ISSN 1062-7421
Vol. 12 No. 4 (April 2002) pp. 176-177.
THE LIMITS TO UNION: SAME-SEX MARRIAGE AND THE POLITICS OF CIVIL RIGHTS by Jonathan Goldberg-Hiller. Ann Arbor:
The University of Michigan Press, 2002. 304 pp. Cloth $47.50. ISBN: 0-472-11223-6.
Reviewed by Evan Gerstmann, Department of Political Science, Loyola Marymount University.
This book, which is part of Michigan's Law, Meaning and Violence series, asks, "why has same-sex marriage
in Hawaii antagonized so many so quickly?" (p. 6). This is an important question. When the Supreme Court of
Hawaii, in BAEHR v. MIIKE, went to the brink of declaring that the state constitution protected the right of same-sex
couples to marry, advocates of gay and lesbian rights had high hopes. One of same-sex marriage's most visible advocates,
Andrew Sullivan, touted Hawaiian voters as just the sort of tolerant people who would reject the push to pass an
amendment to the state constitution that would effectively overrule the decision. However, things turned out quite
differently. Hawaiian voters overwhelmingly approved the amendment and supporters of same-sex marriage have been
largely on the defensive ever since. Congress also reacted against the decision, passing the Defense of Marriage
Act, and many states passed their own versions of
that legislation. Thirty-five years after the Supreme Court ended the ban on interracial marriage, why does opposition
to same-sex marriage remain so strong?
Goldberg-Hiller sees two interlocking movements at work. "The first is a reaction against the fast-growing
visibility of gays and lesbians and the forms of knowledge and political presentation that of the self under which
the demand for civil rights has been made" (p. 7). He also says, "I explore a second, related reason
for the vitality of this politics. The rhetorical tactics used to retain the privilege of marriage for non-gays
have combined formerly diverse, contradictory, and sometimes dormant American discourses into mutual coherence,
amplifying their effects" (p. 7).
Goldberg-Hiller's key insight is that the assertion of legal rights along with globalization-fueled anxiety of
loss of sovereignty has led to a "pluralistic intolerance," i.e. resistance to all challenges to majority
prerogatives (p. 18). Although much attention has lately been focused on the pressure globalization has placed
on the Muslim world, Americans also feel anxiety associated with the realization that we are no longer (if we ever
were) the sole masters of our own destiny. Foreign ideas, influences and powers affect America constantly. Meanwhile,
civil rights claims, made by minorities against sovereign majorities, further erode mainstream Americans' sense
of control.
Unfortunately, the author's arguments may not be accessible to the undergraduate and lay audience that would most
benefit from them, because of the often overly dense writing style. There are too many sentences such as, "While
the dialectical approach accounts for the ontological security that status relationships can provide in a changing
world, its
Page 177 begins here
functionalism tends to overlook the significance of the discursive character of the legal form that today obscures
the mapping of social need to legal instrument" (p. 84). This is especially unfortunate because the study
of gay and lesbian rights is already somewhat ghettoized even from mainstream political science and legal studies,
and such dense writing may keep this book from reaching a broader audience.
Accessibility issues notwithstanding, this book is an important contribution to our understanding of the social
forces that oppose not just same-sex marriage, but civil rights more generally. Goldberg-Hiller situates the debate
over gay and lesbian marriage in the larger context of American ambivalence regarding law and rights in general.
Dominant groups tend to take their domination for granted. When minorities use law as an instrument to challenge
majority prerogatives, this can undermine not only majority tolerance of those particular minorities, but can also
undermine majority support of the institution of law itself. "The law is easily situated as the
source of sovereign anxiety due to its demands for argument" (p. 55). The heterosexual majority has had a
very difficult time explaining its opposition to same-sex marriage in the rational terms demanded by the law and
has generally resorted to tautologies or to arguments about fertility as a precondition for marriage that it is
quite unwilling to apply to infertile heterosexual couples.
Faced with legal demands by gays and lesbians, the heterosexual majority has come to see itself as an embattled
group in need of protection. The rhetoric of rights is easily reversed and the legal rights claims of gays and
lesbians are met by the majority's defense of its own right to sovereignty.
Goldberg-Hiller rightly points out that Americans are also quite ambivalent about the respective places of contract
and status in our society. As has been oft noted, the story of Western legal history is to a great extent the story
of contract replacing status. The status of nobility, class, and gender no longer determine our legal rights. The
law of marriage has reflected this change. Men and women no longer have different rights and marriage is now seen
as a contractual relationship that can be entered into or broken according to the consent of the parties, who can
also alter their rights contractually. However, when it comes to same-sex marriage, there is a sudden shift away
from the purely contractual view of marriage and status once again assumes central stage. Heterosexuals retain
nearly complete contractual freedom for themselves in their marriages, but when it comes to gays and lesbians,
the rhetoric of marriage as a sacred covenant--as a status rather than mere contract--once again assumes center
stage.
THE LIMITS TO UNION is a valuable contribution to the field, situating the gay marriage debate in broader contexts
of theory, law and practice. Although same-sex, marriage is an important issue in and of itself, it is an issue
that finds itself caught in the friction points of much larger debates over the nature of rights, the limits of
sovereignty and the proper role of courts and law in a democratic society. It should therefore be of interest even
to those who do not think of themselves as interested in gay and lesbian rights issues.
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Copyright 2002 by the author, Evan Gerstmann.