Powered by Google
Home
Listings
Editors' Picks
News
Music
Movies
Food
Life
Arts + Books
Rec Room
Moonsigns
- - - - - - - - - - - -
Personals
Adult Personals
Classifieds
Adult Classifieds
- - - - - - - - - - - -
stuff@night
FNX Radio
Band Guide
MassWeb Printing
- - - - - - - - - - - -
About Us
Contact Us
Advertise With Us
Work For Us
Newsletter
RSS Feeds
- - - - - - - - - - - -
Webmaster
Archives



sponsored links
- - - - - - - - - - - - -
PassionShop.com
Sex Toys - Adult  DVDs - Sexy  Lingerie


R: PHX, S: 1IN10, D: 12/01/1996, B: Michael Bronski,

Marry Christmas

The Hawaii marriage ruling was the right decision for the wrong reason

by Michael Bronski

With the notable exception of the Supreme Court's favorable ruling on Colorado's anti-gay Amendment 2, every time in past years that queers have attempted to claim our basic civil rights we've been taken to the cleaners. Now, with the decision by Judge Kevin S.C. Chang of Hawaii's First Circuit Court, it looks as though we may be going to the chapel instead.

The arc of the Hawaii marriage case is a simple one. In December of 1990, three same-sex couples applied for marriage licenses; the applications were denied by a clerk in the state health department on the presumption that marriage, legally, could be only a heterosexual union. The couples sought a judicial declaration that such a denial was unconstitutional. The case went all the way to the Hawaii Supreme Court, which in 1993 sent the case back to the circuit court, claiming that the state had to produce "compelling evidence" that same-sex marriage was not in the state's best interest. On December 3 of this year, the circuit court ruled that there was no compelling reason to deny marriage licenses to same-sex couples. The state, of course, has appealed, but it is likely that the Hawaii Supreme Court, having already made its position clear, will affirm the lower court's decision. So although it's not quite time to get out the rice and register at Good Vibrations or the Pleasure Chest, gay matrimony -- at least in Hawaii -- may be just around the corner.

A close examination of the Hawaii case and Judge Chang's decision illuminates several important points. The first of these is that the state of Hawaii couldn't come up with any compelling reason to continue the ban on same-sex marriages. Why? Perhaps because there isn't one. Conservatives insist that marriage must remain solely heterosexual because of "tradition." But that argument rings hollow, given the amount of social and legal change the institution of marriage has undergone in the past 300 years. Arranged and economically based marriages have been replaced by the model of companionate and emotionally compatible marriage. In the US, legal prohibitions against interracial marriages were abolished only 30 years ago. If there is a "tradition" of marriage, it is that the institution has been subject to continual and often radical changes -- almost always to suit personal and social needs -- throughout its history.

The state's ineffectual attempt in the Hawaii case to prove a "compelling interest" to deny same-sex marriage is indicative of how ethically and intellectually impoverished arguments against gay marriage are. The main argument proffered by the state was that " . . . all things being equal, it is best for a child that it be raised in a single home by its parents, or at least by a married male and female. . . ."

The Hawaii Attorney General, representing the state, also advanced several other arguments -- including that gay marriage would be financially harmful to Hawaii -- but provided no evidence to back up those claims. In the end, the state's case hinged on the idea that it was "best" for a child to be brought up by its biological -- and presumably heterosexual -- parents. The state did not take the position that it was even bad or harmful for children to be brought up by gay parents, simply that heterosexual parents were better.

There are two major ironies -- one sweet, one bitter -- in Hawaii's arguing the social and emotional welfare of children as a reason to deny gay people the right to marry. The first is that not only did the plaintiffs' attorneys argue convincingly that lesbians and gay men make fine parents, but the state's witnesses all agreed with them. As one reads through the 46 pages of Judge Chang's decision, which sums up the testimony of both sides, the state's case becomes increasingly ludicrous: not only did the state's witnesses agree that gay people could make good parents -- although heterosexual parents might be better -- but they agreed that gay parents would be helped in their ability to raise children if they were granted the right to marry. Would that all battles for gay rights were this easy.

The second irony in the state's welfare-of-child argument is more problematic. In the end, Judge Chang's decision went in favor of gay marriage because it was proven that the state had no compelling interest in forbidding it on the basis of the child welfare. But what, you might be thinking, do the rights of gay people have to do with the welfare of children? The obvious answer, of course, is: nothing. The original arguments for gay marriage were -- and still are -- that gay men and lesbians should have equal protection under the law and should be allowed equal access to every legal right and privilege accorded to heterosexuals. Period. Gay marriage should be a legal right because gay men and lesbians should have the same full citizenship and integrity of selfhood that heterosexuals have. Children should have nothing to do with it. Of course, once the state made its argument, the gay plaintiffs and their attorneys had no choice but to argue that children would not be hurt by gay marriage. The ultimate effect of the decision, however, even though it's in our favor, is that it justifies a basic gay civil right -- equality under the law -- on the basis of its being good (or rather, not actively bad) for children.

The conflation of child welfare with gay marriage -- indeed, as a reason for allowing gay marriage -- is troublesome not only because it sidesteps the real issue of whether gay people have equal access and a right to self-determination under existing law. A more serious problem is that the child-welfare angle of the decision will be used to domesticate, in both the legal and the popular imagination, the idea of gay marriage. If children are used to justify gay marriage, what about those gay people who want nothing to do with children? What about those gay people who want to get married just to get presents -- or access to a partner's insurance, or social approval? What about those gay people who want to get married without children? The most persistent, and consistently effective, social and religious attack on gay people claims that homosexuality is a sexual immorality that imposes a burden upon society. If we create a legal -- or even social -- category of homosexuals who, because they partake in the legal institution of marriage, are less threatening, might that not merely reinforce prejudice against those gay people who do not marry?

Of course, the Hawaii decision does not say that homosexuals who marry must have children, but it does justify gay marriage by creating a new, safer, and more palatable category of homosexual. In the end, the use of a child-welfare argument to legitimize gay marriage does a disservice not only to the endless variety of gay experience, but to heterosexual experience as well. There will be plenty of gay people who want to marry, yet have no intention of having children. And there are plenty of heterosexuals who feel the same, and plenty of both gay and straight people who have children outside marriage. The bottom line is that the legal right to marry has nothing to do with child welfare; it should be granted to lesbians and gay men because it is their legal and civil right. As the marriage fight continues, we should make sure that we gain our basic civil rights on the correct grounds. Otherwise, in the broader struggle for gay freedom, we may find ourselves jilted at the altar.

Respond to this article.

 









about the phoenix |  advertising info |  Webmaster |  work for us
Copyright © 2005 Phoenix Media/Communications Group