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.
But 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.
In 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.
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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.