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7 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, thepoliticalreactiontogaymarriagecaseshasbeensignificantlymorepronounced. 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. EARLY SAME-SEX MARRIAGE LITIGATION 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 Courts and Same-Sex Marriage: Hawaii and Alaska 105 favor of same-sex marriage had yet to be fully developed, these cases were largely overlooked and easily dismissed by the courts. Interestingly, these suits were not the result of a concerted litigation strategy— in fact, there was nothing concerted about this process. Despite the increased visibility of the lesbian and gay rights movement, the movement’s leaders did not see same-sex marriage as an important issue. The focus of activists was to stop policeharassmentandbeginthepassageofantidiscriminationlaws.Theyknewthat advocating same-sex marriage was not politically wise. In fact, marriage was seen by leading activists as an institution tainted by its connection with heterosexuality. One can hardly be liberated in marriage, the argument went. But the increasing numbers of openly lesbian and gay couples wishing to have their relationships sanctioned by the state did not necessarily take their cues from the leadership of the movement. The Minnesota Supreme Court decided the first case, Baker v. Nelson, after two men applied for a marriage license and were refused. Jack Baker and Michael McConnell were together for three years by the time they applied for a marriage license. Both were local gay rights activists and wished to use the application for a marriage license to provoke a reaction in the media. It worked; they were profiled in Look magazine in 1971. After the refusal, they retained a local attorney, not concerned that most activists did not want to push the issue of same-sex marriage.3 Theirs was a more traditional perspective than that of the liberationminded activists of the time. They sued for a writ of mandamus, compelling the clerk of the district court to grant them a license, but a trial court quashed this writ and the case was appealed.4 Before the Supreme Court of Minnesota, the male couple first put forth a textual argument: They argued that without an explicit textual prohibition of same-sex marriages, such marriages were valid under Minnesota law. Second, they attacked the constitutionality of the refusal...

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