Academic journal article
By Rollins, Joe
Law & Society Review , Vol. 39, No. 2
Same-Sex Unions and the Spectacles of Recognition
Evan Gerstmann, Same-Sex Marriage and the Constitution. Cambridge: Cambridge University Press, 2004. xii + 222 pp. $60.00 cloth; $21.99 paper.
Jonathan Goldberg-Hiller, The Limits to Union: Same-Sex Marriage and the Politics of Civil Rights. Ann Arbor: University of Michigan Press, 2002. x+290 pp. $60.00 cloth.
Yuval Merin, Equality for Same-Sex Couples: The Legal Recognition of Gay Partnerships in Europe and the United States. Chicago: University of Chicago Press, 2002. xvi+397 pp. $66.00 cloth; $25.00 paper.
The boundary between homo- and heterosexuality once stood solidly in our cultural imagination, marked off by a set of assumed differences that were purportedly made manifest in real, material ways. Gays and lesbians, so the story went, were verifiably different from straight people, but gradually, the perceived boundary between the two sexualities has eroded. It has been 30 years since the American Psychological Association cured us of our homosexuality with the stroke of a pen. Despite the enthusiastic application of scientific and statistical technologies, the efforts of researchers such as Dean Hamer, Peter Copeland, and Simon LeVay (just to name a few), have failed to show conclusively that our ears, fingers, brains, or genes actually reveal anything concrete about our choices of sexual partners. Lawrence v. Texas (2003) has knocked down Bowers v. Hardwick (1986) as well as the remaining sodomy laws, expanded the right of privacy to include same-sex sex, and in the wake of Goodridge v. Dept. of Public Health (2003) Massachusetts has begun allowing same-sex couples to marry. In contrast to many European nations, gay and lesbian parents in the United States are winning legal victories with increasing frequency, gaining greater access to adoption and child custody despite jurisdictional variation. For that diminishing segment of the population that still desperately wants a clear marker of its sexual superiority the news is not good. Fortunately for them, heterosexuals still have one clearly identifiable social sanctuary where they can remind themselves that they have something that non-heterosexuals do not: marriage. With a minimum of effort and expense, one man and one woman can enter into a relationship with the state that brings about numerous legal benefits, obligations, and privileges. Despite some advances, marriage thus stands as one of the last clearly exclusive, forcefully bounded, brightly illuminated enclaves where gays and lesbians may not tread; it remains for heterosexuals only (or at least, for those who want to appear that way).
The books reviewed in this essay all engage the same-sex marriage debate, but each approaches the subject from a slightly different point of entry. Jonathan Goldberg-Hiller's The Limits to Union maps the political aftermath of the 1993 Hawaiian Supreme Court case that nearly allowed same-sex unions in that state. His analysis emphasizes the discourses of civil rights and sovereignty, and he artfully demonstrates that civil rights advances by gays and lesbians are seen as a threat to sovereignty. Specifically, he shows how the possibility of same-sex marriage was successfully depicted as a portent of economic damage, a threat to Hawaiian ethnic identity, and contrary to the goals of labor unions and other organized groups. In Same-Sex Marriage and the Constitution, Evan Gerstmann mines the Supreme Court's jurisprudence in order to develop a constitutional framework that would require same-sex marriage. He relies primarily on the Fourteenth Amendment-although the First and Ninth Amendments also figure prominently-to argue that marriage, including same-sex marriage, is a fundamental liberty interest. Yuval Merin's Equality for Same-Sex Couples focuses on statutory protections offered to same-sex couples and surveys the different legal forms offered in jurisdictions across the United States and Europe. …