I'm getting married in the morning
Ding dong, the bells are going to chime
Feather and tar me
Call out the army
But get me to the church on time
Be those arguements what they may, time marches on:
In May of 1993, in a suit known as Baehr v. Lewin, the Hawai'i Supreme Court ruled in favor ofit is quite possible that other states will be we're getting when we "get what we ask for"[4]. And, more importantly, to shape carefully, in our own terms, what it is we want.
We conclude that the circuit court's order runs aground on the shoals of the Hawai'i Constitution's equal protection clause and that, on the record before us, unresolved factual questions preclude entry of judgement, as a matter of law, in favor of Lewin and against the plaintiffs.The success (up to this point in the proceedings, at any rate) of Baehr v. Lewin is remarkable for a number of reasons. Most obviously, no prior case which has challenged a denial of same-sex marriage rights has been successful in any court, much less ruled in favor of by a state Supreme Court. In particular, some of the specifics of the ruling handed down by the Hawai'i Supreme Court are unprecedented. The Justices ruled in favor of the plaintiffs in Baehr on the basis of equal protection under the law regardless of sex - - not sexual orientation. They note that the Hawai'i Constitution is more "elaborate" than the federal Constitution in that it states that "[n]o person shall. . .be denied the equal protection of the laws, nor be denied the enjoyment of the person's civil rights or be discriminated against in the exercise thereof because of race, religion, sex, or ancestry" (emphasis included in Opinion). It is precisely because the state marital statutes are delimited on the basis of sex that the possibility of a violation of the equal protection guarantee arises. In other words, barring a person of one sex from engaging in an activity or withholding from them a status which is permitted the other sex (i.e. a man can marry a woman, but a woman can't marry a woman) necessarily demands careful examination under the law to insure sex discrimination is not taking place. What is important to emphasize is that by situating the question of same-sex marriage within the realm of sex discrimination, the court places a much more stringent burden on the state to prove its requirement for denial of marriage rights. The state must now argue (at the time the case is reheard in the Circuit Court) using the legal determinants of "strict scrutiny" that it has a "compelling state interest" in maintaining such discrimination.[5]Opinion by Justice Levinson, Hawai'i Supreme Court
Chief Justice Moon, Justice Burns, concurring
in Baehr v. Lewin
852 P.2d 44 at 54(Hawai'i 1993)
Perhaps just as intriguing as the way in which the Supreme Court articulated its ruling in Baehr v. Lewin is the way it came to some of its conclusions regarding what constitutes a same-sex marriage. In the Opinion written for Baehr, Justice Levinson discusses sexual orientation relative to the bonds of matrimony in a rather unusual way. He notes that "'homosexual' and 'same-sex' marriages are not synonymous; by the same token, a heterosexual same-sex marriage is, in theory, not oxymoronic." He then reiterates: "Parties to 'a union between a man and a woman' may or may not be homosexuals. Parties to a same-sex marriage could theoretically be either homosexuals or heterosexuals." (!) In other words, for the purposes of their ruling, the Justices see no significance in the fact of the plaintiffs' sexual orientation. With this statement, the Court unexpectedly and in one fell swoop divests marriage of its relationship to sexual practice. Remarking on the numerous prior judicial rulings which took pains to determine the appropriate composition of married couples and referring to the usage of these earlier determinants of marriage in the defendant's (read: the State's) argument, the Hawai'i Supreme Court "reject[s] this exercise in tortured and conclusory sophistry."
However, lest this statement by the Court immediately stimulate the booking of banquet halls and listings in bridal registries by same-sex couples, it must quickly be added that the Hawai'i Supreme Court also ruled against the plaintiffs in Baehr. Despite the Court's willingness to recognize an "evolving social order" and declare the plaintiffs entitled to equal protection, the Justices drew the line at declaring that same-sex couples have a fundamental[6] right to marry. "[W]e do not believe that a right to same-sex marriage is so rooted in the traditions and collective conscience of our people that failure to recognize it would violate the fundamental principles of liberty and justice that lie at the base of all our civil and political institutions." The Court relies on the precedent of cases which consistently link the fundamental right to marry with procreation to deny gay partners full and equal status in definitive terms. This can be viewed as a different sort of adherence to a "don't ask, don't tell" policy. Gay men and women may indeed have the right to marry, so long as they don't insist on having their homosexuality and its practice recognized.
Now, I would like to consider these judicial proceedings in light of the remarks made regarding strategies and tactics by Michel de Certeau. His conceptualization of these two always related operations provides a useful framework in which to place some of aspects of Baehr and examine the ways groups or individuals transform social space. For de Certeau, strategies are those things employed by groups or individuals in power to control knowledge, structure social life and maintain order. Tactics, on the other hand, are used by the dispossessed or the "weak" in order to infiltrate the system, instigate the break up of power and gain relief from various types of oppression, from the mundane to the most debilitating (de Certeau 34-39). Test-case litigation such as Baehr might be said to use a strategic apparatus -- the courts and the legal system -- to tactical ends. Despite their oppositional relationship to the dominant social order, those who implement tactical maneuvers can still engage in a utilization of the "vocabularies of established languages" (de Certeau 34, emphasis in original). Therefore, the contextualization of this fight by gay rights activists within the realm of legal disputation can be understood as tactical positioning. This does not always work and the regime of law is not readily penetrable in this way, but a community's ability to recognize the locations in which this kind of insertion into the strategies of power can occur is of central importance in the advent and efficacy of tactical devices.
The question of community is also crucial to Baehr for the case can be viewed as a watershed in the determination of what values, and even motives, are in operation in a definition of what constitutes the gay community. Just as it is evident that one cannot speak of marriage without addressing the law, marriage also cannot be addressed outside the bounds of an equation the sum of which is the relationship between identity and community. It also is necessary to recognize that as specifically put into play within the context of homosexual yearnings or necessities, marriage cannot be talked about without a consideration of sexual activity. Despite the Baehr Court's prima facie finding to the contrary, the subject of sexual practice looms very large over this entire debate.
When Nancy Polikoff admonishes that "we will get what we ask for" in striving for recognition of same-sex marriages, she warns the gay community that pitfalls abound in the pursuit of this goal. Primarily, her concerns are related to questions of assimilation and, to return to the language of de Certeau, of the possibility for the tactics engaged to be transformed into strategic techniques and in this new formation, utilized by forces of power -- taken up as instruments by the institutions and individuals who control the terms of redress. The net effect of this type of usurpation is not only the inability to hold onto an identifiable set of political devices, but also the loss of (oppositional) identity for the group or community fighting for its rights. The "rhetoric of radical transformation" (Polikoff 1541) has the potential for being subsumed or diluted within a desire for tangible victory. The danger here being that one might find the original goal increasingly elusive. By the same token, Polikoff is enough of a pragmatist to recognize that in certain instances, incremental "achievement is preferable [to out and out defeat], but it is not transformative" (1543, emphasis added). This, then, begs the question of what exactly, with Baehr, has been won for the gay community. On the most obvious level, it is undeniable that Baehr offers the most direct opening for gay men and women into a previously inaccessible social sphere. Still, it seems useful to take a look at a few other, less obvious ramifications that have been generated as well.
That the Justices in Baehr refused to recognize the principle of fundamental right -- ruling that the sexual orientation, that is, who the plaintiffs engage in sex with, has no relevance to the issues at question in the case -- simultaneously broadens the very meaning of marriage and constricts the actual recognition of gay men and women. Remember, the Court very clearly made a distinction between the meaning of "same-sex" and "homosexual". In other words, as my friend Moe put it, a right was won, we didn't win a right. Given the practical reality that will follow in the wake of the state's widely anticipated defeat at the next stage in this lawsuit, this distinction between what was won and the way it was won might seem like just so much quibbling. As Evan Wolfson, a Lambda lawyer serving as co-counsel in Baehr put it, "whether or not you particularly want to win -- you sure as hell do not want to lose"[7].
Community is often characterized in terms of unities, where people are connected by a variety of shared circumstances -- interests, customs, traditions, commitments, etc. But just as unity can be understood as a way of imagining, practicing and acknowledging connection, it can also be a way to separate, assimilate and obliterate difference.Be that as it may on the level of the judicial proceedings, the implications of this "win" must be considered for their potential to generate highly contested meanings for the notions of community and, in fact, victory. In their article, "Communities, Environments and Cultural Studies," Laurie Anne Whitt and Jennifer Daryl Slack address just these sorts of questions. Picking up on a theme traced by numerous others, they are particularly concerned with the way the notions of "unity in sameness" and "community" are frequently conflated into a misplaced prerequisite to the viability of political action (Whitt and Slack 13). In contrast to Iris Young's "politics of difference" which "conceive the social process in which we move as a multiplicity of actions and structures which cohere and contradict, some of them exploitative and some of them liberating" (Young 315), a "unity in sameness" is always developed from a formulation of moral hierarchies and exclusionary practices (Whitt and Slack 13).
Whitt and Slack,
"Communities, Environments and Cultural Studies", p. 10
This is of interest to us here, for an oft articulated longing on the part of gay women and men is to "be treated the same as anyone else" in the social sphere and/or to be recognized as "just like everyone else" within the judicial and legislative arenas. Among other things, the ability to marry will certainly provide a significant legal framework to fulfill such a desire. But the emphasis in the Baehr ruling is not on the enhancement or acceptance of a broadly inclusive practice of homosexuality, or relationships in general, but rather, the classification and insertion of certain kinds of personal affiliations into the delimiting category defined as marriage. Replicating or conforming to a model some view as the "hetero-relationiz[ing]" (Homer 528, footnote omitted) of subjectivity holds out the potential for reinforcing divisions within the gay community based on typologies of relationships and sexual practice. While it has been observed that the regulation of sex, particularly the criminalization of homosexuality, had a hand in bringing about the very conditions necessary for the formation of a gay community (Weeks 103), the oppressive forces at work have been, by and large, inter-communal. One way to view the ruling is Baehr is for the potential it holds out for generating sites of intra-communal conflicts.
In the last section of this paper, I have tried to suggest some concerns that arise out of Baehr. I want to be careful to position these remarks in the realm of possibility for a number of reasons. First, I harbour doubts as to whether, regardless of the outcome of the next stage in this case, the right to same-sex marriage will ever become a reality in Hawai'i. I don't think this is simply sad-sack pessimism on my part, given that opponents have gone so far as to propose an amendment to the state constitution in order to bar such an occurrence. At this point, discussing the ramifications of Baehr may be akin to bailing out a boat in a rainstorm. Second, and more importantly, it seems to me, is a desire to be mindful of the distinction between conditions of allowance and the activation of forces within circumstances. An attempt to anticipate some of the possible repercussions ofBaehr is not necessarily an indication that their occurrence is a forgone conclusion or is imminent. Nor is it my intention to suggest that casting a light upon some of the particulars of a battle being waged in the legal arena means that consideration of these issues should remain there.You're equal but different, you're equal but different The Au Pairs
You're equal but different, you're equal but different
It's obvious, it's obvious, it's obvious, it's obvious
It's obvious . . . so obvious
Of course, particularly in the American context, experience has shown that litigation is often the most practical and defensible means by which oppressed groups gain their rights. It stands to reason that the most indepth writing on the subject of same-sex marriage should occur within the legal community, often subdivided along sexual orientation lines. After all, marriage is a product of law. Still, it is much more than that. Marriage confers status, secures identity, regulates intimacy and produces industry. With this in mind, I call for the gay community to foster far more critical dialogue on a wider range of concerns around marriage than can be contained within the limited framework of a "we want what they have" equation. That a legal challenge such as Baehrtakes place and, for the sake of argument, is entirely victorious, is not an indication that 1) this discussion has occurred and has been concluded or 2) the terms on which the gay community accepts this victory can ever be entirely resolved and laid to rest.
Finally, I would like to offer law professor Drucilla Cornell's deliberations upon the function of equal rights claims as it might pertain to the issue at hand. At first glance, this may seem a somewhat paradoxical strategy given my call for a consideration of these issues from positions outside the bounds of legal discourse. However, it is not my intention to deny the effectiveness of legal debate, but rather to establish a more fluid exchange between various ways of thinking about the problem. As a legal theorist, Cornell is interested in thinking about law both in its application as a concrete transformative tool and as a device fully implicated in the ways in which the social is conceived and controlled or policed.
For Cornell, striving for equal rights contributes to tendencies to gravitate towards a similar sameness (if that's not too redundant) that Whitt and Slack view as problematic in some formations of community. Cornell's recommendation is to construct a category of "equivalent rights" based on ideas of "capability and well-being" (287), and "the reconceptualization of equality beyond the likeness model" (288). Her concept of equivalence requires a validation of difference in choice of partner, sexual practice and, more importantly, the very form of relationships. It is necessary for the gay community to develop tactics both of resistance and which engage transformative action that are inclusive of logics of equivalence. The danger in not doing so lies in the defining of self according to another's rules and an "obliterat[ion]" of difference (292). Especially a difference predicated on sexual desire and practice.
I would like to suggest that it is in the formulation of these tactics, in the selection and preparation of sites of battle, that a commitment to ensuring a "politics of difference" takes hold. It is in the very language that a community uses to articulate its goals that the value of equivalence is rendered meaningful. The point has been made earlier, that with the success of Baehrrestrictions on marriage will be removed for same-sex couples. This, in and of itself, is laudable. The obstacle that the gay community then faces is that in obtaining an equal right, it has abrogated its responsibility to create the terms leading to a recognition of equivalent rights, both within and outside the community. The solution to this is not to reject out of hand any maneuvers that do not inherently contain structures offering a kind of imprimatur to conditions of difference (though I would say these generally ought to take precedence). Better, we should take care to ensure that the perspectives which are developed as starting points for a realization of justice include both the possibility of achieving attainable goals and the allowance of ongoing negotiation as to the meaning of those achievements. With this continuing evaluation must be a recognition for the need for a kind of vigilance that engages a critical practice of selecting goals. This critical practice must work to incorporate the needs and desires that lie beyond classifiable method--either as tactical or strategic. Because though we may not want to lose, winning should not end up looking like an allotment of limited resources.