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Outlaws and Intimates

Anurima Banerji | New York University

The focus on same-sex marriage as a public issue in the United States is a recent phenomenon which reached its apotheosis during the last election year in 2004. The centrality of this issue proves that a major shift has occurred in the queer movement, as the question of acquiring legal rights in the juridical sphere (and acquiring the corollary benefits of full citizenship) has decentered previous concerns dominating the queer agenda, such as local grassroots-level struggle, ACT-UP style activism, and gaining positive representation in political forums, the media, and other institutions linked to the civic sphere. The right to matrimony first became a serious concern in the 1970s here, following the ascent of queer liberation movements and the Stonewall rebellion, and the delisting of homosexuality as a psychiatric disorder. The fact that marriage dominates the national queer agenda today is all the more striking, given that there is no consensus within queer communities about same-sex unions. Discussions of marriage within the communities have been limited to polarized positions that delineate the institution's status as fundamentally conservative or automatically progressive—queer marriage as an agent of conformity or transgression.

With its interdisciplinary approach, and its twin concerns with the performative articulation as well as the embodied action or event, performance studies can offer a more complex analysis and appraisal of the queer marriage debate taking place in the contemporary United States. This is especially possible by invoking the discourses of minoritarian subjects involved in the contest for gay marriage, and by mobilizing the productive concept of "disidentification," delineated by José Muñoz in his book of the same name (Disidentifications: Queers of Color and the Performance of Politics, 1999). The framework of performance allows for queer marriage to be considered in terms of a racialized event, and for the discourses surrounding it to be contextualized as political utterances that actively construct cultural and sexual identities, ultimately producing contesting models of ideal citizenship and subjecthood.

One of the earliest legal battles for queer marriage in the United States was staged by Asian and Pacific Islander American plaintiffs in the state of Hawaii. Advocates in this case (Baehr vs. Lewin, 1993, and Baehr vs. Miike, 1996) presented a range of evidence to support their demand for legal recognition of their relationships, including proof of pre-existing traditions of same-sex wedding rites in native Hawaiian communities—practices which predated U.S. annexation of the island in 1887, but which were outlawed due to the colonial government's subjugation of what they considered non-normative sexualities. In effect, within the limits of this case, the claim made for sexual sovereignty intersected with the claim for cultural sovereignty in Hawaii, complicating the relations between marriage, identity, and citizenship, as conceived in both prevailing queer discourses and mainstream opinion. (The pro-queer marriage briefly won the case, until an amendment to the state constitution precluded the judgment from being implemented). This case serves as both a precedent and anomaly for the current debates on queer marital relations. The arguments subtending the case offer a way of reconceptualizing the terms of contest, offering a way out of the impasse as to whether marriage is "good" or "bad," and recentering the politics of colonialism as a central component of dialogue. In addition, queer marriage in Hawaii has the possibility of being deployed as a mode of decolonization and disidentification from the U.S. state.

Hawaii's inhabitants include multiracial groups subsumed under the nomenclature "Asian Pacific American," including the Kanaka Maoli, an indigenous group that lived on the island prior to U.S. annexation in the late nineteenth century. Kanaka Maoli cosmologies accept opposite and same-sex unions, both monogamous and polygamous, and which recognize a third gender, which cannot be understood within a Western binary that reduces gender identity to the taxonomies of male and female. Groups demanding cultural and sexual sovereignty have asserted that the U.S. state's "attempt to deny same-gender couples the civil rights and responsibilities associated with marriage is contrary to the Hawaiian tradition of recognizing and tolerating same-gender relationships" (Na Mamo O Hwaii, Amicus Curiae Brief, 1997). Viewing same-sex marriage as a cultural ethic and right takes us out of the bind of theorizing it in terms of a progressive or conservative construct. It invites us to reflect on the function that differential marriage and gender systems serve in specific, localized social contexts, without labeling them as negative or positive in advance.

The reference to a pre-existing system and spectrum of marriage acts that included queer matrimony not only affirms contemporary expressions of queer desire in the native Hawaiian context, but also acts a rejection of the mythical association of "the West" with practices of sexual freedom. The sexual genealogies offer a distinct history that is capable simultaneously of offering a specific and localized narrative of sexuality, and of repudiating the universalism inherent in Western discourses which claim to speak for a global queer constituency. And these histories show that embracing a queer ethic or politic is not contingent upon claiming "Stonewall' as the originary site of queer identification and struggle; for many minoritarian subjects, contentions around sexuality can be dated back to the inauguration of colonial regimes, and their subjugating practices.

The historical recognition underscores an alternative analysis of marriage that challenges mainstream, colonial definitions of queer liaisons. Privileging the Kanaka Maoli worldview, as expressed in Baehr vs. Miike, proves that marriage cannot be positioned as inherently positive or negative, normative or radical. Rather, a position supportive of the Kanaka Maoli vision illuminates marriage not as a natural, transhistorical, universally heterosexualized institution, but as a culturally and temporally bound performance (or, more precisely, a set of performances) that normalize(s) fluid sexual identities and relations. In this paradigm, there is no single, dominant, normative marriage ideal; instead, there is a wide and flexible range of gender identities and possibilities for union among consenting parties. This argument should not be interpreted as an idealization of some golden sexual past, but can be strategically recognized as a complication of the claim that queerness is an exclusively modern, Western phenomenon that is owned by contemporary white agents.

Further, establishing an indigenous queer genealogy is significant because it recasts the very notions of "tradition" and "modernity." Classically, these categories are organized dichotomously and hierarchically, with antagonistic conceptual affiliates: "tradition" is generally viewed as a transhistorical container of meaning, tied to notions of cultural continuity, unchanging essence, the eternity of customs which, in extreme form, are read as retrograde and repressive; "modernity" is the ideational repository of the contrasting concepts of progress, innovation, liberation. In colonial economies of culture, the negative association of tradition is imputed almost exclusively to racialized bodies, and used as justification for the interventions of imperial power.

However, the work performed by contemporary queer Hawaiian activists forces a reconsideration of these absolute categories, demanding an exchange between each signifier and the set of ideals it purports to represent. For in the domain of Hawaiian sexuality, modernity—as represented by the colonial U.S. government—fails to usher in greater freedoms, instead imposing limits and constraints on sexual expression through the instrument of law. Tradition here appears as the truly transformative force, presenting queer desire as a disruptive power in the constitution of the ideal subject imagined at the center of the American nation. The queer past is reinterpreted and resituated within the present political moment, acting doubly as critique and counter-memory. In this sense, the aura of tradition is not only progressive, but transgressive, in redefining the sexual order of things.

Finally, the framing of matrimony proposed in Baehr vs. Miike allows an interrogation of marriage as a mode of assimilation into the nation, and articulates marriage as a productive mode of delinking from the imperial state. Several of the arguments in favor of queer marriage enunciate a position of disidentification with the U.S. governing apparatus and its discursive stance. They demonstrate how marriage is not immediately oppressive per se, but can serve a purpose in dislodging cultural imperialism. By reclaiming and reanimating precolonial conceptions of marriage, indigenous sovereignty groups are able to keep alive a cultural view oppositional to the colonizer's. Here, queer marriage does not validate an assimilative or conformist gesture, but is framed in terms of an explicitly anti-colonial and counter-hegemonic ethic.

It is perhaps for these complex reasons that the Hawaii case cannot be fully or easily reconciled within the mainstream queer and/or racialized communities that prize marriage as an index of belonging and citizenship, within the bounds of the imperialist U.S. nation-state. In the end, it is especially because of the special convergence of race, cultural rights, and queer sexuality that the Hawaii case holds great import. It cannot be fully appropriated by a pure queer rights agenda that elides the effects of colonialism in its analysis, nor can it be situated comfortably as evidence of a pristine Asian Pacific American past that is morally attached to heterosexual institutions. It illumines the politics of difference within the construct of "Asian Pacific America," the politics of racialization in the category "queer," and the politics of decolonization and disidentification that take place through the performance of "marriage."

Anurima Banerji is a Ph.D. student in the Department of Performance Studies at NYU. This essay is a revised version of a talk delivered at PSi in April 2005. Anurima's previous articles have been published in the journals EPW, Manushi, and Montreal Serai. Her performance texts and creative writing have appeared in the anthologies Brazen Femme, Red Light, and Bent on Writing. She is also the author of the poetry collection, Night Artillery.


American Friends Service Committee. "AFSC Hawaii Gay Liberation Program: Activist Materials Addressing Tourism," GLQ: A Journal of Gay and Lesbian Studies, 8, 1-2 (2002): 207-225.Balisdell, Kekuni. "Kanaka Maoli Self-Determination and Reinscription of KaPae'Aina (Hawaii) on the U.N. List of Non-Self-Governing Territories," In Motion Magazine (November 22, 1998). URL:

Duggan, Lisa. "Holy Matrimony!" The Nation (March 15, 2004). URL:

Hawaii First Circuit Court. Baehr vs. Miike [now called Baehr vs. Anderson].Decision by Judge Kevic S.C. Chang. December 3, 1996. Text of ruling:

Hawaii Supreme Court. Baehr vs. Lewin [now called Baehr vs. Anderson]. Decision by Justices Levin, Moon, Burns, and Hayashi, with Heen dissenting. May 5, 1993. Text of ruling:

Honolulu Star-Bulletin. Special online resources on same-sex marriage in Hawaii. December 1996.URL:

Na Mamo O Hawaii. "Na Mamo O Hawai'i's Amicus Brief," in support of plaintiffsin Baehr vs. Miike, filed by Paul Aslton and Lea O. Hong, attorneys for Amicus Curiae Na Mamo O Hawai'i, inHonolulu, Hawai'i, May 13, 1997.