Ari Ezra Waldman | DOMA | Gay Marriage | Hawaii | Law - Gay, LGBT | News

Marriage Equality Comes to Hawaii: #TBT and 20 Years of Marriage History

By ARI EZRA WALDMAN

It's appropriate that today is #tbt (Throw-back Thursday) because this week, marriage equality came to Hawai'i, the state where it all began, where the this long (and increasingly successful) fight for the freedom to marry we are in right now started.

BaehrOf course, that's not entirely true. The fight for the freedom to marry for the LGBT community began decades and decades ago, in small living rooms in New York and secret coffee shops in San Francisco and in the minds of a few forward-thinking law students. In the late 1960s, a gay couple asked for a marriage license in Minnesota; the Minnesota Supreme Court said no. The U.S. Supreme Court had no objection. That was a case called Baker v. Nelson and it ended in 1971, over 40 years ago! Jack Baker's and Michael McConnell's losing effort was the first salvo in the first generation of marriage cases.

The current generation of marriage cases began in Hawai'i when three same-sex couples, including Ninia Baehr and Genora Dancel (pictured, right), asked the Hawai'i Department of Health for a marriage license, arguing that they met every state requirement for marriage except for the mere fact that each person loved someone of the same sex.

What happened next was remarkable.

Follow me AFTER THE JUMP to get the rest of the story and see how what happened in Hawai'i brought us to where we are today.

The Hawai'i Department of Health may have denied the couples licenses and the state district court may have dismissed the subsequent lawsuit, but the Hawai'i Supreme Court wasn't so quick to shatter Ninia's and Genora's dreams.

The case had two angles, asking two questions: Did Hawai'i's guarantee of a right to privacy include a fundamental right to marry the person you love, even if he or she is of the same gender? You can see the privacy angle here: It shouldn't be the State's concern whom you love and how you love and what sexual organs your lover has; that's a private matter. But, the State Supreme Court wasn't persuaded. The right to privacy was limited and it had not been traditionally extended to this situation.

HawaiiBut the Court wasn't done. The second angle asked: Was Hawai'i's refusal to recognize marriages for same-sex couples in violation of the state's guarantee of equal protection? If so, the state could not just willy-nilly proceed on its discriminatory path. Rather, it had to justify that discrimination under a "strict scrutiny" standard.

We've talked about levels of scrutiny before, notably in the run up to the Defense of Marriage Act and Prop 8 cases at the Supreme Court. Levels of scrutiny refer to how hard a look the judiciary will take at the state's action: If it is of the type that smells of bad behavior, it will take a really close look; if it is just standard economic regulation, it will just do a simple review to make sure the i's and the t's are dotted and crossed. Think of it like hurdles on a race track: The higher the hurdle (the more "exacting" or "searching" the inquiry is), the fewer hurdlers are going to make it over. In fact, only the best will. Similarly, the higher the level of scrutiny, few laws will pass constitutional muster. Only the really necessary, justifiable, narrow ones that do the least damage will.

If marriage discrimination violated equal protection and merited strict scrutiny, Hawai'i would have to prove that banning gays from marrying achieved a "compelling" state interest and the policy was "narrowly tailored" toward that goal. That's hard to do, especially, as we have seen in other cases, the goals of protecting children from imagined harms, encouraging promiscuous heteros to marry, and raising well-adjusted children have little to do with preventing gay couples from getting marriage licenses.

Baehr v. Lewin (later called Baehr v. Miike) was the first decision to say that marriage discrimination merited strict scrutiny and the Hawai'i Supreme Court remanded, or sent back down, the case to the trial judge to see if the state could ever meet that burden.

That's when the Hawai'i legislature and the United States Congress stepped in and began the backlash.

BobbarrIn Washington, two conservative Republicans, Bob Barr (pictured) of Georgia (who has since reversed course) and Don Nickles of Oklahoma introduced the Defense of Marriage Act (DOMA). The House Judiciary Committee's 1996 Report said DOMA was a direct response to Baehr because "a redefinition of marriage in Hawaii to include homosexual couples could make such couples eligible for a whole range of federal rights and benefits." They were worried that marriage freedom in one state would pull every other state along with it through the Full Faith and Credit Clause. DOMA, Congress said, "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."

DOMA was also meant to "reflect and honor a collective moral judgment and to express moral disapproval of homosexuality." Congress didn't hide it's purpose and intent. Baehr scared them. The gays were coming.

DOMA is no longer the law of the land, thanks to Edie Windsor and Windsor v. United States. But there is no doubt that DOMA existed because of Baehr. It was a backlash that took us 20 years to unravel.

After Congress passed DOMA, the lower court in Hawai'i found that the State could not meet strict scrutiny and ordered an end to the ban on gay marriage licenses. But he stayed his ruling. Ultimately, Hawai'i ended Baehr's quest by reinforcing its ban on gay marriage.

But the tide was already turning. In 1996, the Supreme Court decided Romer v. Evans, granting protections to gays as a class. In 2003, the Court destroyed anti-gay sodomy laws in Lawrence v. Texas and reinforced the fact that gays were a protected class equal under the law. Marriage freedom came to Massachusetts in 2004, then to Connecticut and California in 2008 (though the latter was famously interrupted until this year), then to Iowa, Vermont, and New Hampshire in 2009, then to New York in 2011. In 2012, we won our first popular vote, in Maine, and won popular votes affirming legislative enactments in Maryland and Washington.

After Rhode Island, Delaware, Minnesota, and a yet-to-be-signed legalization bill in Illinois, Hawai'i came full circle. Twenty years after Ms. Baehr dreamt of an idyllic Hawai'ian wedding, Democratic Governor Neil Abercrombie signed the freedom to marry bill on Wednesday.

But it was Ninia Baehr and her co-plaintiffs who started us on this court. Sure, there was a backlash, but without the shocks to the system by Ms. Baehr -- and then-San Francisco Mayor Gavin Newsom, who just started marrying his gay constituents, and so many other pioneers -- we would not be where we are today.

***

Follow me on Twitter: @ariezrawaldman

Ari Ezra Waldman is the Associate Director of the Institute for Information Law and Policy and a professor at New York Law School and is concurrently getting his PhD at Columbia University in New York City. He is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. Ari writes weekly posts on law and various LGBT issues.

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Comments

  1. CORRECTIONS: Baker and McConnell did not first apply for a marriage license in "the late 1960s" but in 1970. Nor was theirs "the first salvo in the first generation of marriage cases." Earlier that year, Rev. Troy Perry and a lesbian couple in California attempted unsuccessfully to have a same-sex "common law marriage" recognized because the couple had lived together the required two years and the law did not specify that they must be of different genders. Thank you.

    Posted by: Michael Bedwell | Nov 14, 2013 2:55:37 PM


  2. I want to point out one possible error. The DOMA decision of the Supreme Court only dealt with section 3, stating that the federal government would not recognize a valid marriage of a same sex couple from any state. Section 2, which stated that states may not recognize a valid same sex marriage from another state, was left intact.

    Posted by: Burch | Nov 14, 2013 3:31:19 PM


  3. Anyone know if they're still together?

    Posted by: Steve | Nov 14, 2013 3:31:40 PM


  4. @ Steve: if you're asking about Jack Baker and Michael McConnell, yes, they still are though they've religiously avoided the media for several years, though are allegedly finally writing a book. Baker lost another lawsuit several years later when he tried to get increased veteran benefits on the basis of being married. Little know is that he was one of the early gay service members that Frank Kameny helped before long before there was any group like AVER or SLDN. Discharged for being gay, Baker was promised an Honorable discharge but the Air Force reneged. Kameny went to bat for him, and his lesser discharge was upgraded. 1970 and more recent photos, as well as an early video of them at:

    http://tietheknot.org/jack-baker-and-michael-mcconnell/

    Posted by: Michael Bedwell | Nov 14, 2013 5:04:16 PM


  5. Ari - great post, as always. You bring real-world meaning to the overly complex legal meanderings. [and, Ari, anywhere anytime you say, we can exchange briefs in the most amicus way.]

    I am absolutely gobsmacked of the progress that we have made in such a short time. In less than 10 years we have gone from zero to more than 33% of Americans can now be married in their home state. And now I am going to watch with great pleasure and pride as the remaining states give up the fight. These states have nothing to look forward to but a relentless filings of lawsuits residents who demand to marry where they live and from those married elsewhere, relocate, and demand the rights they enjoyed elsewhere. States will hopefully realize that they are fighting an increasingly expensive battle long since lost and will do the right thing. Unfortunately, it looks like the holdouts are all going to be states that once flew the confederate flag [yikes - how embarrassing to be on the wrong side of two major civil rights issues]. I hope we focus our energy on Florida because once Florida comes to our side, the battle and the war are truly over.

    But Ari, seriously, just whisper 'heighten security' in my ear and we will both leap over high hurdles.

    Posted by: MikeBoston | Nov 14, 2013 5:25:48 PM


  6. Burch,

    DOMA section 2 says that states are not obligated to recognize same-sex marriages performed in other states. I've seen analyses by law professors who dismiss it as meaningless.

    States have long dealt with questions about recognizing out-of-state marriages (remember the flack the Obama Administration got when a conservative lawyer in the Justice Department cited some of these cases in a DOJ brief on DOMA?). States can claim that a particular category of marriage is so against public policy that it will be nullified by the state.

    A same-sex couple who wanted their marriage recognized by a non-equality state could sue for recognition. I'm not sure, but I suspect after the end of DOMA section 3, those might be in the pipeline. I can't imagine a state actually managing to justify their policy of not recognizing same-sex marriages.

    Posted by: John D | Nov 14, 2013 8:36:02 PM


  7. I meant Baehr and Dancel

    Posted by: Steve | Nov 15, 2013 2:44:12 PM


  8. Section 2 of DOMA lives but is really irrelevant. States rely on principles of comity, not the full faith and credit clause, to decide whether to recognize marriages performed in other jurisdictions. In the recent federal court ruling in Ohio ordering state officials to recognize a same-sex marriage performed in Maryland, the court didn't even mention Section 2 of DOMA, and relief on the Equal Protection Clause, reasoning that Ohio had no rational basis for distinguishing between out-of-state same-sex marriages and out-of-state different-sex marriages.

    Posted by: Art Leonard | Nov 18, 2013 11:20:21 AM


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