Tapestries orange rouge

Don’t forget the Baehr case

Ikaika M Hussey

Civil Beat ran a suggestively-titled piece by Eric Pape this morning, asking “Why is Hawaii so late to the gay marriage party?” Pape’s piece is short on Hawaii’s history with marriage equality, which is unfortunate because our history is quite remarkable, both locally and in terms of its effect on the national debate over marriage equality.

Back in 1990, ten years before Pape says “the gay marriage party started” in the Netherlands, three same-sex couples attempted to obtain marriage licenses here. The Department of Health demurred, resulting in the lawsuit Baehr v. Lewin (later Baehr v. Miike). The Supreme Court, led by Justice Levinson, found that under the state’s equal protection clause, denying marriage licenses to same-sex couples constituted discrimination based on sex that required justification by the state that the state needed to satisfy the standard known as strict scrutiny. The court remanded the case back to the trial court.

The spectre of same-sex marriage in Hawaii sparked a conservative responsive locally and nationally. Here, a flood of mainland monies, coupled with the rise of evangelical churches, led to a constitutional amendment which allowed the legislature to restrict marriage to different-sex couples. And nationally it provoked activists to push for local laws prohibiting marriage equality, as well as the federal Defense of Marriage Equality Act (DOMA).

Here’s what the House Judiciary Committee’s Report said in 1996 about DOMA:

...is a response to a very particular development in the State of Hawaii…. [T]he state courts in Hawaii appear to be on the verge of requiring that State to issue marriage licenses to same-sex couples. The prospect of permitting homosexual couples to “marry” in Hawaii threatens to have very real consequences both on federal law and on the laws (especially the marriage laws) of the various States.

In 2011 the Obama administration said that it would not enforce the law, and in 2013 the Supreme Court struck down the law as unconstitutional.

So to say that Hawaii is late to the party is to ignore Hawaii’s history. In fact, we were very, very early.