Ninia Baehr had an earache and wanted to know if her girlfriend’s health insurance would cover her medical expenses. She called William Woods, a longtime gay rights activist in Hawai’i.
No, he said, there was no coverage. They weren’t married. And they couldn’t get married. It was 1990.
Woods convinced Baehr and her partner, Genora Dancel, to join him in pushing the limits of the law and seeking the legality of same-sex marriage in Hawai’i.
One week later, Baehr and Dancel, along with two other same-sex couples, applied for their marriage licenses in downtown Honolulu. The clerk told them she could not approve them because it was so out of the ordinary. She said she had to talk to her boss. Her boss then said he needed to get the state’s attorney general.
The Department of Health ultimately denied their applications. Woods brought the couple to Daniel Foley, a Honolulu lawyer known for bringing civil rights cases.
They sued the state and argued that the denial of their application to wed was a denial of their constitutional rights under the Hawai’i Constitution. The trial judge dismissed the case and Foley took their cases up to the Hawai’i Supreme Court.
In 1993, three of the five justices ruled for the same-sex couples. Under the Hawai’i Constitution, the state cannot readily discriminate against someone based on their sex. To justify that, there needs to be a compelling state interest.
The opinion made Hawai’i the first and only state in the country that gave same-sex couples a path toward lawful marriage. The Hawai’i Supreme Court insulated itself from federal intervention. This was based on its interpretation of the state constitution. The Supreme Court in Washington had no say in this.
The justices sent it back to the trial court to see if the state could justify its discrimination against the couples. But before trial got underway, the backlash had begun.
Churches and other organizations tried to stop it. The Church of Jesus Christ of Latter-Day Saints tried to intervene and participate in the trial. When the judge denied their request, they took that up to the Hawai’i Supreme Court.
The court rejected their claims — even their religious one. Simply put, the court stated “if Hawai’i permits same-sex marriage, and the Applicants’ religious beliefs forbade them from solemnizing marriages of same-sex couples, then the state could not require them to do so.”
In other words, if the churches didn’t want to officiate same-sex marriages, the state wouldn’t force them to. But that had nothing to do with the couples’ right to marry.
The Hawai’i Supreme Court sent the case back down.
By now, the rest of the country started to notice what was happening. Conservative forces pushed through Congress the Defense of Marriage Act. The law limited marriage to opposite-sex couples in federal statutes. It also ensured that even if same-sex marriage was the law of the land in Hawai’i, other states would not have to recognize it.
Conservatives went to work in Hawai’i too. Before the case was finalized, the Legislature amended the family law statutes in 1994 to specifically limit marriage to opposite sexes.
But then the trial court entered judgment for the couples and ruled that sex-based classifications of marriage were unconstitutional in Hawai’i. Conservative forces responded by proposing an amendment to the Hawai’i Constitution.
In 1997, the constitution was amended to empower the Legislature to reserve the definition of marriage to opposite-sex couples. But strangely, the Legislature did not act on that.
Not until 2013, when the Legislature went the other way and codified the right to marry people of the same sex. Republican Bob McDermott led a lawsuit of his own calling foul, but that was thrown out by the Hawai’i Supreme Court in 2015.
Again, Hawai’i led the way. A month later, the Supreme Court of the United States came around to holding that the federal constitution recognized same-sex marriage in its landmark ruling of Obergefell v. Hodges and struck down portions of the Defense of Marriage Act.
Three decades after the Hawai’i Supreme Court’s landmark decision, trouble may be on the horizon. People across the country have started weaponizing their faith to undermine the rights of the LGBTQ+ community.
Kim Davis, the former county clerk in Kentucky, justified her refusal to grant marriage licenses to same-sex couples on the grounds that her faith compelled her to. A baker in Colorado used his religion to justify the refusal to bake a wedding cake.
And the Supreme Court’s recent opinion abolishing the right to terminate a pregnancy ominously suggests that same-sex marriage — at least on the national scale — may not be safe. Then again, if history is any guide, the Hawai’i Supreme Court has been ready to take the lead.
* Ben Lowenthal is a trial and appellate lawyer, currently with the Office of the Public Defender, who grew up on Maui. His email is 808stateofaloha@gmail.com.
Today's breaking news and more in your inbox
ncG1vNJzZmivp6x7rq3UoqWer6NjsLC5jqinoqaZpLtwr86lrKamo2R%2FcX6SaGdrZ6Sdsm6%2F05qrnmWfm3qiuM6hmGZpZmx8