not to have children, people who are older and get married, people who are disabled and get married.”

To avoid this problem, Baker and a number of other committee members tried to substitute a bill creating domestic partnerships for same-sex couples, with all the rights of heterosexual married couples. That, they hoped, would offer gays enough to satisfy the court but avoid the troubling symbolic connotations of marriage. But the Senate Judiciary chair, Rey Graulty, didn’t want a domestic partnership bill and quietly worked to kill it. “In my view, public opinion was not prepared to accept domestic partnerships,” he says. “It would have been a very divisive religious issue that people from the pulpit would have been preaching against. It would have been hard for people like me to go to church again.”

Eventually, Graulty and the proponents of domestic partnership agreed to a revised bill, in which almost all references to procreation-as-integral-to-marriage were deleted. This produced a curious result: the bill that finally passed stated that the court had misunderstood the purpose of marriage but said nearly nothing about what the purpose of marriage was. The bill also created a commission to study domestic partnerships for gays, and Baker’s faction was careful to stack its membership with supporters of gay rights.

It seems singularly unlikely that the legislation that was passed will prevent the Hawaii Supreme Court from recognizing same-sex marriages. A constitution limits a legislature’s powers, so a legislature can’t override a constitutional decision it doesn’t like just by saying so. Dan Foley, the attorney for the plaintiffs in Baehr, thought the bill so badly conceived that he quietly told wavering legislators they should feel free to vote for it, since they would mollify their conservative constituents by doing so (helping to stall stronger legislation) while doing homosexuals no real harm.

Why was the legislative response to Baehr so weak? Part of the answer lies in factors peculiar to Hawaii.The state is the most racially diverse in the U.S., and traditional Hawaiian culture is very tolerant of same-sex relationships. The level of tolerance is so great that the state hasn’t been willing to invoke, in its legal papers, familiar arguments that homosexuality is immoral. Deputy Attorney General Steven Michaels, who is litigating the case for the state, has refused to make what he calls “homophobic arguments” against same-sex marriage, though that’s left him with little ammunition to make his case for a compelling state interest in quashing it. This has been a source of frustration to the Mormon Church, one of the most vocal religious groups opposing same-sex marriage, which has attempted (so far without success) to intervene in the case to make the arguments that the state is not making.

Hawaii is also a solidly Democratic state: the governor and the U.S. congressional delegation have almost always been Democratic since statehood, and both houses of the legislature have always been dominated by Democrats. A constitutional amendment not only must get two-thirds of the votes in both houses but must then appear on the ballot. That would surely mobilize conservative voters. Whatever the Democrats who dominate the legislature disagree on, none of them want that to happen. There is also a strong attachment to civil rights: Japanese-Americans are more than a quarter of the population, and they still have bitter memories of the internment during World War II. One of the biggest pro-gay victories in the wake of Baehr was the Japanese-American Citizens League’s decision to endorse same-sex marriage.

 

IT’S NOT CLEAR, though, just how unique to Hawaii this strong attachment to civil liberties is. The same day that Utah legislators voted to deny recognition to same-sex couples, a similar bill unexpectedly died in the South Dakota Senate. One strain of liberalism that remains strong in America is a commitment to women’s equality. Gay rights advocates have not always hitched their wagon to that commitment, but the link is highlighted by the Hawaii court’s decision. Hostility to homosexuals reinforces traditional sex roles, which have worked to the great disadvantage of women. Deviation from the behavior traditionally deemed appropriate to one’s sex is regularly punished by the imputation of homosexuality. Indeed, the two stigmassex-inappropriateness and homosexualityare almost interchangeable. It should be possible to persuade people who believe in the equality of women that this ideal is in tension with legal discrimination against gays.

What’s more, Hawaii voters’ attitudes toward gay marriage don’t appear to be particularly unique. The most recent poll, in July, showed that a third of the nation’s voters think two people of the same sex should be able to get married if they love each other, while two-thirds are opposedalmost exactly the same numbers that Hawaii’s polls have found. And the opposition is concentrated within the older generation. Fifty-six percent of 18- to 24-year-olds are in favor.

The recent legislation in Hawaii created a commission to study the possibility of domestic partnerships for gays. Everyone expects the commission to recommend some form of statewide domestic partnership. The whole point of the commission is to give political cover to the legislature when it establishes such partnerships, which, while withholding the marriage label from same-sex couples, would give them unprecedented recognition. It’s not clear, though, that even this solution can pass muster under Baehr. After the interracial marriage cases, it would not have been acceptable for Virginia to enact a second-class, quasi-marital status for interracial couples. If the court takes the miscegenation analogy seriouslyand it looks like it doesthen the law requires equality for same-sex couples, too.

Powerful economic pressures may also induce the legislature to look beyond domestic partnerships. The state is in one of the worst fiscal crises in its history, with a budget deficit of half a billion dollars. The state constitution requires a balanced budget, and huge layoffs and program cuts are being contemplated. In a bizarre twist, gay marriage is being touted as a possible solution. Professor Jennifer Gerarda Brown, in a forthcoming article in the Southern California Law Review, argues that, if Hawaii were to legalize same-sex marriage, and if any significant number of lesbians and gay men traveled to Hawaii in order to marry, the state could gain billions of dollars in additional tourism revenue. The state’s economy would get a terrific boost, amounting to thousands of dollars per household. It’s impossible to predict what the legislature will do, but Brown’s study is the basis for the only proposal now on the table for solving the state’s biggest problem.

Tom, the House Judiciary chair, won’t say what he would do if his legislation (and, perhaps, a later domestic partnership act) proves ineffective at forestalling same-sex marriages. “I haven’t thought that far,” he says. Graulty, his Senate counterpart, is less equivocal. “There will never, ever, be a constitutional amendment as long as I am here.”

Arguably, the amount of political fallout of a decision for same-sex marriage depends on when the final decision is handed down. “Let’s suppose it was right after the election that the court came down with its decision,” says Senator Andrew Levin. “You would have two years of same-sex marriages. If the world didn’t collapse in that two years, maybe it wouldn’t be an issue by the time the election came. If it came up in the summer of 1996, I think it would make for a very hot summer.”

In fact, it will probably be quite some time before it comes up. The trial has been repeatedly delayed, and was recently postponed again, until July 1996. That’s getting close to the election, but there may be yet another postponement. The latest delay was sought by the state with the rationale that the legislature may pass a domestic partnership bill in its next session and that such a bill might satisfy the requirements of Baehr. (This argument has puzzled some observers, including Senator Matt Matsunaga. “If the state’s interests aren’t compelling,” he said, “legislation won’t make them compelling.”) The state’s legislative scenario is also probably too optimistic. Graulty points out that the commission’s work is now stalled pending appointment of new members and that the legislature is in any case unlikely to act on its recommendations in an election year. He predicts yet another postponement to let the commission finish its work. Even if the trial does happen next summer, and the trial court rules in favor of same-sex marriage, the political fallout is likely to be small. Few national politicians, and surely no presidential candidates, will stick their necks out by endorsing the result. The ruling will almost certainly be stayed pending the inevitable appeal, so there won’t be any newspaper photos of gay couples walking arm-in-arm out of Town Hall with their wedding certificates. Appeals are slow. The case wouldn’t even be argued until after the election. “The state should leave the sanctioning of marriage to the religious organizations.” And the Supreme Court is unlikely to delay its decision until the 1998 election season. The judges aren’t fools.

 

IF SAME-SEX MARRIAGE is too much for Hawaiians to take, there is another way out. Governor Ben Cayetano has offered a compromise solution to the dispute over same-sex marriage: simply remove the word “marriage” from all state documents and replace it with domestic partnerships that would be equally available to all couples, whether of the same or different sexes. “Marriage has a religious and a legal aspect,” he said before the election. “The state should leave the sanctioning of marriage to the religious organizations.” Cayetano’s proposal recognizes that when states celebrate marriages, they are seen as sanctifying certain sexual relationships. This understanding is in tension with an idea about church-state separation that has rarely been brought to bear on marriage law: the state ought not to be in the business of deciding what to sanctify.

Cayetano’s proposal has political as well as theoretical attractions. It would keep same-sex marriage off the ballot, a result that should keep the legislature’s Democrats happy. It would remove the label of “marriage” from same-sex couples, an alteration that should defuse some of the issue’s political power. And, since it would entail no legal discrimination against same-sex couples, it should satisfy the court. None of the legislators I spoke with was ready to embrace Cayetano’s proposal. Cayetano himself, struggling with the budget deficit, has given the issue no attention since he took office. Still, politics and reason are conspiring to bring that result about. Legalizing gay marriage may have the paradoxical consequence of abolishing marriage altogether.

This article appeared in the August 7, 1995 issue of the magazine.

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