The Struggle for Same-Sex Marriage Continues
![handle is hein.journals/berkwolj14 and id is 110 raw text is: The Struggle for Same-Sex Marriage
Continues
Elizabeth Kristent
On November 3, 1998, Alaskan and Hawaiian voters passed, by mar-
gins of more than two to one, constitutional amendments limiting mar-
riage to opposite-sex unions.' Although the two initiatives were not
identical, as will be discussed below, both have the effect of foreclosing
the opportunity for lesbians and gay men to have our relationships legally
recognized through marriage in those states. The question this piece will
attempt to answer is whether the same-sex marriage movement is effec-
tively stalled or whether we are on the verge of a tremendous change that
ultimately will provide legal protections for same-sex relationships equal
to those given to opposite-sex couples.
WHY MARRIAGE
One might begin by asking why same-sex couples want to marry and
why we need to call it marriage First, marriage is made up of an exten-
sive bundle of rights, benefits and obligations3 that would provide pow-
CoPYRIGiTr 0 1999, BERKELEY WoMEN's LAW JOURNAL.
t J.D. cand., Boalt Hall School of Law, University of California at Berkeley.
1. See Elaine Herscher, Same-Sex Marriage Suffers Setback, S.F. CHRoN., Nov. 5, 1998, at A2
[hereinafter Herscher, Samd-Sex Marriage].
2. The arguments from within the lesbian and gay community that we should not seek marriage
rights are outside the scope of this piece. See generally SAME-SEx MARRIAGE: PRO AND CON A
READER (Andrew Sullivan ed., 1997); SAME-SEx MARRiAGE: THE MoRAL AND LEGAL DEBATE
(Robert M. Baird & Stuart E. Rosenbaum eds., 1997); Sheila Cronan, Marriage, in RADIcAL
FIuiNisM 213, 219 (Anne Koedt et aW. eds., 1973); Evan Wolfson, Crossing the Threshold: Equal
Marriage Rights for Lesbians and Gay Men and the Intra-Community Critique, 21 N.Y.U. Rnv. L.
& Soc. CHANGE 567 (1994-1995).
3. WILLIAM N. EsKRmGE, JR., THE CASE FOR SAME-SEX MARRiAGE FROM SEXUAL LimRTY TO
CiviLIan Commm mE 70 (1996) (emphasis omitted). These rights include economic and legal
benefits such as:
state income tax advantages ... public assistance ... control, division, acquisition, and
disposition of community property . .. rights relating to dower, curtesy, and inheri-
tance ... rights to notice, protection, benefits and inheritance under the Uniform Pro-
bate Code... award of child custody and support payments in divorce proceedings
... the right to spousal support.... the right to enter into premarital agreements... the
right to change of name... the right to file a nonsupport action... post-divorce rights
relating to support and property division ... the benefit of the spousal privilege and
confidential marital communications ... exemption of real property from attachment
or execution ... (and] the right to bring a wrongful death action.
Baehr v. Lewin, 852 P.2d 44, 59, clarified on grant of reconsideration in part, rev'd sub nom
Baehr v. Miike, 852 P.2d 74 (Haw. 1993). For additional information about marriage benefits,
see generally Richard D. Mohr, The Case for Gay Marriage, in SAME-SEx MARRIAGE: Tim MoRAL
AND LEGAL DEBATE, supra note 2, at 84; EsKuDGr, supra at 68. Marriage also brings with it seri-
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The Struggle for Same-Sex Marriage Continues
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