Courts and Same-Sex Marriage in the
United States: Hawaii and Alaska
THE DYNAMICS SURROUNDING same-sex marriage litigation are quite different from the litigation concerning sodomy laws. Unlike sodomy law cases, the political reaction to gay marriage cases has been significantly more pronounced. In the 1990s, courts began to find in favor of same-sex marriage claims. Yet, the political reaction to legal rulings favorable to same-sex marriage has provoked a tremendous national political response. Why has this been so different from sodomy law reform? As this book argues, the nature of marriage and its shift from a purely negative notion of liberty to a requirement of government sanction that implicates notions of positive liberty and equality strains the boundaries of U.S. political culture. Same-sex marriage threatens the libertarian truce between heterosexuals and homosexuals that sexual privacy reinforces. Instead of being confined to the bedroom, gay marriage demands a public recognition of gay and lesbian relationships—a recognition that the dominant form of U.S. liberalism has not been willing to accommodate. At the same time, however, same-sex marriage litigation has resulted in substantial change. In the United States, the terms of the debate have shifted on the issue, public support for relationship equality has increased, and significant policy change has occurred. The next several chapters explore these developments.
In the early 1970s, the first attempts were made to litigate the issue of same-sex marriage. These suits were likely the result of two developments of the late 1960s: the Stonewall Riots and the Supreme Court case of Loving v. Virginia. The Stonewall Riots of 1969 marked a clear shift in the gay and lesbian rights movement, from a small movement mostly centered in a few large cities to a more legitimate, national movement. As Arthur Leonard states: “After the 1969 Stonewall Riots, and the increased willingness of lesbians and gay men to be open about their sexual identity, it was natural that some same-sex couples would be emboldened to seek official recognition… from the state.”1 In 1967, Loving struck down Virginia's statute against interracial marriage and applied the equal protection clause of the Fourteenth Amendment to the institution of marriage.2 Following these events, suits were brought in Minnesota, Kentucky, and Washington challenging the prohibitions on same-sex marriage, but they were of little consequence. Since the lesbian and gay rights movement was in its infancy and the legal arguments in