The Case for Same-Sex Marriage: From Sexual Liberty to Civilized Commitment

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Suddenly, thanks to a surprising decision by the Hawaii Supreme Court, the issue of same-sex marriage is sweeping the country. Two-thirds of all Americans are reportedly opposed to the idea - but the discussion has just begun. Should the institution of marriage be redefined and expanded? Or should the state continue to restrict the choices of its gay and lesbian citizens? In this timely book that just might change the law of the land, William Eskridge offers arguments that will be controversial among both gays ...
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Overview

Suddenly, thanks to a surprising decision by the Hawaii Supreme Court, the issue of same-sex marriage is sweeping the country. Two-thirds of all Americans are reportedly opposed to the idea - but the discussion has just begun. Should the institution of marriage be redefined and expanded? Or should the state continue to restrict the choices of its gay and lesbian citizens? In this timely book that just might change the law of the land, William Eskridge offers arguments that will be controversial among both gays and straights. First, he demonstrates that only the modern West has failed to provide some form of sanction for same-sex unions. For those who claim that marriage has never been anything but heterosexual, Eskridge's historical evidence presents a profound challenge. Second, he argues that legalizing same-sex marriage would help civilize gays. Whether because of the biology of masculinity or the furtiveness of illegality, gay men have been known for their promiscuous subcultures. Promiscuity has encouraged a cult of youth worship and has contributed to the stereotype of homosexuals as people who lack a serious approach to life. It is time for gay America to mature, and there can be no more effective path to maturity than marriage. Third, same-sex marriage would help civilize America. A civilized polity assures equality for all its citizens. Without full access to the institutions of civic life, gays and lesbians cannot be full participants in the American experience. Gays and lesbians love their country, and have contributed in every way to its flourishing. Along the way, Eskridge discusses the controversial issue of raising children in gay households. Finally, in an Appendix, he includes letters from a broad cross-section of American clergy - Protestant, Catholic, and Jewish, evangelical, traditional, and modern - in support of legalization. The Case for Same-Sex Marriage will catalyze arguments from coast to coast and stand at the forefront of political
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Editorial Reviews

Publishers Weekly - Cahners\\Publishers_Weekly
It is difficult to see that this study, by a professor at Georgetown Law Center, will change many minds. Although Eskridge's prose is not turgid, it definitely is legalistic, so his appeal will be more to judges and lawyers than to the general public. His argument for same-sex marriages is that the focus of wedlock is on interpersonal commitment and that, in denying same-sex couples the right to contract permanent unions, the law is denying gays the same rights that straights enjoy. And he demonstrates that, in case after case, homophobia is at the root of that denial, even though various other rationalizations are advanced, including historical precedent, the probability that no children will be produced and, in one amusing instance (in Hawaii), that tourism will be discouraged. Some may find it surprising that one segment of the homosexual community strongly opposes marriage of any sort.
Publishers Weekly - Publisher's Weekly
It is difficult to see that this study, by a professor at Georgetown Law Center, will change many minds. Although Eskridge's prose is not turgid, it definitely is legalistic, so his appeal will be more to judges and lawyers than to the general public. His argument for same-sex marriages is that the focus of wedlock is on interpersonal commitment and that, in denying same-sex couples the right to contract permanent unions, the law is denying gays the same rights that straights enjoy. And he demonstrates that, in case after case, homophobia is at the root of that denial, even though various other rationalizations are advanced, including historical precedent, the probability that no children will be produced and, in one amusing instance (in Hawaii), that tourism will be discouraged. Some may find it surprising that one segment of the homosexual community strongly opposes marriage of any sort. (May)
Ray Olson
Eskridge puts pounds of flesh on the bones of Andrew Sullivan's eloquent plea for gay marriage in "Virtually Normal" (be not afraid, though: 100 pages of the book are appendix and notes). He summarizes the history of same-sex marriage from Mesopotamia to Adam-and-Steve/Madam-and-Eve relationships among American Indians, which were accepted by the U.S. government. He analyzes gay activists' 40-year-old argument about marriage (is it a desirable civilizing influence or a capitulation to social oppression?), the "mainstream" objections to gay marriage, the constitutional arguments supporting the right of any U.S. resident to marry, and also arguments for limiting that right. He is squarely in favor of same-sex marriage, but only very occasionally does he not anchor his arguments in cases and the penumbra of judicial opinions. Finally, he avers that suppressing homosexuals is bad for society and that failing to extend marriage to them is a blot on a nation that prides itself in legal equality.
Kirkus Reviews
A careful argument for same-sex marriage that answers a range of objections.

Eskridge, a law professor (Georgetown Law Center) who served as a co-counsel in a federal gay-marriage case, writes eloquently in favor of same-sex marriage. Not only does he answer some of the mainstream's reservations (marriage is only for procreation, allowing marriage goes beyond tolerance of homosexuality and forces society to approve of it, etc.), he also addresses some objections from within the gay community. For example, to critics who claim that marriage is inherently patriarchal, he argues that, since there is no gender-based inequality between same-sex partners, legalizing their marriages could provide a model for democratizing the whole institution. He also discusses same-sex unions throughout history and in a range of non-Western cultures, including China, the Sudan, and other parts of Africa, showing that it is only in the modern West that these unions have been so strongly prohibited. In an appendix, Eskridge includes endorsements of gay marriage from clerics of various denominations. Some readers will find Eskridge a bit righteous. The haughty tone of his subtitle is not absent from the text; it is clear that he thinks monogamous, committed relationships are morally better than others. The idea that gay people have good reason to be suspicious of any state endorsement of a particular form of sexuality does not get a fair hearing here. However, the author makes a sound case for the notion that without marriage, gay people are second-class citizens.

Eskridge has studied the opposition and answered it lucidly, though his book might be more palatable if it were less moralistic.

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Product Details

  • ISBN-13: 9780028741369
  • Publisher: Free Press
  • Publication date: 5/28/1996

Table of Contents

1 Civilizing Gays, Civilizing Straights 1
2 A History of Same-Sex Marriage 15
3 The Debate Within the Lesbian and Gay Community 51
4 Mainstream Objections to Same-Sex Marriage 87
5 The Constitutional Case: The Right to Marry 123
6 The Constitutional Case: Discrimination 153
Epilogue: Fear of Flaunting 183
Appendix: Letters from the Faithful on the Legal Recognition of Same-Sex Marriage 193
Notes 219
Court Cases 263
References 269
Acknowledgments 289
Index 291
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First Chapter

Chapter 1

CIVILIZING GAYS, CIVILIZING STRAIGHTS

Americans are romantics. We fantasize about finding our "one true love." For most of us, that fantasy culminates in a proposal of marriage, a religious ceremony, and a honeymoon. In the fairytale romance the couple live happily ever after, sharing mutual love, perhaps creating a larger family, and parting only at death. Reality is seldom as good as fantasy, but the attractions of marriage maintain a powerful hold on our imagination and aspirations.

Ninia Baehr shares that American dream. She is engagingly intellectual, a woman of personal as well as physical beauty. Fawnlike, she has brown eyes that engulf you with understanding and alert sympathy. Slight of build, Ninia is anything but frail. She is enthusiastically engaged with life. Spiritually, she is something of a romantic. Now thirty-four years old, she wants to be able to look back on her life and know that there was someone she loved so much that she was willing to pledge lifelong fidelity to that person. Although Ninia had dated ardently in her twenties, she never found the right person. Then her mother introduced her to Genora Dancel in June 1990.

Genora has happy, dancing brown eyes. Her broad, dimpled smile and friendly, easygoing disposition belie her serious work ethic. For much of her adulthood she has held down more than one job. In 1990 one of her jobs was as a technical engineer for KHET, the PBS television station in Honolulu. There she met C. J. Baehr (Ninia's mother), who worked in another department. They liked one another, and C.J. told Genora about her wonderful daughter Ninia, a lesbian (Genora made a mental note of that). One day Genora waswaiting outside the station when Ninia came to pick her mother up. Upon seeing Ninia in the car, Genora was impressed with her beauty. When Ninia saw Genora, she thought, "Oh my God, this woman is perfect!" On the ride home Ninia asked her mother about the woman she had just seen. C. J. explained, "Oh that's my wonderful friend Genora; I hear she's a lesbian. I'd be happy if she were your friend, too. Why don't you meet her?" Ninia was interested.

Several days later Ninia came calling at KHET. Both she and Genora were exceedingly nervous, but mutual friends say that sparks were flying from both sides. The two women went out for drinks. That night Genora called C. J. for advice about how to proceed, but Ninia herself happened to answer the phone. They spoke for hours, indicating to each that this was a relationship that needed to be explored. In the course of dating for several months Ninia and Genora developed a warm friendship and found they had many interests in common. Mainly they were delighted just to be with one another. Each thought of the other when they were apart, looked forward to their time together, and realized that it was becoming increasingly hard to imagine life without the other.

When Genora traveled to San Diego for a technical training course in September, the pain of separation for each woman was intense. Ninia called every day. During one call Genora said, "When I get back, you'll know that I love you." She was referring to an engagement ring she had purchased, a stunning arrangement of three rubies and two diamonds set in gold. Genora paused and then popped the question, "Will you marry me?" A microsecond later Ninia answered, "Yes!"

At this point most couples would announce their engagement to their families, friends, and coworkers. Most couples would set a date for the ceremony and obtain a marriage license. These steps were not possible for Ninia and Genora. Lesbian and gay couples are not allowed to marry in the United States.

Still, Genora Dancel and Ninia Baehr were prepared to consider themselves committed to each other. They began to plan their life together. As one step in that plan they decided to change their life insurance policies to name one another as beneficiaries. To their surprise, the insurance companies refused to make the change, allowing only legal spouses, not unmarried partners, to be named as beneficiaries. The couple sought advice about this policy from Bill Woods, a lawyer and longtime gay activist in Honolulu. Woods mentioned that Hawaii's discrimination against same-sex couples might be vulnerable to constitutional challenge and asked if Baehr and Dancel were interested in such a challenge. He suggested that other couples might be interested, too.

This was a tough decision for Baehr and Dancel. The couple strongly support domestic partnership laws, through which same-sex couples can register their partnership and obtain some of the legal benefits of marriage. The question was, should they work for Honolulu or the state of Hawaii to adopt a domestic partnership law, or should they leapfrog domestic partnership and seek full marriage rights? As a feminist scholar and historian, Baehr was aware that many women consider marriage to be an oppressive institution that has traditionally bound women to subordinate roles. Her own parents' marriage had ended in divorce, and the motive of a relative who was about to enter into a marriage had more to do with an unexpected pregnancy than lifelong love and commitment. Baehr had no illusions about marriage, but it galled her that so much fuss is made over the most ill-fated different-sex marriage while the most committed same-sex couple is typically ignored. "Why shouldn't Genora and I have the same right as everyone else?" she asked.

For Dancel it was less the feminist criticisms of marriage than the publicity from a lawsuit that presented a problem. In the closet to her family and most of her coworkers, Dancel was apprehensive about coming out. Would her parents still love her? Would her coworkers treat her differently, even shun her? Would she lose her job? Would she suffer public harassment? These were not hypothetical concerns. Dancel had occasionally heard vicious antihomosexual remarks from her coworkers. In light of Dancel's delicate situation, Baehr was perfectly willing to forgo the opportunity to mount a challenge against discrimination. Dancel, in turn, agreed with Baehr's view that their relationship stood on an equal footing with any heterosexual one and that they should not be ashamed of their sexuality or hide their union. "When you're told you can't get married, you feel like a second-class citizen," Dancel noted. After much soul searching, the couple notified Woods that they would be interested in participating in a constitutional challenge to Hawaii's discrimination against same-sex couples.

On December 17, 1990, Baehr and Dancel fried an application for a marriage license with the Hawaii Department of Health. They were joined by two other couples: Tammy Rodrigues and Antoinette Pregil, and Pat Lagon and Joseph Melilio. All three couples met the requirements for a marriage license except for the requirement that the applicants be of different sexes. Their view was that this discriminatory requirement is invalid and in conflict with both the Hawaii and United States Constitutions. John C. Lewin, the state's director of health, requested an opinion from the state attorney general as to the legality of denying same-sex couples state marriage licenses.

On December 27, the attorney general opined that the state's discrimination was lawful. Admitting that "the right to marry is considered to be a fundamental one" under the United States Constitution, the attorney general insisted that this fundamental right is not available to same-sex couples. Under his view, constitutional rights in this arena are limited to decisions "to marry and raise [a] child in a traditional family setting." The attorney general followed the approach of the Kentucky Supreme Court, which had said in 1973, "Marriage has always been considered as the union of a man and a woman."

In accord with this legal opinion, the Hawaii Department

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