By: Stephen H. Levinson
Source: Levinson, Stephen H. Ninia Baehr, Genora Dancel et al. v. John C. Lewin. Reprinted in Hall, Kermit L., et. al. American Legal History: Cases and Materials. 2nd ed. New York: Oxford University Press, 1996, 572–574.
About the Author: Steven H. Levinson was born in Cincinnati, Ohio, attended Stanford University for his bachelor's degree, and received his law degree from the University of Michigan. While at Michigan Law School, Levinson wrote an article in the Michigan Journal of Law Reform. He worked for a law firm, and served on the Circuit Court of the First Judicial Circuit for three years before joining the Hawaii Supreme Court in 1992.
United States laws have generally criminalized homosexual behavior, although current thought (beginning with the Kinsey Reports in the 1940s and 1950s) suggests there is nothing aberrant about it. Indeed, gay and lesbian tradition has a long history in the United States, as do laws prohibiting sexual encounters between people of the same sex. For example, sodomy was criminalized by all thirteen states at the time of the Constitution's adoption. In the nineteenth century, many single women lived together in what were termed "Boston marriages," and many of the people living in such "marriages" were lesbians. Culturally, Americans held strong biases against gays and lesbians. Newspapers danced around terms to use when referring to them—"homosexual" becoming the politically correct alternative. The New York Times used the term very infrequently in the first half of the twentieth century—first in 1926, and not again until 1943. Homosexual communities did arise, however, especially in larger cities.
Marriage is something which was (and is) generally governed by state law. Each state establishes its own marriage requirements, such as residency and blood tests. Every other state, generally is obliged to respect the marriage (and divorce) decrees due to the "full faith and credit" clause of the U.S. Constitution, and because of a legal doctrine called comity. This has not always been the case, however. In the late 1800s, a famous divorce case occurred where a man paid for a married woman to move to Indiana from New York. The woman moved, waited and divorced her husband in Indiana. When she returned to New York and married the other man, New York refused to recognize Indiana's divorce. In general, however, marriage and divorce decrees have usually been accepted by all.
But what constitutes a marriage? Most states, implicitly or explicitly, defined marriage as being between one man and one woman. When homosexuality became a more public lifestyle after the late 1960s, gays and lesbians argued in favor of same sex marriages. No favorable court ruling for gays and lesbians came until the Supreme Court of Hawaii heard Baehr v. Lewin in 1993.
The three couples involved in this same-sex marriage case in Hawaii, won the battle, but in many ways lost the war. Hawaii soon acted to ban gay and lesbian marriages, passing legislation to that effect. The federal government got into the act, passing the "Defense of Marriage Act." This act held that no state was required to recognize any marriage from another state, unless that marriage was between one man and one woman. This "defense" of course, is from a heterosexual perspective.
Gays and lesbians did better in Vermont though. Vermont, which has recently been much more progressive than most other states (they elected an independent congressman with socialist views recently), acted to help gays and lesbians. That state created a "civil union," which gays and lesbians could enter into with their partners, and this civil union gave all the benefits of marriage in Vermont. Of course, if another state does not recognize the civil union there, the benefit only really exists within Vermont. As gay and lesbian issues receive more attention, the issue of gay and lesbian marriages will continue to simmer.
Primary Source: Ninia Baehr, Genora Dancel et al. v. John C. Lewin [excerpt]
SYNOPSIS: Levinson holds that the only reason these couples have been denied the right to marry is that they are homosexual, and this makes the law presumably unconstitutional under the Hawaii Constitution. Levinson then notes the benefits denied these couples because they are not married and reviews the case of Loving v. Virginia, which struck down an interracial marriage ban. The court then holds the marriage ban to be a sex-based classification, and therefore unconstitutional.
In addition to the alleged violation of their constitutional rights to privacy and due process of law, the applicant couples contend that they have been denied the equal protection of the laws as guaranteed by … the Hawaii Constitution.… [W]e agree … that: homosexuals … constitute a "suspect class" for purposes of equal protection analysis under … the Hawaii Constitution.…
The applicant couples correctly contend that the DOH's [Department of Health's] refusal to allow them to marry on the basis that they are members of the same sex deprives them of access to a multiplicity of rights and benefits that are contingent upon that status. Although it is unnecessary in this opinion to engage in an encyclopedic recitation of all of them, a number of the most salient marital rights and benefits are worthy of note. They include: (1) a variety of state income tax advantages, including deductions, credits, rates, exemptions, and estimates.… (2) public assistance from and ex emptions relating to the Department of Human Services.… (3) control, division, acquisition, and disposition of community property.… (4) rights re lating to dower, curtesy, and inheritance.… (5) rights to notice, protection, benefits, and inheritance.… (6) award of child custody and support payments in divorce proceedings.… (7) the right to spousal support.… (8) the right to enter into premarital agreements.… (9) the right to change of name.… (10) the right to file a nonsupport ac tion.… (11) post-divorce rights relating to supportand property division.… (12) the benefit of the spousal privilege and confidential marital communications.… (13) the benefit of the exemption of real property from attachment or execution.… and (14) the right to bring a wrongful death action.… For present purposes, it is not disputed that the applicant couples would be entitled to all of these marital rights and benefits, but for the fact that they are denied access to the state-conferred legal status of marriage.
[The law] on its face, discriminates based on sex against the applicant couples in the exercise of the civil right of marriage, thereby implicating the equal protection clause … of the Hawaii Constitution.
… [T]he extent of permissible state regulation of the right of access to the marital relationship is subject to constitutional limitations or constraints. [Here the court cited Loving v. Virginia (1967).] It has been held that a state may deny the right to marry only for compelling reasons. [In a footnote the Court gave such examples of "'compelling' reasons as consanguinity (to prevent incest), immature age (to protect the welfare of children), presence of venereal disease (to foster public health), and to prevent bigamy."]
The equal protection clauses of the United States and Hawaii Constitutions are not mirror images of one another. The fourteenth amendment to the United States Constitution somewhat concisely provides, in relevant part, that a state may not "deny to any person within its jurisdiction the equal protection of the laws." Hawaii's counterpart is more elaborate … provid[ing] in relevant part that "no person shall … be denied the equal protection of the laws, nor be denied the enjoyment of the person's civil rights or be discriminated against in the exercise thereof because of race, religion, sex, or ancestry." Thus, by its plain language, the Hawaii Constitution prohibits state-sanctioned discrimination against any person in the exercise of his or her civil rights on the basis of sex.
"The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free [people]" [quoting Loving v. Virginia]. So "fundamental" does the United States Supreme Court consider the institution of marriage that it has deemed marriage to be "one of the 'basic civil rights of [men and women].'"
… [O]n its face and (as Lewin admits) as applied, [the law] denies same-sex couples access to the marital status and its concomitant rights and benefits. It is the state's regulation of access to the status of married persons, on the basis of the applicants' sex, that gives rise to the question whether the applicant couples have been denied the equal protection of the laws in violation of … the Hawaii Constitution.
Relying primarily on four [state] decisions construing the law of other jurisdictions, Lewin contends that "the fact that homosexual (sic—actually, same-sex) partners cannot form a state-licensed marriage is not the product of impermissible discrimination" implicating equal protection considerations, but rather "a function of their biologic inability as a couple to satisfy the definition of the status to which they aspire." Put differently, Lewin proposes that "the right of persons of the same sex to marry one another does not exist because marriage, by definition and usage, means a special relationship between a man and a woman." We believe Lewin's argument to be circular and unpersuasive.
Significantly, the appellants' equal protection rights—federal or state—were not asserted in [the state cases cited by Lewin and thus the state courts were] relieved of the necessity of addressing and attempting to distinguish the decision of the United States Supreme Court in Loving. Lovinginvolved the appeal of a black woman and a caucasian man (the Lovings) who were married in the District of Columbia and thereafter returned to their home state of Virginia to establish their marital abode. The Lovings were duly indicted for and convicted of violating Virginia's miscegenation laws, which banned interracial marriages. In his sentencing decision, the trial judge stated, in substance, that Divine Providence had not intended that the marriage state extend to interracial unions:
Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.
In a landmark decision, the United States Supreme Court, through Chief Justice Warren, struck down the Virginia miscegenation laws on both equal protection and due process grounds.…
The facts in Lovingand the respective reasoning of the Virginia courts, on the one hand, and the United States Supreme Court, on the other, both discredit the reasoning … and unmask the tautological and circular nature of Lewin's argument that [the law] does not implicate … the Hawaii Constitution because same sex marriage is an innate impossibility. Analogously to Lewin's argument … the Virginia courts declared that interracial marriage simply could not exist because the Deity had deemed such a union intrinsically unnatural, and, in effect, because it had therefore never been the "custom" of the state to recognize mixed marriages, marriage "always" having been construed to presuppose a different configuration. 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.
As we have indicated, [Hawaii's marriage law] on its face and as applied, regulates access to the marital status and its concomitant rights and benefits on the basis of the applicants' sex. As such, [the law] establishes a sex-based classification.
[In a previous decision] we clearly and unequivocally established, for purposes of equal protection analysis under the Hawaii Constitution, that sex-based classifications are subject, as a per se matter, to some form of "heightened" scrutiny, be it "strict" or "intermediate," rather than mere "rational basis" analysis. Second, we assumed, arguendo, that such sex-based classifications were subject to "strict scrutiny." Third, we reaffirmed the longstanding principle that this court is free to accord greater protections to Hawaii's citizens under the state constitution than are recognized under the United States Constitution.…
Accordingly, we hold that sex is a "suspect category" for purposes of equal protection analysis under … the Hawaii Constitution and that [Hawaii's marriage law] … is presumed to be unconstitutional.…
Baird, Robert M., and Stuart E. Rosenbaum. Same-Sex Marriage: the Moral and Legal Debate. Amherst, N.Y.: Prometheus Books, 1997.
Curry, Hayden. A Legal Guide for Lesbian and Gay Couples. Berkeley, Calif.: Nolo Press, 1998.
Eskridge, William N. Equality Practice: Civil Unions and the Future of Gay Rights. New York: Routledge, 2002.
McKenna, George, and Stanley Feingold. Taking Sides: Clashing Views on Controversial Political Issues. Guilford, Conn.: Dushkin Pub. Group, 1997.
Merin, Yuval. Equality For Same-Sex Couples: the Legal Recognition of Gay Partnerships in Europe and the United States. Chicago: University of Chicago Press, 2002.
Strasser, Mark Philip. On Same-Sex Marriage, Civil Unions, and the Rule of Law: Constitutional Interpretation at the Crossroads. Westport, Conn.: Praeger, 2002.
Fajer, Marc A. "Toward Respectful Representation: Some Thoughts on Selling Same-Sex Marriage." Yale Law & Policy Review 15, no. 2, 599–627.