A. What is the Analogy?

What exactly is the Loving analogy? The answer is more complex than it might appear. It can be formulated in different ways, ranging along a spectrum from somewhat friendly to outright hostile. The difference in the formulations becomes more evident if the analogy is presented sequentially. Here is a relatively mild-sounding version:

As Loving is about broadening marriage to include interracial couples, so Baehr is about broadening marriage to include same-sex couples.

It can also be stated in the following manner:

As thirty years ago, people defined marriage as something between people of the same race, but this was redefined, so today people define marriage as a relationship between people of the same sexual orientation, and this should be redefined.

Then again, the alleged analogy can be restated in another, slightly more pointed way:

As race was irrelevant to marriage then, so sex is irrelevant to marriage now.

Finally, here is a statement of the analogy which exemplifies the hostile end of the spectrum:

*205 As Virginia's law was enacted by racist citizens and elected officials, embodied the ideology of white supremacy, and was validly overturned by the courts, so Hawaii's law was enacted by heterosexist citizens and elected officials, and embodies the ideology of heterosexual supremacy, and should be overturned by the courts.

Needless to say, this formulation is clearly not designed to persuade one's opponents. It is a subtle way of telling people that they are no different than a bunch of Jim Crow racists, and ought to be ashamed of themselves -- so ashamed that they should get out of the way and leave the definition of marriage to the courts.

Now, let us see how these ways of formulating the argument have appeared in Hawaii.

B. The Role of the Analogy in the Baehr Litigation [FN9]

Until the time of the 1993 plurality opinion of the Hawaii Supreme Court, it was the State that made a point of discussing Loving, to affirm the due process right to marry rather than to address questions of equal protection. [FN10] Up to this time, the plaintiffs paid little attention to Loving. [FN11] During the pleadings below, the local ACLU filed an amicus brief that equated *206 racism and criticism of homosexuality. [FN12] But Judge Klein did not cite Loving in his opinion and order. [FN13]

As far as I can tell, the Loving analogy was first explicitly introduced into the case in the amicus brief submitted in 1992 to the Hawaii Supreme Court by the Lambda Legal Defense and Education Fund. It was co-authored by Kirk Cashmere, Lambda's local counsel in Honolulu, and Evan Wolfson, [FN14] a senior staff attorney at Lambda's headquarters in New York City. This brief argued that Virginia's law was based on a "long social history of defining marriage as intrinsically intraracial," and went on to claim that "the 'opposite sex' requirement burdening gay people's right to choose our life partners, like the analogous racial restriction in Loving, is unconstitutional." [FN15]

The most dramatic example of the use of the Loving analogy came in Baehr v. Lewin, the landmark decision issued by a plurality of the Hawaii Supreme Court on May 5, 1993. [FN16] In contrast to the use of Loving in the pleadings below, the plurality opinion in Baehr ignored Loving in its due process analysis. Indeed, the plurality agreed with the dissent (and implicitly with the concurrence) that there was no fundamental right to same- sex marriage at all under the due process or right to privacy provisions of the Hawaii State Constitution. [FN17]

*207 Instead, taking a page from Lambda's play book, the plurality adopted the Loving analogy as part of its equal protection analysis. In their narrative of Loving, Justices Levinson and Moon set the U.S. Supreme Court against the Virginia courts. On one side was Loving v. Virginia, based on the Fourteenth Amendment's antipathy to "individious discrimination" based on "racial classifications," regardless of what form they took. [FN18] On the other side were the Virginia Courts, exemplified by Loving v. Commonwealth, [FN19] committed to the unholy trio of (1) appeals to Divine Will, (2) appeals to "custom," and (3) the use of a formalistic theory of "equal application." [FN20]

The Attorney General of Hawaii, however, had made no appeals to Divine Will, so the court's heavy emphasis on the Virginia trial court's diatribe was apparently gratuitous. Perhaps the plurality meant to attack the very idea that anything could be intrinsically natural or unnatural. If so, it could then have applied that approach to its views about "couples" and "civil liberties." Indeed, it could have deconstructed the very idea of the individual. But it stopped with marriage. So far as Justice Levinson and Chief Justice Moon were concerned, the State's appeals to custom and equal application were as faulty as those made thirty years earlier by the State of Virginia in the defense of racism. Just as the Lovings were discriminated against based upon their race, the Baehr plurality contended, the three plaintiff couples were being discriminated against based on their sex. [FN21] In two now-classic quotes, the Baehr plurality put the issue in the following terms.

With all due respect to the Virginia courts of a bygone era, we do not believe that trial judges are the ultimate authorities on the subject of Divine Will, and, as Loving amply demonstrates, constitutional law may mandate, like it or not, that customs change with an evolving social order. [FN22]

Therefore, in the words of the second quote, "substitution of 'sex' for 'race' in Article I, Section 5 of the Fourteenth Amendment yields the precise case before us together with the conclusion that we have reached." [FN23]

*208 In his dissent, Judge Heen was not impressed by this analogy. "Loving," he replied, "is simply not authority for the plurality's proposition that the civil right to marriage must be accorded to same sex couples." [FN24] Echoing arguments that had been made before, and have been made since, Heen argued that Loving was a case about race, not analogous to a case about same-sex couples. Because the Hawaii marriage law is equally open to both sexes, it is therefore not parallel to the so-called "equal application" theory advanced by Virginia. The rationales were not parallel, he insisted, because while the Virginia law was based on invidious racial discrimination, the Hawaii law is not based upon invidious sex discrimination. [FN25] Instead, the Hawaii law was based on the nature of the institution of marriage. Judge Heen did not invoke Divine Will; nor did he invoke custom, in the sense of mere convention. Instead, he made a definitional argument, drawing upon Singer v. Hara, a key decision from the State of Washington, which had addressed the question of sex-based classifications:

[A]ppellants are not being denied entry into the marriage relationship because of their sex; rather, they are being denied entry into the marriage relationship because of the recognized definition of that relationship as one which may be entered into only by two persons who are members of the opposite sex. [FN26]

Heen insisted that this was not a circular argument, but simply a true description of marriage. The plurality, not surprisingly, rejected this "exercise in tortured and conclusory sophistry." [FN27] In response to Heen's arguments, they simply quoted back from the text of the Loving decision. Here we see how the Loving analogy becomes less of a legal argument, and more of a powerful political weapon. The plurality was directly comparing Judge Heen to the Virginia judges. [FN28]

In its Motion for Reconsideration, filed shortly after the initial decision in Baehr v. Lewin, the State attacked the plurality's use of Loving. First, it drew the following contrast between Virginia's and Hawaii's laws: In Virginia, interracial couples were also forbidden to cohabit. In Hawaii, on the other hand, same-sex couples are free to cohabit, make private contractual promises, and receive recognition from established formal or informal social institutions. [FN29]

*209 Second, the State argued that the "basic civil right" to marry identified in Loving--the right, in Loving's words, pertaining to our "existence and survival" -- was based on a heterosexual definition of marriage. [FN30] "Only those who are blind to reality," the Attorney General argued, "could read the precedents which define the 'freedom to marry' and to find that 'marriage' to a person of one's own sex is 'fundamental to our very existence and survival."' [FN31] The view that marriage is "a mere state- endorsed partnership [is] nothing but 'tortured and conclusory sophistry," [FN32] throwing the plurality's words back at them. The plurality responded by reaffirming their decision and remanding it to the lower court for a trial. [FN33]

The case, renamed Baehr v. Miike, finally came to trial in 1996. Dan Foley, the plaintiffs' lead counsel, invoked Loving eloquently in his opening and closing statements. [FN34] Loving was not an issue in the trial, however, and was only briefly discussed in the post-trial documents submitted by the parties. [FN35] While it was invoked in a number of the trial-level amicus briefs submitted by organizations on both sides, [FN36] Judge Chang's trial court opinion *210 of December 3, 1996 ignored it. [FN37] The debate about Loving has continued in the briefs filed in the pending appeal before the Hawaii Supreme Court. The State argues that Loving "proceeded from the premise, not present in this case, that the classification at issue employed a suspect criterion." It also claims that while the law at issue in Loving clearly discriminated in favor of whites and against blacks, in contrast, "Hawaii's marriage law has neither the purpose nor the effect of discriminating against either women or men. To the contrary, its purpose and effect are to treat men and women as co-equal partners, each a necessary part of the union." [FN38] The plaintiffs defend the Hawaii Supreme Court's original use of Loving, while using it to take aim at the State: "Apparently, the Director would have this court embrace the logic of the Virginia Supreme Court." "This court," they add, "should decline the Director's invitation to turn back the clock." [FN39] This is nothing but "playing the Loving card." The plaintiffs call the Hawaii Supreme Court to a supposedly nobler mission, explicitly recalling the earlier struggles against anti- miscegenation laws: "One state had to show leadership, and the court was properly asked to provide it through a direct and timely challenge to existing discrimination. The court did not flinch. History has upheld it." [FN40] Similar attacks were made by amici on the Attorneys General of other states filing in support of the State of Hawaii. [FN41]

*211 C. The Political Debate about the Analogy

Between the court's bombshell opinion in 1993 and the case's second arrival to the court in mid-1997, the use of the Loving analogy shifted to other venues in Hawaii. Between 1993 and 1997, the message of supposed equivalence between interracial and same-sex marriage was preached relentlessly in newspaper editorials, columns by activists, and legislative speeches.

Both major Hawaii newspapers have openly supported same-sex marriage from the beginning. Within a week after the Baehr decision, the HONOLULU ADVERTISER had this to say about the issue:

By granting license [sic] to marry to gays and lesbians, will Hawaii go beyond tolerance to officially sanctioning (and indeed rewarding) a relationship outside the norm of the standards of the majority of the community? The answer, today, is yes. Yet society's standards are constantly evolving. There was a time not long ago when most states had laws against marriage between persons of different races. [FN42]

Several weeks later, after the supreme court rejected the State's Motion for Reconsideration, the HONOLULU STAR-BULLETIN was even more blunt. "The battle for acceptance and equal rights for gays isn't over by a long shot," it announced. "Many Americans still consider homosexuality to be immoral and a form of mental illness." The paper was not subtle in how it characterized these Americans: "Fear and ignorance have long been the enemies of sound public policy. Ethnic cleansers, Ku Klux Klansmen, fascists and witch burners have used them to deny people life, liberty and happiness throughout history." [FN43]

The drumbeat continued throughout the 1994 legislative session, inside and outside of the state capitol. In April, when the legislature passed a bill in response to the Baehr decision, legislators supportive of same-sex unions began "playing the Loving card." "I've heard the argument that there is no discrimination because members of both genders are equally forbidden from marrying anyone of the same gender," said Senator Matt Matsunaga on the floor of the Senate. "But similar arguments failed to save the laws against inter- racial marriage in which everyone was equally forbidden to marry anyone of a different race. Parallel discriminations are *212 still, nonetheless, discriminations." [FN44] In response, Senator Stan Koki shot back: "This is not an issue about civil rights. Blacks and minorities have suffered economic hardship. They've been treated as second class -- in the back of the bus, separate bathrooms. None of this applies here in this case." [FN45] The final text of the bill included a lengthy discussion of Loving in its opening section, and explicitly rejected the Loving analogy. This provoked one Representative to compare the bill to discriminatory Jim Crow laws. [FN46]

This pattern of attack was also displayed to great effect in the 1995 Report of the Commission on Sexual Orientation and the Law. [FN47] The Chairman of the Commission, Thomas P. Gill, was a member of the Board of Directors of the local ACLU, and a strong supporter of same-sex marriage. [FN48] The Majority Report spent a full four pages discussing Loving, offering analogies to the same-sex marriage debate. The opponents of same-sex marriage, they charged, were making the same kinds of arguments that had been made thirty years earlier: appeals to religion, morality and public health; unwillingness to recognize existing relationships; unwarranted fears of economic disruption; concerns about children; and appeals to public opinion. "The Commission favors the belief of John F. Kennedy: 'If we cannot end our differences, at least we can help make the world safe for diversity."' [FN49] The minority opinion, however, challenged the Majority's caricature of their position, and challenged the Loving analogy as well. [FN50] *213 The majority responded in a condescending tone to the minority: "The Minority apparently thinks our Supreme Court was misguided when it cited Loving. The majority agrees with the Supreme Court." [FN51]

In particular, "the Loving card" was played during the 1996 and 1997 legislative sessions, in an effort to stop a proposed amendment in the Hawaii Constitution. During this period, the Loving analogy was invoked in at least seven editorials in the HONOLULU ADVERTISER and HONOLULU STAR-BULLETIN. [FN52] In one case, when the ADVERTISER published a dissenting view by the late Rex E. Lee, former Solicitor General of the United States, it felt compelled to attack him directly in the same section. "Consider what the results would have been if a constitutional ban on interracial marriages had been proposed in the deep South before the civil rights era," it hissed. "Of course it would have passed. And of course it would have been wrong." [FN53] With that, the former Solicitor General's well-reasoned beliefs were slandered with the brush of bigotry.

When the proposed constitutional amendment came to the Hawaii House floor for third reading in early 1997, Representative Ed Case made an impassioned speech against it. In words that some might call eloquent, and others might call inflammatory, he made the following set of analogies:

So, to the black children of Arkansas in the early 1950s, whom the majority didn't want to attend white schools, this no vote is for you. To the Japanese-American internees of World War II, who should have been protected by our Constitution from majority *214 America, but at least had a Constitution from which to seek protection, this no vote is for you. To all of the interracial couples of the past, present and future, whom the majority didn't want to marry, this no vote is for you .... To those who fear the rise of the thought police and the drive to homogenize a country and state whose greatest strengths are their diversity, this no vote is for you. To all of the minorities of the past, and to those minorities of the future whose circumstances we cannot even imagine today, this no vote is for you. This no vote is for us all. [FN54]

In the face of such strident attacks, the Reverend Marc Alexander, Executive Director of the Hawaii Catholic Conference offered the following response on behalf of his fellow citizens:

Our Aloha State has been in turmoil since the Hawaii State Supreme Court decision in Baehr v. Miike in May of 1993 which forced the issue of 'same- sex marriage' into the public forum. The public discourse which has transpired has helped the people of Hawaii realize how important the institution of marriage really is. In 1991 some 49% of the people of Hawaii opposed 'same-sex marriage.' As of last year, that figure had increased to almost 75% of the people of Hawaii, a people known for their 'aloha' and tolerance. In fact, just last week some 7,000 people rallied in a very dignified and respectful way in favor of traditional marriage. The people who gathered came from across our state. We were ordinary people, normally silent, young and old, married and single, from every ethnic group in Hawaii, religious and non-religious. Looking at the masses I couldn't help but think that this group had nothing in common except that Hawaii is our home and we are convinced that marriage should not be redefined. The 75% of the people who want marriage to be marriage can hardly be compared to Southern white racists of the 50's and 60's or to religious bigots. No, we just want what is best for our community and our children. And we want our right and power to determine public policy returned to us. We approved our State Constitution and we have the right to change it. [FN55]

*215 Nevertheless, the rhetorical onslaught continued. Senator Avery Chumbley, co-chair of the Hawaii Senate Judiciary Committee, expressed sentiments similar to those of Representative Case when the final text of the Amendment came to the Senate floor several months later:

Apart from the constitution itself, I believe that America's commitment to fairness and quality is best captured in the words of Dr. Martin Luther King, 'I have a dream,' he said, 'that some day my children will be judged not by the color of their skin but rather by the content of their character.' And as legislators, it is a daily challenge that we make real this dream and to ensure that distinctions imposed by the law are based on genuine and substantial governmental interests and not based on fear, ignorance, or prejudice. [FN56]

Senator Chumbley gave some indication of what he meant by "fear, ignorance, or prejudice" by stating:

Most of the opposition to same-sex marriage and reciprocal benefits came from persons who stated that they were so motivated by strong religious beliefs. I understand that religious beliefs compel some people to oppose same-sex marriage because these relationships involve what some consider aberrant and deviant sexual behavior. I struggled in talking with these persons who were sometimes ill-informed and, unfortunately, responding from fear rather than from a place of tolerance and understanding.... In the end, I am willing to acknowledge that political pressure was brought and bought by persons both within and outside of Hawaii, which allowed for the 'majority' to be able to overrule the minority. [FN57]

It is little wonder, then, that in the Hawaii House Chamber, on that same day, Representative Gene Ward made a speech in support of the Marriage Amendment that reflected his clear understanding of the dynamics of the situation, and the politics of the Loving analogy: "Using Judge Levinson's logic in the Loving case and the compelling State interest by which it was framed, Mr. Speaker, it's tantamount to me asking you do you still beat your wife." [FN58]

In short, while the positive formulation of the Loving analogy has appeared from time to time, when the pressure is on, it is the accusation of "no better than Jim Crow" that gets thrown into the debate. When the debate grows fierce, the argument takes on a razor's edge. Consider, for instance, *216 the meaning of radio and TV ads aired in 1997 with the following set of images:

(1) Japanese-Americans being forced into internment camps,

(2) dramatic footage from marches during the civil rights movement, and then

(3) a message: "Threatens the rights of all." [FN59]

The clear message is that preserving marriage under existing law is no different than imprisoning or attacking ethnic minorities. This is not a legal argument but simply "playing the Loving card."

Ironically, this message has been broadcast to the same citizens who live, day by day, at work, in neighborhoods, in religious communities, and in the public square alongside neighbors who call themselves "gay" and "lesbian." Most of these citizens of Hawaii are able both to support the existing marriage law and still respect their neighbors. Despite this negative media campaign--or perhaps because of it--seventy percent of citizens of Hawaii continue to oppose the legalization of "same-sex marriage," especially if it is forced upon them by the judiciary. [FN60] At this point, when the rubber of progressive legal theory hits the road of public argument, much of what has been grandly theorized about in the academy comes to a screeching halt. Even with the ACLU out spending their opponents two to-one, the proposed constitutional amendment passed the legislature, and will go before the voters of Hawaii on November 3, 1998. [FN61] The citizens of Hawaii can count on seeing more propaganda during the coming year. [FN62]

*217 D. The Power and Purchase of the Analogy

What, then, can be said in summary about the power and purchase of the Loving analogy, as it appears on the ground in Hawaii where the marriage debate has gone the furthest? It would appear that the Loving analogy is not so much an argument about heterosexism, since that is a complex argument more suited to legal conferences than to radio and television propaganda. Instead, it has been used as a blunt instrument to achieve certain goals, among them (1) claiming the moral high ground of civil rights, and (2) intimidating and shaming one's opposition and the general public. This has been done not by offering legal arguments, but by projecting emotional images and associations. The goal of playing "the Loving card" is to soften up the public, so it will not mobilize. After all, the plaintiffs, their attorneys, and the organizations advancing their campaign win if the public does nothing. The advocates are not trying to convince the public of anything, except to stay home. By definition, they are trying to circumvent the democratic process and achieve their results through the anti-majoritarian courts.

A. What is the Analogy?

What exactly is the Loving analogy? The answer is more complex than it might appear. It can be formulated in different ways, ranging along a spectrum from somewhat friendly to outright hostile. The difference in the formulations becomes more evident if the analogy is presented sequentially. Here is a relatively mild-sounding version:

As Loving is about broadening marriage to include interracial couples, so Baehr is about broadening marriage to include same-sex couples.

It can also be stated in the following manner:

As thirty years ago, people defined marriage as something between people of the same race, but this was redefined, so today people define marriage as a relationship between people of the same sexual orientation, and this should be redefined.

Then again, the alleged analogy can be restated in another, slightly more pointed way:

As race was irrelevant to marriage then, so sex is irrelevant to marriage now.

Finally, here is a statement of the analogy which exemplifies the hostile end of the spectrum:

*205 As Virginia's law was enacted by racist citizens and elected officials, embodied the ideology of white supremacy, and was validly overturned by the courts, so Hawaii's law was enacted by heterosexist citizens and elected officials, and embodies the ideology of heterosexual supremacy, and should be overturned by the courts.

Needless to say, this formulation is clearly not designed to persuade one's opponents. It is a subtle way of telling people that they are no different than a bunch of Jim Crow racists, and ought to be ashamed of themselves -- so ashamed that they should get out of the way and leave the definition of marriage to the courts.

Now, let us see how these ways of formulating the argument have appeared in Hawaii.

B. The Role of the Analogy in the Baehr Litigation [FN9]

Until the time of the 1993 plurality opinion of the Hawaii Supreme Court, it was the State that made a point of discussing Loving, to affirm the due process right to marry rather than to address questions of equal protection. [FN10] Up to this time, the plaintiffs paid little attention to Loving. [FN11] During the pleadings below, the local ACLU filed an amicus brief that equated *206 racism and criticism of homosexuality. [FN12] But Judge Klein did not cite Loving in his opinion and order. [FN13]

As far as I can tell, the Loving analogy was first explicitly introduced into the case in the amicus brief submitted in 1992 to the Hawaii Supreme Court by the Lambda Legal Defense and Education Fund. It was co-authored by Kirk Cashmere, Lambda's local counsel in Honolulu, and Evan Wolfson, [FN14] a senior staff attorney at Lambda's headquarters in New York City. This brief argued that Virginia's law was based on a "long social history of defining marriage as intrinsically intraracial," and went on to claim that "the 'opposite sex' requirement burdening gay people's right to choose our life partners, like the analogous racial restriction in Loving, is unconstitutional." [FN15]

The most dramatic example of the use of the Loving analogy came in Baehr v. Lewin, the landmark decision issued by a plurality of the Hawaii Supreme Court on May 5, 1993. [FN16] In contrast to the use of Loving in the pleadings below, the plurality opinion in Baehr ignored Loving in its due process analysis. Indeed, the plurality agreed with the dissent (and implicitly with the concurrence) that there was no fundamental right to same- sex marriage at all under the due process or right to privacy provisions of the Hawaii State Constitution. [FN17]

*207 Instead, taking a page from Lambda's play book, the plurality adopted the Loving analogy as part of its equal protection analysis. In their narrative of Loving, Justices Levinson and Moon set the U.S. Supreme Court against the Virginia courts. On one side was Loving v. Virginia, based on the Fourteenth Amendment's antipathy to "individious discrimination" based on "racial classifications," regardless of what form they took. [FN18] On the other side were the Virginia Courts, exemplified by Loving v. Commonwealth, [FN19] committed to the unholy trio of (1) appeals to Divine Will, (2) appeals to "custom," and (3) the use of a formalistic theory of "equal application." [FN20]

The Attorney General of Hawaii, however, had made no appeals to Divine Will, so the court's heavy emphasis on the Virginia trial court's diatribe was apparently gratuitous. Perhaps the plurality meant to attack the very idea that anything could be intrinsically natural or unnatural. If so, it could then have applied that approach to its views about "couples" and "civil liberties." Indeed, it could have deconstructed the very idea of the individual. But it stopped with marriage. So far as Justice Levinson and Chief Justice Moon were concerned, the State's appeals to custom and equal application were as faulty as those made thirty years earlier by the State of Virginia in the defense of racism. Just as the Lovings were discriminated against based upon their race, the Baehr plurality contended, the three plaintiff couples were being discriminated against based on their sex. [FN21] In two now-classic quotes, the Baehr plurality put the issue in the following terms.

With all due respect to the Virginia courts of a bygone era, we do not believe that trial judges are the ultimate authorities on the subject of Divine Will, and, as Loving amply demonstrates, constitutional law may mandate, like it or not, that customs change with an evolving social order. [FN22]

Therefore, in the words of the second quote, "substitution of 'sex' for 'race' in Article I, Section 5 of the Fourteenth Amendment yields the precise case before us together with the conclusion that we have reached." [FN23]

*208 In his dissent, Judge Heen was not impressed by this analogy. "Loving," he replied, "is simply not authority for the plurality's proposition that the civil right to marriage must be accorded to same sex couples." [FN24] Echoing arguments that had been made before, and have been made since, Heen argued that Loving was a case about race, not analogous to a case about same-sex couples. Because the Hawaii marriage law is equally open to both sexes, it is therefore not parallel to the so-called "equal application" theory advanced by Virginia. The rationales were not parallel, he insisted, because while the Virginia law was based on invidious racial discrimination, the Hawaii law is not based upon invidious sex discrimination. [FN25] Instead, the Hawaii law was based on the nature of the institution of marriage. Judge Heen did not invoke Divine Will; nor did he invoke custom, in the sense of mere convention. Instead, he made a definitional argument, drawing upon Singer v. Hara, a key decision from the State of Washington, which had addressed the question of sex-based classifications:

[A]ppellants are not being denied entry into the marriage relationship because of their sex; rather, they are being denied entry into the marriage relationship because of the recognized definition of that relationship as one which may be entered into only by two persons who are members of the opposite sex. [FN26]

Heen insisted that this was not a circular argument, but simply a true description of marriage. The plurality, not surprisingly, rejected this "exercise in tortured and conclusory sophistry." [FN27] In response to Heen's arguments, they simply quoted back from the text of the Loving decision. Here we see how the Loving analogy becomes less of a legal argument, and more of a powerful political weapon. The plurality was directly comparing Judge Heen to the Virginia judges. [FN28]

In its Motion for Reconsideration, filed shortly after the initial decision in Baehr v. Lewin, the State attacked the plurality's use of Loving. First, it drew the following contrast between Virginia's and Hawaii's laws: In Virginia, interracial couples were also forbidden to cohabit. In Hawaii, on the other hand, same-sex couples are free to cohabit, make private contractual promises, and receive recognition from established formal or informal social institutions. [FN29]

*209 Second, the State argued that the "basic civil right" to marry identified in Loving--the right, in Loving's words, pertaining to our "existence and survival" -- was based on a heterosexual definition of marriage. [FN30] "Only those who are blind to reality," the Attorney General argued, "could read the precedents which define the 'freedom to marry' and to find that 'marriage' to a person of one's own sex is 'fundamental to our very existence and survival."' [FN31] The view that marriage is "a mere state- endorsed partnership [is] nothing but 'tortured and conclusory sophistry," [FN32] throwing the plurality's words back at them. The plurality responded by reaffirming their decision and remanding it to the lower court for a trial. [FN33]

The case, renamed Baehr v. Miike, finally came to trial in 1996. Dan Foley, the plaintiffs' lead counsel, invoked Loving eloquently in his opening and closing statements. [FN34] Loving was not an issue in the trial, however, and was only briefly discussed in the post-trial documents submitted by the parties. [FN35] While it was invoked in a number of the trial-level amicus briefs submitted by organizations on both sides, [FN36] Judge Chang's trial court opinion *210 of December 3, 1996 ignored it. [FN37] The debate about Loving has continued in the briefs filed in the pending appeal before the Hawaii Supreme Court. The State argues that Loving "proceeded from the premise, not present in this case, that the classification at issue employed a suspect criterion." It also claims that while the law at issue in Loving clearly discriminated in favor of whites and against blacks, in contrast, "Hawaii's marriage law has neither the purpose nor the effect of discriminating against either women or men. To the contrary, its purpose and effect are to treat men and women as co-equal partners, each a necessary part of the union." [FN38] The plaintiffs defend the Hawaii Supreme Court's original use of Loving, while using it to take aim at the State: "Apparently, the Director would have this court embrace the logic of the Virginia Supreme Court." "This court," they add, "should decline the Director's invitation to turn back the clock." [FN39] This is nothing but "playing the Loving card." The plaintiffs call the Hawaii Supreme Court to a supposedly nobler mission, explicitly recalling the earlier struggles against anti- miscegenation laws: "One state had to show leadership, and the court was properly asked to provide it through a direct and timely challenge to existing discrimination. The court did not flinch. History has upheld it." [FN40] Similar attacks were made by amici on the Attorneys General of other states filing in support of the State of Hawaii. [FN41]

*211 C. The Political Debate about the Analogy

Between the court's bombshell opinion in 1993 and the case's second arrival to the court in mid-1997, the use of the Loving analogy shifted to other venues in Hawaii. Between 1993 and 1997, the message of supposed equivalence between interracial and same-sex marriage was preached relentlessly in newspaper editorials, columns by activists, and legislative speeches.

Both major Hawaii newspapers have openly supported same-sex marriage from the beginning. Within a week after the Baehr decision, the HONOLULU ADVERTISER had this to say about the issue:

By granting license [sic] to marry to gays and lesbians, will Hawaii go beyond tolerance to officially sanctioning (and indeed rewarding) a relationship outside the norm of the standards of the majority of the community? The answer, today, is yes. Yet society's standards are constantly evolving. There was a time not long ago when most states had laws against marriage between persons of different races. [FN42]

Several weeks later, after the supreme court rejected the State's Motion for Reconsideration, the HONOLULU STAR-BULLETIN was even more blunt. "The battle for acceptance and equal rights for gays isn't over by a long shot," it announced. "Many Americans still consider homosexuality to be immoral and a form of mental illness." The paper was not subtle in how it characterized these Americans: "Fear and ignorance have long been the enemies of sound public policy. Ethnic cleansers, Ku Klux Klansmen, fascists and witch burners have used them to deny people life, liberty and happiness throughout history." [FN43]

The drumbeat continued throughout the 1994 legislative session, inside and outside of the state capitol. In April, when the legislature passed a bill in response to the Baehr decision, legislators supportive of same-sex unions began "playing the Loving card." "I've heard the argument that there is no discrimination because members of both genders are equally forbidden from marrying anyone of the same gender," said Senator Matt Matsunaga on the floor of the Senate. "But similar arguments failed to save the laws against inter- racial marriage in which everyone was equally forbidden to marry anyone of a different race. Parallel discriminations are *212 still, nonetheless, discriminations." [FN44] In response, Senator Stan Koki shot back: "This is not an issue about civil rights. Blacks and minorities have suffered economic hardship. They've been treated as second class -- in the back of the bus, separate bathrooms. None of this applies here in this case." [FN45] The final text of the bill included a lengthy discussion of Loving in its opening section, and explicitly rejected the Loving analogy. This provoked one Representative to compare the bill to discriminatory Jim Crow laws. [FN46]

This pattern of attack was also displayed to great effect in the 1995 Report of the Commission on Sexual Orientation and the Law. [FN47] The Chairman of the Commission, Thomas P. Gill, was a member of the Board of Directors of the local ACLU, and a strong supporter of same-sex marriage. [FN48] The Majority Report spent a full four pages discussing Loving, offering analogies to the same-sex marriage debate. The opponents of same-sex marriage, they charged, were making the same kinds of arguments that had been made thirty years earlier: appeals to religion, morality and public health; unwillingness to recognize existing relationships; unwarranted fears of economic disruption; concerns about children; and appeals to public opinion. "The Commission favors the belief of John F. Kennedy: 'If we cannot end our differences, at least we can help make the world safe for diversity."' [FN49] The minority opinion, however, challenged the Majority's caricature of their position, and challenged the Loving analogy as well. [FN50] *213 The majority responded in a condescending tone to the minority: "The Minority apparently thinks our Supreme Court was misguided when it cited Loving. The majority agrees with the Supreme Court." [FN51]

In particular, "the Loving card" was played during the 1996 and 1997 legislative sessions, in an effort to stop a proposed amendment in the Hawaii Constitution. During this period, the Loving analogy was invoked in at least seven editorials in the HONOLULU ADVERTISER and HONOLULU STAR-BULLETIN. [FN52] In one case, when the ADVERTISER published a dissenting view by the late Rex E. Lee, former Solicitor General of the United States, it felt compelled to attack him directly in the same section. "Consider what the results would have been if a constitutional ban on interracial marriages had been proposed in the deep South before the civil rights era," it hissed. "Of course it would have passed. And of course it would have been wrong." [FN53] With that, the former Solicitor General's well-reasoned beliefs were slandered with the brush of bigotry.

When the proposed constitutional amendment came to the Hawaii House floor for third reading in early 1997, Representative Ed Case made an impassioned speech against it. In words that some might call eloquent, and others might call inflammatory, he made the following set of analogies:

So, to the black children of Arkansas in the early 1950s, whom the majority didn't want to attend white schools, this no vote is for you. To the Japanese-American internees of World War II, who should have been protected by our Constitution from majority *214 America, but at least had a Constitution from which to seek protection, this no vote is for you. To all of the interracial couples of the past, present and future, whom the majority didn't want to marry, this no vote is for you .... To those who fear the rise of the thought police and the drive to homogenize a country and state whose greatest strengths are their diversity, this no vote is for you. To all of the minorities of the past, and to those minorities of the future whose circumstances we cannot even imagine today, this no vote is for you. This no vote is for us all. [FN54]

In the face of such strident attacks, the Reverend Marc Alexander, Executive Director of the Hawaii Catholic Conference offered the following response on behalf of his fellow citizens:

Our Aloha State has been in turmoil since the Hawaii State Supreme Court decision in Baehr v. Miike in May of 1993 which forced the issue of 'same- sex marriage' into the public forum. The public discourse which has transpired has helped the people of Hawaii realize how important the institution of marriage really is. In 1991 some 49% of the people of Hawaii opposed 'same-sex marriage.' As of last year, that figure had increased to almost 75% of the people of Hawaii, a people known for their 'aloha' and tolerance. In fact, just last week some 7,000 people rallied in a very dignified and respectful way in favor of traditional marriage. The people who gathered came from across our state. We were ordinary people, normally silent, young and old, married and single, from every ethnic group in Hawaii, religious and non-religious. Looking at the masses I couldn't help but think that this group had nothing in common except that Hawaii is our home and we are convinced that marriage should not be redefined. The 75% of the people who want marriage to be marriage can hardly be compared to Southern white racists of the 50's and 60's or to religious bigots. No, we just want what is best for our community and our children. And we want our right and power to determine public policy returned to us. We approved our State Constitution and we have the right to change it. [FN55]

*215 Nevertheless, the rhetorical onslaught continued. Senator Avery Chumbley, co-chair of the Hawaii Senate Judiciary Committee, expressed sentiments similar to those of Representative Case when the final text of the Amendment came to the Senate floor several months later:

Apart from the constitution itself, I believe that America's commitment to fairness and quality is best captured in the words of Dr. Martin Luther King, 'I have a dream,' he said, 'that some day my children will be judged not by the color of their skin but rather by the content of their character.' And as legislators, it is a daily challenge that we make real this dream and to ensure that distinctions imposed by the law are based on genuine and substantial governmental interests and not based on fear, ignorance, or prejudice. [FN56]

Senator Chumbley gave some indication of what he meant by "fear, ignorance, or prejudice" by stating:

Most of the opposition to same-sex marriage and reciprocal benefits came from persons who stated that they were so motivated by strong religious beliefs. I understand that religious beliefs compel some people to oppose same-sex marriage because these relationships involve what some consider aberrant and deviant sexual behavior. I struggled in talking with these persons who were sometimes ill-informed and, unfortunately, responding from fear rather than from a place of tolerance and understanding.... In the end, I am willing to acknowledge that political pressure was brought and bought by persons both within and outside of Hawaii, which allowed for the 'majority' to be able to overrule the minority. [FN57]

It is little wonder, then, that in the Hawaii House Chamber, on that same day, Representative Gene Ward made a speech in support of the Marriage Amendment that reflected his clear understanding of the dynamics of the situation, and the politics of the Loving analogy: "Using Judge Levinson's logic in the Loving case and the compelling State interest by which it was framed, Mr. Speaker, it's tantamount to me asking you do you still beat your wife." [FN58]

In short, while the positive formulation of the Loving analogy has appeared from time to time, when the pressure is on, it is the accusation of "no better than Jim Crow" that gets thrown into the debate. When the debate grows fierce, the argument takes on a razor's edge. Consider, for instance, *216 the meaning of radio and TV ads aired in 1997 with the following set of images:

(1) Japanese-Americans being forced into internment camps,

(2) dramatic footage from marches during the civil rights movement, and then

(3) a message: "Threatens the rights of all." [FN59]

The clear message is that preserving marriage under existing law is no different than imprisoning or attacking ethnic minorities. This is not a legal argument but simply "playing the Loving card."

Ironically, this message has been broadcast to the same citizens who live, day by day, at work, in neighborhoods, in religious communities, and in the public square alongside neighbors who call themselves "gay" and "lesbian." Most of these citizens of Hawaii are able both to support the existing marriage law and still respect their neighbors. Despite this negative media campaign--or perhaps because of it--seventy percent of citizens of Hawaii continue to oppose the legalization of "same-sex marriage," especially if it is forced upon them by the judiciary. [FN60] At this point, when the rubber of progressive legal theory hits the road of public argument, much of what has been grandly theorized about in the academy comes to a screeching halt. Even with the ACLU out spending their opponents two to-one, the proposed constitutional amendment passed the legislature, and will go before the voters of Hawaii on November 3, 1998. [FN61] The citizens of Hawaii can count on seeing more propaganda during the coming year. [FN62]

*217 D. The Power and Purchase of the Analogy

What, then, can be said in summary about the power and purchase of the Loving analogy, as it appears on the ground in Hawaii where the marriage debate has gone the furthest? It would appear that the Loving analogy is not so much an argument about heterosexism, since that is a complex argument more suited to legal conferences than to radio and television propaganda. Instead, it has been used as a blunt instrument to achieve certain goals, among them (1) claiming the moral high ground of civil rights, and (2) intimidating and shaming one's opposition and the general public. This has been done not by offering legal arguments, but by projecting emotional images and associations. The goal of playing "the Loving card" is to soften up the public, so it will not mobilize. After all, the plaintiffs, their attorneys, and the organizations advancing their campaign win if the public does nothing. The advocates are not trying to convince the public of anything, except to stay home. By definition, they are trying to circumvent the democratic process and achieve their results through the anti-majoritarian courts.

A. What is the Analogy?

What exactly is the Loving analogy? The answer is more complex than it might appear. It can be formulated in different ways, ranging along a spectrum from somewhat friendly to outright hostile. The difference in the formulations becomes more evident if the analogy is presented sequentially. Here is a relatively mild-sounding version:

As Loving is about broadening marriage to include interracial couples, so Baehr is about broadening marriage to include same-sex couples.

It can also be stated in the following manner:

As thirty years ago, people defined marriage as something between people of the same race, but this was redefined, so today people define marriage as a relationship between people of the same sexual orientation, and this should be redefined.

Then again, the alleged analogy can be restated in another, slightly more pointed way:

As race was irrelevant to marriage then, so sex is irrelevant to marriage now.

Finally, here is a statement of the analogy which exemplifies the hostile end of the spectrum:

*205 As Virginia's law was enacted by racist citizens and elected officials, embodied the ideology of white supremacy, and was validly overturned by the courts, so Hawaii's law was enacted by heterosexist citizens and elected officials, and embodies the ideology of heterosexual supremacy, and should be overturned by the courts.

Needless to say, this formulation is clearly not designed to persuade one's opponents. It is a subtle way of telling people that they are no different than a bunch of Jim Crow racists, and ought to be ashamed of themselves -- so ashamed that they should get out of the way and leave the definition of marriage to the courts.

Now, let us see how these ways of formulating the argument have appeared in Hawaii.

B. The Role of the Analogy in the Baehr Litigation [FN9]

Until the time of the 1993 plurality opinion of the Hawaii Supreme Court, it was the State that made a point of discussing Loving, to affirm the due process right to marry rather than to address questions of equal protection. [FN10] Up to this time, the plaintiffs paid little attention to Loving. [FN11] During the pleadings below, the local ACLU filed an amicus brief that equated *206 racism and criticism of homosexuality. [FN12] But Judge Klein did not cite Loving in his opinion and order. [FN13]

As far as I can tell, the Loving analogy was first explicitly introduced into the case in the amicus brief submitted in 1992 to the Hawaii Supreme Court by the Lambda Legal Defense and Education Fund. It was co-authored by Kirk Cashmere, Lambda's local counsel in Honolulu, and Evan Wolfson, [FN14] a senior staff attorney at Lambda's headquarters in New York City. This brief argued that Virginia's law was based on a "long social history of defining marriage as intrinsically intraracial," and went on to claim that "the 'opposite sex' requirement burdening gay people's right to choose our life partners, like the analogous racial restriction in Loving, is unconstitutional." [FN15]

The most dramatic example of the use of the Loving analogy came in Baehr v. Lewin, the landmark decision issued by a plurality of the Hawaii Supreme Court on May 5, 1993. [FN16] In contrast to the use of Loving in the pleadings below, the plurality opinion in Baehr ignored Loving in its due process analysis. Indeed, the plurality agreed with the dissent (and implicitly with the concurrence) that there was no fundamental right to same- sex marriage at all under the due process or right to privacy provisions of the Hawaii State Constitution. [FN17]

*207 Instead, taking a page from Lambda's play book, the plurality adopted the Loving analogy as part of its equal protection analysis. In their narrative of Loving, Justices Levinson and Moon set the U.S. Supreme Court against the Virginia courts. On one side was Loving v. Virginia, based on the Fourteenth Amendment's antipathy to "individious discrimination" based on "racial classifications," regardless of what form they took. [FN18] On the other side were the Virginia Courts, exemplified by Loving v. Commonwealth, [FN19] committed to the unholy trio of (1) appeals to Divine Will, (2) appeals to "custom," and (3) the use of a formalistic theory of "equal application." [FN20]

The Attorney General of Hawaii, however, had made no appeals to Divine Will, so the court's heavy emphasis on the Virginia trial court's diatribe was apparently gratuitous. Perhaps the plurality meant to attack the very idea that anything could be intrinsically natural or unnatural. If so, it could then have applied that approach to its views about "couples" and "civil liberties." Indeed, it could have deconstructed the very idea of the individual. But it stopped with marriage. So far as Justice Levinson and Chief Justice Moon were concerned, the State's appeals to custom and equal application were as faulty as those made thirty years earlier by the State of Virginia in the defense of racism. Just as the Lovings were discriminated against based upon their race, the Baehr plurality contended, the three plaintiff couples were being discriminated against based on their sex. [FN21] In two now-classic quotes, the Baehr plurality put the issue in the following terms.

With all due respect to the Virginia courts of a bygone era, we do not believe that trial judges are the ultimate authorities on the subject of Divine Will, and, as Loving amply demonstrates, constitutional law may mandate, like it or not, that customs change with an evolving social order. [FN22]

Therefore, in the words of the second quote, "substitution of 'sex' for 'race' in Article I, Section 5 of the Fourteenth Amendment yields the precise case before us together with the conclusion that we have reached." [FN23]

*208 In his dissent, Judge Heen was not impressed by this analogy. "Loving," he replied, "is simply not authority for the plurality's proposition that the civil right to marriage must be accorded to same sex couples." [FN24] Echoing arguments that had been made before, and have been made since, Heen argued that Loving was a case about race, not analogous to a case about same-sex couples. Because the Hawaii marriage law is equally open to both sexes, it is therefore not parallel to the so-called "equal application" theory advanced by Virginia. The rationales were not parallel, he insisted, because while the Virginia law was based on invidious racial discrimination, the Hawaii law is not based upon invidious sex discrimination. [FN25] Instead, the Hawaii law was based on the nature of the institution of marriage. Judge Heen did not invoke Divine Will; nor did he invoke custom, in the sense of mere convention. Instead, he made a definitional argument, drawing upon Singer v. Hara, a key decision from the State of Washington, which had addressed the question of sex-based classifications:

[A]ppellants are not being denied entry into the marriage relationship because of their sex; rather, they are being denied entry into the marriage relationship because of the recognized definition of that relationship as one which may be entered into only by two persons who are members of the opposite sex. [FN26]

Heen insisted that this was not a circular argument, but simply a true description of marriage. The plurality, not surprisingly, rejected this "exercise in tortured and conclusory sophistry." [FN27] In response to Heen's arguments, they simply quoted back from the text of the Loving decision. Here we see how the Loving analogy becomes less of a legal argument, and more of a powerful political weapon. The plurality was directly comparing Judge Heen to the Virginia judges. [FN28]

In its Motion for Reconsideration, filed shortly after the initial decision in Baehr v. Lewin, the State attacked the plurality's use of Loving. First, it drew the following contrast between Virginia's and Hawaii's laws: In Virginia, interracial couples were also forbidden to cohabit. In Hawaii, on the other hand, same-sex couples are free to cohabit, make private contractual promises, and receive recognition from established formal or informal social institutions. [FN29]

*209 Second, the State argued that the "basic civil right" to marry identified in Loving--the right, in Loving's words, pertaining to our "existence and survival" -- was based on a heterosexual definition of marriage. [FN30] "Only those who are blind to reality," the Attorney General argued, "could read the precedents which define the 'freedom to marry' and to find that 'marriage' to a person of one's own sex is 'fundamental to our very existence and survival."' [FN31] The view that marriage is "a mere state- endorsed partnership [is] nothing but 'tortured and conclusory sophistry," [FN32] throwing the plurality's words back at them. The plurality responded by reaffirming their decision and remanding it to the lower court for a trial. [FN33]

The case, renamed Baehr v. Miike, finally came to trial in 1996. Dan Foley, the plaintiffs' lead counsel, invoked Loving eloquently in his opening and closing statements. [FN34] Loving was not an issue in the trial, however, and was only briefly discussed in the post-trial documents submitted by the parties. [FN35] While it was invoked in a number of the trial-level amicus briefs submitted by organizations on both sides, [FN36] Judge Chang's trial court opinion *210 of December 3, 1996 ignored it. [FN37] The debate about Loving has continued in the briefs filed in the pending appeal before the Hawaii Supreme Court. The State argues that Loving "proceeded from the premise, not present in this case, that the classification at issue employed a suspect criterion." It also claims that while the law at issue in Loving clearly discriminated in favor of whites and against blacks, in contrast, "Hawaii's marriage law has neither the purpose nor the effect of discriminating against either women or men. To the contrary, its purpose and effect are to treat men and women as co-equal partners, each a necessary part of the union." [FN38] The plaintiffs defend the Hawaii Supreme Court's original use of Loving, while using it to take aim at the State: "Apparently, the Director would have this court embrace the logic of the Virginia Supreme Court." "This court," they add, "should decline the Director's invitation to turn back the clock." [FN39] This is nothing but "playing the Loving card." The plaintiffs call the Hawaii Supreme Court to a supposedly nobler mission, explicitly recalling the earlier struggles against anti- miscegenation laws: "One state had to show leadership, and the court was properly asked to provide it through a direct and timely challenge to existing discrimination. The court did not flinch. History has upheld it." [FN40] Similar attacks were made by amici on the Attorneys General of other states filing in support of the State of Hawaii. [FN41]

*211 C. The Political Debate about the Analogy

Between the court's bombshell opinion in 1993 and the case's second arrival to the court in mid-1997, the use of the Loving analogy shifted to other venues in Hawaii. Between 1993 and 1997, the message of supposed equivalence between interracial and same-sex marriage was preached relentlessly in newspaper editorials, columns by activists, and legislative speeches.

Both major Hawaii newspapers have openly supported same-sex marriage from the beginning. Within a week after the Baehr decision, the HONOLULU ADVERTISER had this to say about the issue:

By granting license [sic] to marry to gays and lesbians, will Hawaii go beyond tolerance to officially sanctioning (and indeed rewarding) a relationship outside the norm of the standards of the majority of the community? The answer, today, is yes. Yet society's standards are constantly evolving. There was a time not long ago when most states had laws against marriage between persons of different races. [FN42]

Several weeks later, after the supreme court rejected the State's Motion for Reconsideration, the HONOLULU STAR-BULLETIN was even more blunt. "The battle for acceptance and equal rights for gays isn't over by a long shot," it announced. "Many Americans still consider homosexuality to be immoral and a form of mental illness." The paper was not subtle in how it characterized these Americans: "Fear and ignorance have long been the enemies of sound public policy. Ethnic cleansers, Ku Klux Klansmen, fascists and witch burners have used them to deny people life, liberty and happiness throughout history." [FN43]

The drumbeat continued throughout the 1994 legislative session, inside and outside of the state capitol. In April, when the legislature passed a bill in response to the Baehr decision, legislators supportive of same-sex unions began "playing the Loving card." "I've heard the argument that there is no discrimination because members of both genders are equally forbidden from marrying anyone of the same gender," said Senator Matt Matsunaga on the floor of the Senate. "But similar arguments failed to save the laws against inter- racial marriage in which everyone was equally forbidden to marry anyone of a different race. Parallel discriminations are *212 still, nonetheless, discriminations." [FN44] In response, Senator Stan Koki shot back: "This is not an issue about civil rights. Blacks and minorities have suffered economic hardship. They've been treated as second class -- in the back of the bus, separate bathrooms. None of this applies here in this case." [FN45] The final text of the bill included a lengthy discussion of Loving in its opening section, and explicitly rejected the Loving analogy. This provoked one Representative to compare the bill to discriminatory Jim Crow laws. [FN46]

This pattern of attack was also displayed to great effect in the 1995 Report of the Commission on Sexual Orientation and the Law. [FN47] The Chairman of the Commission, Thomas P. Gill, was a member of the Board of Directors of the local ACLU, and a strong supporter of same-sex marriage. [FN48] The Majority Report spent a full four pages discussing Loving, offering analogies to the same-sex marriage debate. The opponents of same-sex marriage, they charged, were making the same kinds of arguments that had been made thirty years earlier: appeals to religion, morality and public health; unwillingness to recognize existing relationships; unwarranted fears of economic disruption; concerns about children; and appeals to public opinion. "The Commission favors the belief of John F. Kennedy: 'If we cannot end our differences, at least we can help make the world safe for diversity."' [FN49] The minority opinion, however, challenged the Majority's caricature of their position, and challenged the Loving analogy as well. [FN50] *213 The majority responded in a condescending tone to the minority: "The Minority apparently thinks our Supreme Court was misguided when it cited Loving. The majority agrees with the Supreme Court." [FN51]

In particular, "the Loving card" was played during the 1996 and 1997 legislative sessions, in an effort to stop a proposed amendment in the Hawaii Constitution. During this period, the Loving analogy was invoked in at least seven editorials in the HONOLULU ADVERTISER and HONOLULU STAR-BULLETIN. [FN52] In one case, when the ADVERTISER published a dissenting view by the late Rex E. Lee, former Solicitor General of the United States, it felt compelled to attack him directly in the same section. "Consider what the results would have been if a constitutional ban on interracial marriages had been proposed in the deep South before the civil rights era," it hissed. "Of course it would have passed. And of course it would have been wrong." [FN53] With that, the former Solicitor General's well-reasoned beliefs were slandered with the brush of bigotry.

When the proposed constitutional amendment came to the Hawaii House floor for third reading in early 1997, Representative Ed Case made an impassioned speech against it. In words that some might call eloquent, and others might call inflammatory, he made the following set of analogies:

So, to the black children of Arkansas in the early 1950s, whom the majority didn't want to attend white schools, this no vote is for you. To the Japanese-American internees of World War II, who should have been protected by our Constitution from majority *214 America, but at least had a Constitution from which to seek protection, this no vote is for you. To all of the interracial couples of the past, present and future, whom the majority didn't want to marry, this no vote is for you .... To those who fear the rise of the thought police and the drive to homogenize a country and state whose greatest strengths are their diversity, this no vote is for you. To all of the minorities of the past, and to those minorities of the future whose circumstances we cannot even imagine today, this no vote is for you. This no vote is for us all. [FN54]

In the face of such strident attacks, the Reverend Marc Alexander, Executive Director of the Hawaii Catholic Conference offered the following response on behalf of his fellow citizens:

Our Aloha State has been in turmoil since the Hawaii State Supreme Court decision in Baehr v. Miike in May of 1993 which forced the issue of 'same- sex marriage' into the public forum. The public discourse which has transpired has helped the people of Hawaii realize how important the institution of marriage really is. In 1991 some 49% of the people of Hawaii opposed 'same-sex marriage.' As of last year, that figure had increased to almost 75% of the people of Hawaii, a people known for their 'aloha' and tolerance. In fact, just last week some 7,000 people rallied in a very dignified and respectful way in favor of traditional marriage. The people who gathered came from across our state. We were ordinary people, normally silent, young and old, married and single, from every ethnic group in Hawaii, religious and non-religious. Looking at the masses I couldn't help but think that this group had nothing in common except that Hawaii is our home and we are convinced that marriage should not be redefined. The 75% of the people who want marriage to be marriage can hardly be compared to Southern white racists of the 50's and 60's or to religious bigots. No, we just want what is best for our community and our children. And we want our right and power to determine public policy returned to us. We approved our State Constitution and we have the right to change it. [FN55]

*215 Nevertheless, the rhetorical onslaught continued. Senator Avery Chumbley, co-chair of the Hawaii Senate Judiciary Committee, expressed sentiments similar to those of Representative Case when the final text of the Amendment came to the Senate floor several months later:

Apart from the constitution itself, I believe that America's commitment to fairness and quality is best captured in the words of Dr. Martin Luther King, 'I have a dream,' he said, 'that some day my children will be judged not by the color of their skin but rather by the content of their character.' And as legislators, it is a daily challenge that we make real this dream and to ensure that distinctions imposed by the law are based on genuine and substantial governmental interests and not based on fear, ignorance, or prejudice. [FN56]

Senator Chumbley gave some indication of what he meant by "fear, ignorance, or prejudice" by stating:

Most of the opposition to same-sex marriage and reciprocal benefits came from persons who stated that they were so motivated by strong religious beliefs. I understand that religious beliefs compel some people to oppose same-sex marriage because these relationships involve what some consider aberrant and deviant sexual behavior. I struggled in talking with these persons who were sometimes ill-informed and, unfortunately, responding from fear rather than from a place of tolerance and understanding.... In the end, I am willing to acknowledge that political pressure was brought and bought by persons both within and outside of Hawaii, which allowed for the 'majority' to be able to overrule the minority. [FN57]

It is little wonder, then, that in the Hawaii House Chamber, on that same day, Representative Gene Ward made a speech in support of the Marriage Amendment that reflected his clear understanding of the dynamics of the situation, and the politics of the Loving analogy: "Using Judge Levinson's logic in the Loving case and the compelling State interest by which it was framed, Mr. Speaker, it's tantamount to me asking you do you still beat your wife." [FN58]

In short, while the positive formulation of the Loving analogy has appeared from time to time, when the pressure is on, it is the accusation of "no better than Jim Crow" that gets thrown into the debate. When the debate grows fierce, the argument takes on a razor's edge. Consider, for instance, *216 the meaning of radio and TV ads aired in 1997 with the following set of images:

(1) Japanese-Americans being forced into internment camps,

(2) dramatic footage from marches during the civil rights movement, and then

(3) a message: "Threatens the rights of all." [FN59]

The clear message is that preserving marriage under existing law is no different than imprisoning or attacking ethnic minorities. This is not a legal argument but simply "playing the Loving card."

Ironically, this message has been broadcast to the same citizens who live, day by day, at work, in neighborhoods, in religious communities, and in the public square alongside neighbors who call themselves "gay" and "lesbian." Most of these citizens of Hawaii are able both to support the existing marriage law and still respect their neighbors. Despite this negative media campaign--or perhaps because of it--seventy percent of citizens of Hawaii continue to oppose the legalization of "same-sex marriage," especially if it is forced upon them by the judiciary. [FN60] At this point, when the rubber of progressive legal theory hits the road of public argument, much of what has been grandly theorized about in the academy comes to a screeching halt. Even with the ACLU out spending their opponents two to-one, the proposed constitutional amendment passed the legislature, and will go before the voters of Hawaii on November 3, 1998. [FN61] The citizens of Hawaii can count on seeing more propaganda during the coming year. [FN62]

*217 D. The Power and Purchase of the Analogy

What, then, can be said in summary about the power and purchase of the Loving analogy, as it appears on the ground in Hawaii where the marriage debate has gone the furthest? It would appear that the Loving analogy is not so much an argument about heterosexism, since that is a complex argument more suited to legal conferences than to radio and television propaganda. Instead, it has been used as a blunt instrument to achieve certain goals, among them (1) claiming the moral high ground of civil rights, and (2) intimidating and shaming one's opposition and the general public. This has been done not by offering legal arguments, but by projecting emotional images and associations. The goal of playing "the Loving card" is to soften up the public, so it will not mobilize. After all, the plaintiffs, their attorneys, and the organizations advancing their campaign win if the public does nothing. The advocates are not trying to convince the public of anything, except to stay home. By definition, they are trying to circumvent the democratic process and achieve their results through the anti-majoritarian courts.

A. What is the Analogy?

What exactly is the Loving analogy? The answer is more complex than it might appear. It can be formulated in different ways, ranging along a spectrum from somewhat friendly to outright hostile. The difference in the formulations becomes more evident if the analogy is presented sequentially. Here is a relatively mild-sounding version:

As Loving is about broadening marriage to include interracial couples, so Baehr is about broadening marriage to include same-sex couples.

It can also be stated in the following manner:

As thirty years ago, people defined marriage as something between people of the same race, but this was redefined, so today people define marriage as a relationship between people of the same sexual orientation, and this should be redefined.

Then again, the alleged analogy can be restated in another, slightly more pointed way:

As race was irrelevant to marriage then, so sex is irrelevant to marriage now.

Finally, here is a statement of the analogy which exemplifies the hostile end of the spectrum:

*205 As Virginia's law was enacted by racist citizens and elected officials, embodied the ideology of white supremacy, and was validly overturned by the courts, so Hawaii's law was enacted by heterosexist citizens and elected officials, and embodies the ideology of heterosexual supremacy, and should be overturned by the courts.

Needless to say, this formulation is clearly not designed to persuade one's opponents. It is a subtle way of telling people that they are no different than a bunch of Jim Crow racists, and ought to be ashamed of themselves -- so ashamed that they should get out of the way and leave the definition of marriage to the courts.

Now, let us see how these ways of formulating the argument have appeared in Hawaii.

B. The Role of the Analogy in the Baehr Litigation [FN9]

Until the time of the 1993 plurality opinion of the Hawaii Supreme Court, it was the State that made a point of discussing Loving, to affirm the due process right to marry rather than to address questions of equal protection. [FN10] Up to this time, the plaintiffs paid little attention to Loving. [FN11] During the pleadings below, the local ACLU filed an amicus brief that equated *206 racism and criticism of homosexuality. [FN12] But Judge Klein did not cite Loving in his opinion and order. [FN13]

As far as I can tell, the Loving analogy was first explicitly introduced into the case in the amicus brief submitted in 1992 to the Hawaii Supreme Court by the Lambda Legal Defense and Education Fund. It was co-authored by Kirk Cashmere, Lambda's local counsel in Honolulu, and Evan Wolfson, [FN14] a senior staff attorney at Lambda's headquarters in New York City. This brief argued that Virginia's law was based on a "long social history of defining marriage as intrinsically intraracial," and went on to claim that "the 'opposite sex' requirement burdening gay people's right to choose our life partners, like the analogous racial restriction in Loving, is unconstitutional." [FN15]

The most dramatic example of the use of the Loving analogy came in Baehr v. Lewin, the landmark decision issued by a plurality of the Hawaii Supreme Court on May 5, 1993. [FN16] In contrast to the use of Loving in the pleadings below, the plurality opinion in Baehr ignored Loving in its due process analysis. Indeed, the plurality agreed with the dissent (and implicitly with the concurrence) that there was no fundamental right to same- sex marriage at all under the due process or right to privacy provisions of the Hawaii State Constitution. [FN17]

*207 Instead, taking a page from Lambda's play book, the plurality adopted the Loving analogy as part of its equal protection analysis. In their narrative of Loving, Justices Levinson and Moon set the U.S. Supreme Court against the Virginia courts. On one side was Loving v. Virginia, based on the Fourteenth Amendment's antipathy to "individious discrimination" based on "racial classifications," regardless of what form they took. [FN18] On the other side were the Virginia Courts, exemplified by Loving v. Commonwealth, [FN19] committed to the unholy trio of (1) appeals to Divine Will, (2) appeals to "custom," and (3) the use of a formalistic theory of "equal application." [FN20]

The Attorney General of Hawaii, however, had made no appeals to Divine Will, so the court's heavy emphasis on the Virginia trial court's diatribe was apparently gratuitous. Perhaps the plurality meant to attack the very idea that anything could be intrinsically natural or unnatural. If so, it could then have applied that approach to its views about "couples" and "civil liberties." Indeed, it could have deconstructed the very idea of the individual. But it stopped with marriage. So far as Justice Levinson and Chief Justice Moon were concerned, the State's appeals to custom and equal application were as faulty as those made thirty years earlier by the State of Virginia in the defense of racism. Just as the Lovings were discriminated against based upon their race, the Baehr plurality contended, the three plaintiff couples were being discriminated against based on their sex. [FN21] In two now-classic quotes, the Baehr plurality put the issue in the following terms.

With all due respect to the Virginia courts of a bygone era, we do not believe that trial judges are the ultimate authorities on the subject of Divine Will, and, as Loving amply demonstrates, constitutional law may mandate, like it or not, that customs change with an evolving social order. [FN22]

Therefore, in the words of the second quote, "substitution of 'sex' for 'race' in Article I, Section 5 of the Fourteenth Amendment yields the precise case before us together with the conclusion that we have reached." [FN23]

*208 In his dissent, Judge Heen was not impressed by this analogy. "Loving," he replied, "is simply not authority for the plurality's proposition that the civil right to marriage must be accorded to same sex couples." [FN24] Echoing arguments that had been made before, and have been made since, Heen argued that Loving was a case about race, not analogous to a case about same-sex couples. Because the Hawaii marriage law is equally open to both sexes, it is therefore not parallel to the so-called "equal application" theory advanced by Virginia. The rationales were not parallel, he insisted, because while the Virginia law was based on invidious racial discrimination, the Hawaii law is not based upon invidious sex discrimination. [FN25] Instead, the Hawaii law was based on the nature of the institution of marriage. Judge Heen did not invoke Divine Will; nor did he invoke custom, in the sense of mere convention. Instead, he made a definitional argument, drawing upon Singer v. Hara, a key decision from the State of Washington, which had addressed the question of sex-based classifications:

[A]ppellants are not being denied entry into the marriage relationship because of their sex; rather, they are being denied entry into the marriage relationship because of the recognized definition of that relationship as one which may be entered into only by two persons who are members of the opposite sex. [FN26]

Heen insisted that this was not a circular argument, but simply a true description of marriage. The plurality, not surprisingly, rejected this "exercise in tortured and conclusory sophistry." [FN27] In response to Heen's arguments, they simply quoted back from the text of the Loving decision. Here we see how the Loving analogy becomes less of a legal argument, and more of a powerful political weapon. The plurality was directly comparing Judge Heen to the Virginia judges. [FN28]

In its Motion for Reconsideration, filed shortly after the initial decision in Baehr v. Lewin, the State attacked the plurality's use of Loving. First, it drew the following contrast between Virginia's and Hawaii's laws: In Virginia, interracial couples were also forbidden to cohabit. In Hawaii, on the other hand, same-sex couples are free to cohabit, make private contractual promises, and receive recognition from established formal or informal social institutions. [FN29]

*209 Second, the State argued that the "basic civil right" to marry identified in Loving--the right, in Loving's words, pertaining to our "existence and survival" -- was based on a heterosexual definition of marriage. [FN30] "Only those who are blind to reality," the Attorney General argued, "could read the precedents which define the 'freedom to marry' and to find that 'marriage' to a person of one's own sex is 'fundamental to our very existence and survival."' [FN31] The view that marriage is "a mere state- endorsed partnership [is] nothing but 'tortured and conclusory sophistry," [FN32] throwing the plurality's words back at them. The plurality responded by reaffirming their decision and remanding it to the lower court for a trial. [FN33]

The case, renamed Baehr v. Miike, finally came to trial in 1996. Dan Foley, the plaintiffs' lead counsel, invoked Loving eloquently in his opening and closing statements. [FN34] Loving was not an issue in the trial, however, and was only briefly discussed in the post-trial documents submitted by the parties. [FN35] While it was invoked in a number of the trial-level amicus briefs submitted by organizations on both sides, [FN36] Judge Chang's trial court opinion *210 of December 3, 1996 ignored it. [FN37] The debate about Loving has continued in the briefs filed in the pending appeal before the Hawaii Supreme Court. The State argues that Loving "proceeded from the premise, not present in this case, that the classification at issue employed a suspect criterion." It also claims that while the law at issue in Loving clearly discriminated in favor of whites and against blacks, in contrast, "Hawaii's marriage law has neither the purpose nor the effect of discriminating against either women or men. To the contrary, its purpose and effect are to treat men and women as co-equal partners, each a necessary part of the union." [FN38] The plaintiffs defend the Hawaii Supreme Court's original use of Loving, while using it to take aim at the State: "Apparently, the Director would have this court embrace the logic of the Virginia Supreme Court." "This court," they add, "should decline the Director's invitation to turn back the clock." [FN39] This is nothing but "playing the Loving card." The plaintiffs call the Hawaii Supreme Court to a supposedly nobler mission, explicitly recalling the earlier struggles against anti- miscegenation laws: "One state had to show leadership, and the court was properly asked to provide it through a direct and timely challenge to existing discrimination. The court did not flinch. History has upheld it." [FN40] Similar attacks were made by amici on the Attorneys General of other states filing in support of the State of Hawaii. [FN41]

*211 C. The Political Debate about the Analogy

Between the court's bombshell opinion in 1993 and the case's second arrival to the court in mid-1997, the use of the Loving analogy shifted to other venues in Hawaii. Between 1993 and 1997, the message of supposed equivalence between interracial and same-sex marriage was preached relentlessly in newspaper editorials, columns by activists, and legislative speeches.

Both major Hawaii newspapers have openly supported same-sex marriage from the beginning. Within a week after the Baehr decision, the HONOLULU ADVERTISER had this to say about the issue:

By granting license [sic] to marry to gays and lesbians, will Hawaii go beyond tolerance to officially sanctioning (and indeed rewarding) a relationship outside the norm of the standards of the majority of the community? The answer, today, is yes. Yet society's standards are constantly evolving. There was a time not long ago when most states had laws against marriage between persons of different races. [FN42]

Several weeks later, after the supreme court rejected the State's Motion for Reconsideration, the HONOLULU STAR-BULLETIN was even more blunt. "The battle for acceptance and equal rights for gays isn't over by a long shot," it announced. "Many Americans still consider homosexuality to be immoral and a form of mental illness." The paper was not subtle in how it characterized these Americans: "Fear and ignorance have long been the enemies of sound public policy. Ethnic cleansers, Ku Klux Klansmen, fascists and witch burners have used them to deny people life, liberty and happiness throughout history." [FN43]

The drumbeat continued throughout the 1994 legislative session, inside and outside of the state capitol. In April, when the legislature passed a bill in response to the Baehr decision, legislators supportive of same-sex unions began "playing the Loving card." "I've heard the argument that there is no discrimination because members of both genders are equally forbidden from marrying anyone of the same gender," said Senator Matt Matsunaga on the floor of the Senate. "But similar arguments failed to save the laws against inter- racial marriage in which everyone was equally forbidden to marry anyone of a different race. Parallel discriminations are *212 still, nonetheless, discriminations." [FN44] In response, Senator Stan Koki shot back: "This is not an issue about civil rights. Blacks and minorities have suffered economic hardship. They've been treated as second class -- in the back of the bus, separate bathrooms. None of this applies here in this case." [FN45] The final text of the bill included a lengthy discussion of Loving in its opening section, and explicitly rejected the Loving analogy. This provoked one Representative to compare the bill to discriminatory Jim Crow laws. [FN46]

This pattern of attack was also displayed to great effect in the 1995 Report of the Commission on Sexual Orientation and the Law. [FN47] The Chairman of the Commission, Thomas P. Gill, was a member of the Board of Directors of the local ACLU, and a strong supporter of same-sex marriage. [FN48] The Majority Report spent a full four pages discussing Loving, offering analogies to the same-sex marriage debate. The opponents of same-sex marriage, they charged, were making the same kinds of arguments that had been made thirty years earlier: appeals to religion, morality and public health; unwillingness to recognize existing relationships; unwarranted fears of economic disruption; concerns about children; and appeals to public opinion. "The Commission favors the belief of John F. Kennedy: 'If we cannot end our differences, at least we can help make the world safe for diversity."' [FN49] The minority opinion, however, challenged the Majority's caricature of their position, and challenged the Loving analogy as well. [FN50] *213 The majority responded in a condescending tone to the minority: "The Minority apparently thinks our Supreme Court was misguided when it cited Loving. The majority agrees with the Supreme Court." [FN51]

In particular, "the Loving card" was played during the 1996 and 1997 legislative sessions, in an effort to stop a proposed amendment in the Hawaii Constitution. During this period, the Loving analogy was invoked in at least seven editorials in the HONOLULU ADVERTISER and HONOLULU STAR-BULLETIN. [FN52] In one case, when the ADVERTISER published a dissenting view by the late Rex E. Lee, former Solicitor General of the United States, it felt compelled to attack him directly in the same section. "Consider what the results would have been if a constitutional ban on interracial marriages had been proposed in the deep South before the civil rights era," it hissed. "Of course it would have passed. And of course it would have been wrong." [FN53] With that, the former Solicitor General's well-reasoned beliefs were slandered with the brush of bigotry.

When the proposed constitutional amendment came to the Hawaii House floor for third reading in early 1997, Representative Ed Case made an impassioned speech against it. In words that some might call eloquent, and others might call inflammatory, he made the following set of analogies:

So, to the black children of Arkansas in the early 1950s, whom the majority didn't want to attend white schools, this no vote is for you. To the Japanese-American internees of World War II, who should have been protected by our Constitution from majority *214 America, but at least had a Constitution from which to seek protection, this no vote is for you. To all of the interracial couples of the past, present and future, whom the majority didn't want to marry, this no vote is for you .... To those who fear the rise of the thought police and the drive to homogenize a country and state whose greatest strengths are their diversity, this no vote is for you. To all of the minorities of the past, and to those minorities of the future whose circumstances we cannot even imagine today, this no vote is for you. This no vote is for us all. [FN54]

In the face of such strident attacks, the Reverend Marc Alexander, Executive Director of the Hawaii Catholic Conference offered the following response on behalf of his fellow citizens:

Our Aloha State has been in turmoil since the Hawaii State Supreme Court decision in Baehr v. Miike in May of 1993 which forced the issue of 'same- sex marriage' into the public forum. The public discourse which has transpired has helped the people of Hawaii realize how important the institution of marriage really is. In 1991 some 49% of the people of Hawaii opposed 'same-sex marriage.' As of last year, that figure had increased to almost 75% of the people of Hawaii, a people known for their 'aloha' and tolerance. In fact, just last week some 7,000 people rallied in a very dignified and respectful way in favor of traditional marriage. The people who gathered came from across our state. We were ordinary people, normally silent, young and old, married and single, from every ethnic group in Hawaii, religious and non-religious. Looking at the masses I couldn't help but think that this group had nothing in common except that Hawaii is our home and we are convinced that marriage should not be redefined. The 75% of the people who want marriage to be marriage can hardly be compared to Southern white racists of the 50's and 60's or to religious bigots. No, we just want what is best for our community and our children. And we want our right and power to determine public policy returned to us. We approved our State Constitution and we have the right to change it. [FN55]

*215 Nevertheless, the rhetorical onslaught continued. Senator Avery Chumbley, co-chair of the Hawaii Senate Judiciary Committee, expressed sentiments similar to those of Representative Case when the final text of the Amendment came to the Senate floor several months later:

Apart from the constitution itself, I believe that America's commitment to fairness and quality is best captured in the words of Dr. Martin Luther King, 'I have a dream,' he said, 'that some day my children will be judged not by the color of their skin but rather by the content of their character.' And as legislators, it is a daily challenge that we make real this dream and to ensure that distinctions imposed by the law are based on genuine and substantial governmental interests and not based on fear, ignorance, or prejudice. [FN56]

Senator Chumbley gave some indication of what he meant by "fear, ignorance, or prejudice" by stating:

Most of the opposition to same-sex marriage and reciprocal benefits came from persons who stated that they were so motivated by strong religious beliefs. I understand that religious beliefs compel some people to oppose same-sex marriage because these relationships involve what some consider aberrant and deviant sexual behavior. I struggled in talking with these persons who were sometimes ill-informed and, unfortunately, responding from fear rather than from a place of tolerance and understanding.... In the end, I am willing to acknowledge that political pressure was brought and bought by persons both within and outside of Hawaii, which allowed for the 'majority' to be able to overrule the minority. [FN57]

It is little wonder, then, that in the Hawaii House Chamber, on that same day, Representative Gene Ward made a speech in support of the Marriage Amendment that reflected his clear understanding of the dynamics of the situation, and the politics of the Loving analogy: "Using Judge Levinson's logic in the Loving case and the compelling State interest by which it was framed, Mr. Speaker, it's tantamount to me asking you do you still beat your wife." [FN58]

In short, while the positive formulation of the Loving analogy has appeared from time to time, when the pressure is on, it is the accusation of "no better than Jim Crow" that gets thrown into the debate. When the debate grows fierce, the argument takes on a razor's edge. Consider, for instance, *216 the meaning of radio and TV ads aired in 1997 with the following set of images:

(1) Japanese-Americans being forced into internment camps,

(2) dramatic footage from marches during the civil rights movement, and then

(3) a message: "Threatens the rights of all." [FN59]

The clear message is that preserving marriage under existing law is no different than imprisoning or attacking ethnic minorities. This is not a legal argument but simply "playing the Loving card."

Ironically, this message has been broadcast to the same citizens who live, day by day, at work, in neighborhoods, in religious communities, and in the public square alongside neighbors who call themselves "gay" and "lesbian." Most of these citizens of Hawaii are able both to support the existing marriage law and still respect their neighbors. Despite this negative media campaign--or perhaps because of it--seventy percent of citizens of Hawaii continue to oppose the legalization of "same-sex marriage," especially if it is forced upon them by the judiciary. [FN60] At this point, when the rubber of progressive legal theory hits the road of public argument, much of what has been grandly theorized about in the academy comes to a screeching halt. Even with the ACLU out spending their opponents two to-one, the proposed constitutional amendment passed the legislature, and will go before the voters of Hawaii on November 3, 1998. [FN61] The citizens of Hawaii can count on seeing more propaganda during the coming year. [FN62]

*217 D. The Power and Purchase of the Analogy

What, then, can be said in summary about the power and purchase of the Loving analogy, as it appears on the ground in Hawaii where the marriage debate has gone the furthest? It would appear that the Loving analogy is not so much an argument about heterosexism, since that is a complex argument more suited to legal conferences than to radio and television propaganda. Instead, it has been used as a blunt instrument to achieve certain goals, among them (1) claiming the moral high ground of civil rights, and (2) intimidating and shaming one's opposition and the general public. This has been done not by offering legal arguments, but by projecting emotional images and associations. The goal of playing "the Loving card" is to soften up the public, so it will not mobilize. After all, the plaintiffs, their attorneys, and the organizations advancing their campaign win if the public does nothing. The advocates are not trying to convince the public of anything, except to stay home. By definition, they are trying to circumvent the democratic process and achieve their results through the anti-majoritarian courts.