The year is 1993 and the Hawaii Supreme Court has just declared—as a matter of state constitutional law—that the state prohibition of same-sex marriage constitutes gender discrimination. Within a few years, thirty-five states enacted laws prohibiting the recognition of same-sex marriages and Congress, responding "to a very particular development in the State of Hawaii," enacted the Defense of Marriage Act. In Hawaii, voters overwhelmingly approved a state constitutional amendment authorizing the legislative prohibition of same-sex marriage. For Bill Eskridge, the Hawaii decision was disastrous, "provok[ing] the biggest antigay backlash since the McCarthy era." For Andy Koppelman, however, Hawaii "put the issue of same-sex marriage on the national agenda" and, in so doing, "was a triumph for gays."

Fast forward to 2003 and the Massachusetts Supreme Court's ruling that, under the Massachusetts Constitution, same-sex couples have a right to marry. Throughout the nation, Republicans seized upon this issue, using it to bolster their prospects in the 2004 elections. President Bush called for a constitutional amendment banning same-sex marriage; congressional leaders pushed both for that amendment and for legislation stripping federal courts of jurisdiction in same-sex marriage cases; state officials backed constitutional amendment proposals in thirteen states. And while there is some dispute about whether the same-sex marriage issue was decisive in President Bush's reelection or in Republican victories in Congress, there is little question that the Massachusetts decision did not sit well with a majority of Americans—as revealed both in public opinion polls and in voter approval of all thirteen same-sex marriage ban proposals. In Massachusetts, however, same-sex marriage carried the day—not only did 2004 efforts to derail the court's decision fail, Massachusetts voters rewarded opponents of a proposed constitutional ban on same-sex marriage (reelecting all opponents while ousting some proponents of the ban).

 

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