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“The Limits to Union: Same-Sex Marriage and the Politics of Civil Rights” by Jonathan Goldberg-Hiller University of Michigan Press 304 pages, $47 In 1967, the U.S. Supreme Court struck down Virginia’s law against interracial marriage and characterized the right to marry “as one of the vital personal rights essential to the orderly pursuit of happiness by free men.” Gay men and lesbians began testing the boundaries of that premise early in the early 1970s by unsuccessfully applying for marriage licenses, but it quickly became clear that courts deemed marriage not a right but a privilege. In 1993, however, the Hawaii Supreme Court held that the state’s constitution placed the burden on the state to demonstrate why three gay and lesbian couples should not be allowed to marry. Hawaiians pride themselves on tolerance and like to say that their state foreshadows an increasingly diverse United States. With a mix of European, Asian and indigenous people, it is unique among the states in that it has no ethnic majority. Hawaii does not outlaw “sodomy,” its civil rights law prohibits most discrimination on the basis of sexual orientation, and native Hawaiian culture accommodated same-gender relationships. Reaction to the Hawaiian Supreme Court’s decision, though, was anything but laid-back; fear spread that legally married gay men and lesbians would flock to Hawaii and then, by operation of the Full Faith and Credit Clause, return to destabilize legitimate marriages in other states. Hawaiian legislators spoke darkly of a “home page on the Internet where homosexual activists freely discuss this issue across the country.” During this homosexual panic, 33 states prohibited recognition of “gay marriages,” and, in 1996, the U.S. Congress passed, and the allegedly liberal President Bill Clinton signed, the Defense of Marriage Act, which federalized this traditionally state law issue by refusing to accord federal recognition — and the full panoply of marriage-triggered benefits — to marriages not consisting of one man and one woman. Hawaii lost its case on remand in 1996, but despite the popular perception that the state now permits gay marriage, a newly born conservative movement successfully removed the issue from further judicial control. In 1998, 69 percent of Hawaiians approved an amendment to the state constitution allowing the Legislature to limit marriage to “opposite-sex couples.” Once the Legislature passed such a law, the Hawaiian court, recognizing that it had been stripped of its jurisdiction, dismissed the case. Through the democratic process, the majority had placed the contours of a fundamental legal institution beyond the purview of the courts. In this excellent book, “The Limits to Union: Same-Sex Marriage and the Politics of Civil Rights,” University of Hawaii political scientist Jonathan Goldberg-Hiller uses Hawaii’s experience to examine the interaction between courts and the political system, particularly how the traditionally majoritarian concept of “popular sovereignty” interacts with Americans’ commitment to the protection of minority rights. Relying on briefs, legislative statements and interviews with activists from both sides of the question, Goldberg-Hiller views this familiar debate over courts’ countermajoritarian power through the unfamiliar prism of gay marriage, which allows him to gauge the viability and the pliability of the American civil rights ideal and how gay and lesbian issues fit (or don’t fit) within that ideal. From a legal perspective, the book is most interesting when it discusses the political effort to limit the courts’ power to demand speech, to enunciate the assumptions that undergird political power, and, as Goldberg-Hiller puts it, “to demand the defense of privilege.” Given this power, it is not surprising that what seemed to most anger opponents of gay marriage was being called upon to defend the strictly heterosexual nature of marriage in open court. Indeed, the state of Hawaii argued in a brief that marriage was too enmeshed in tradition even to allow for equal rights analysis. Getting the issue out of the courts was crucial to opponents, because gay rights have an arguably better track record in the courts than the political process. The anti-gay rhetoric of “special rights” has been largely rejected by the courts, notably by Justice Anthony Kennedy’s opinion in Romer v. Evans. Practically speaking, however, Justice Antonin Scalia’s dissent in Romer embracing that rhetoric and transforming a minority into an elite has carried the public imagination: The rights of gay men and lesbians have been put to a vote more than any other group, with mostly negative results. The gay marriage issue virtually created the Christian Right in traditionally Democratic Hawaii, but both sides largely avoided issues of sexuality and fought for the political center. Supporters tried without success to employ traditional civil rights arguments. Although opponents trotted out the usual litany of horribles — incest, bigamy and child molestation — when needed, they had the benefit of tradition on their side and were able to treat gay marriage, in Goldberg-Hiller’s words, as a “self-evident horror” without dwelling on the details. Instead, opponents mainly relied on neoliberal arguments such as cost-benefit analysis: Further extension of civil rights protections would deplete already limited resources in recession-prone Hawaii. Ironically, these arguments seemed to have particular appeal among their traditional targets — organized labor and the civil rights movement — which never effectively coalesced with gay and lesbian activists. Moreover, and in striking similarity with the debate over “gays in the military,” many gay and lesbian progressives never fully embraced the goal of gay marriage. Despite the tangible financial benefits that flow from marriage and military service, many lesbians and gay men, with roots in the feminist and progressive political traditions, were deeply ambivalent and sometimes hostile to both institutions. In both cases, they were told that true equality meant equal access to an institution that many believed to be inherently unequal. For many, the public debate transformed this ambivalence not to activism but to annoyance, not only with conservatives, but also with gay marriage activists, who had placed them in a struggle for which they had little appetite. Once Hawaii’s flirtation with homosexuality ended, attention shifted to Vermont, whose supreme court in 1999 ordered the state Legislature to make available to gay men and lesbians either marriage or its administrative equivalent. The result was the enactment in 2000 of the separate-but-sort-of-equal institution of “Civil Union.” While Republican presidential candidate Gary Bauer deemed Vermont’s law to be “in some ways worse than terrorism,” Goldberg-Hiller more aptly describes Civil Union as “the denouement of civil rights,” and not just for gay men and lesbians. William Heinzen is a litigation associate at Bryan Cave Robinson Silverman in New York.

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