Marriage, Law and Gender : A Feminist Inquiry

Abstract

A series of constitutional challenges to the exclusion of gay male and lesbian couples from the matrix of rights and responsibilities which comprise marriage were brought and failed twenty years ago. The most dramatic development to date in the campaign to establish a right to gay marriage occurred in May 1993, when the Hawaii Supreme Court ruled that, under the state constitution, marriage could not be limited to opposite-sex couples unless the state could demonstrate a compelling interest in doing so. A number of municipalities have adopted domestic partnership laws granting recognition for limited purposes to unmarried couples who met certain functional criteria roughly comparable to marriage. In reality, however, the definition of marriage is grounded on the social category of gender. Same-sex marriage could create the model in law for an egalitarian kind of interpersonal relation, outside the gendered terms of power, for many marriages.

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