“Whatever your view of same-sex marriage,” declared Andrew Sullivan in The New Republic, “in all likelihood, within a year, some same-sex couples will be legally married in America.” In the Washington Post, Jonathan Yardley echoed the point: “Same-sex marriage, however the majority may feel about it, is beginning to have the look of an idea whose time has come.”
The occasion for these comments was the announcement in Honolulu last December of a trial court decision in Baehr v. Miike (originally entitled Baehr v. Lewin). First launched by three same-sex couples in 1990, the case was the subject of a dramatic 1993 opinion by a divided Hawaii State Supreme Court, which ordered a full trial in a lower court. After three years of delay, that trial was finally held, and on December 3, 1996, Judge Kevin Chang ruled that the refusal of the State of Hawaii to grant marriage licenses to same-sex couples violated the Hawaii State Constitution, and that the state had failed to demonstrate a “compelling state interest” that could justify this “discrimination.” Judge Chang has delayed ordering the state to issue same-sex marriage licenses until the Supreme Court hears the state's appeal.
Of course, the issue of same-sex marriage is not settled in Hawaii. While convincing the Supreme Court to overturn the lower court is an uphill battle, the people of Hawaii have other options for resolving the issue that would simply bypass the court. Efforts are underway to amend the Hawaii Constitution, both through the legislature and by attempting to convene a constitutional convention.
Though Judge Chang's decision in the Baehr case makes same-sex marriage more likely to succeed in the Hawaii courts, it may also make it more likely to lose in the long run. The people of Hawaii have begun to realize that they cannot count on their courts to defend their own laws. Despite overwhelming public rejection, the state Supreme Court is poised to force the legal recognition of same-sex marriages, unless it is stopped by the citizens themselves. Sullivan is absolutely right, from the court's point of view, when he speaks of the arrival of same-sex marriage “whatever your view,” just as Yardley is right to dismiss “however the majority may feel about it.” And yet, as people realize that they have been excluded from their own law-making process, the momentum to pass an amendment grows steadily stronger.
Some have argued that the case in Hawaii is the result of an orchestrated legal campaign. Yet when Baehr began in 1990, the issue of same-sex marriage was nowhere to be found. The homosexual community had debated the desirability of same-sex marriage in the 1950s, and from the 1960s on, gay and lesbian litigators had launched repeated attempts to legalize same-sex marriage in a variety of state and federal courts. But all of these efforts had been unsuccessful. When the Supreme Court's 1986 decision in Bowers v. Hardwick upheld the right of the states to criminalize sodomy, national gay rights organizations dropped whatever little interest they had in the issue, and focused mostly at the state level on repealing sodomy laws and passing statutes affirming rights based on “sexual orientation.”
Between 1990 and 1995, however, seventy-five law-review articles on same-sex marriage appeared, seventy-two of them by pro-gay law students and scholars (sixty-nine supporting same-sex marriage, three attacking marriage altogether). National gay and lesbian rights organizations became major forces in local, state, and national politics. The Lambda Legal Defense and Education Fund, the National Lesbian and Gay Rights Project of the ACLU, the National Center for Lesbian Rights, and Gay and Lesbian Advocates and Defenders built themselves into major public-interest law firms, whose combined budgets, according to the Washington Blade, now exceed $6 million per year.
The Baehr case, however, was launched by local activists without support from national gay-rights organizations. When even the local ACLU turned down the case, the plaintiffs hired Dan Foley, a former local ACLU staff attorney. Because the state constitution and Supreme Court were known to be more liberal than their federal counterparts, Foley framed the case entirely as a claim under Hawaii law, to make it immune from transfer or appeal to the federal courts. Foley got the local ACLU to file a legal memorandum in the case. At the initial court hearing in the fall of 1991, the local ACLU lawyer was allowed to speak in open court on behalf of the plaintiffs, a highly unusual step. Even so, trial judge Robert Klein-who now sits on the Supreme Court-dismissed the case, holding that no valid legal claim had been made. It appeared that the case was over, and the national organizations had been right.
When Judge Klein dismissed the case, however, he chose to address many of the substantive issues that had been raised by the plaintiffs and the local ACLU. This opened the door for the plaintiffs to appeal, on the grounds that no formal evidence had been taken on the issues. At this point the Lambda Legal Defense and Education Fund and the national ACLU offered support. The plaintiffs appealed Judge Klein's verdict directly to the state Supreme Court, on the grounds that denial of same-sex marriage violated the Due Process and Equal Protection Clauses of the Hawaii Constitution. Lambda and the ACLU filed amicus briefs, while a local lawyer filed the only amicus brief in favor of the existing law.
The case came before an odd assortment of judges in the fall of 1992: Chief Justice Ronald Moon, Associate Justice Steven Levinson, Associate Justice Yoshimi Hayashi (about to retire from the Court), and two substitute judges from the Intermediate Court of Appeals, James Burns and Walter Heen. During the oral argument, the Deputy Attorney General appeared taken aback by the questions from the bench. Isn't it obvious, one judge asked, that male-female couples can go to the Health Department and get licenses, whereas same-sex couples cannot? Isn't that discrimination, pure and simple?
Between October 1992 and May of 1993, the “Gay Moment” arrived in American politics. Bill Clinton became President, the gay and lesbian community got their “place at the table,” and the “gays-in-the-military” debate began. During this same period, Associate Justice Levinson drafted the opinion for Baehr. The time was ripe, Levinson may have sensed, to strike a decisive blow for gay rights.
On May 5, 1993, Hawaii's Supreme Court announced its opinion that the marriage law was a form of “sex discrimination.” The opinion was signed by only Levinson and Moon, with a partial concurrence by Judge Burns. Judge Heen dissented. (Justice Hayashi had since retired, but stated that had he still been on the Supreme Court, he would have joined Heen's dissent.) Even the plaintiffs were astonished. The national gay rights groups scrambled to respond, realizing that while they had an astonishing victory, it would be a challenge to keep it. Lambda launched the Marriage Project, the Freedom to Marry Coalition was born, and nationally coordinated efforts began to get sympathetic media coverage.
But what did the two justices actually decide? The published decision began with something that supporters of same-sex marriage and popular reports of the decision rarely mention: Contrary to the plaintiffs' first line of reasoning, there is in fact no fundamental right to same-sex marriage under the state constitution's Due Process clause. This was clear, the justices said, because calling same-sex unions “marriages” would stretch tradition-based Due Process analysis beyond recognition. The legal concept of marriage could not be extended to include homosexual couples without fundamentally altering its accepted meaning-a step they declared themselves unwilling to take.
The plaintiffs had argued in their second line of reasoning that under the Equal Protection clause the court should treat gays and lesbians as a protected class, striking down existing marriage law as a form of discrimination based upon sexual orientation. Not surprisingly, the court ignored this argument: Not only is the category of “sexual orientation” missing from the state constitution, but proposals to add it had been roundly defeated as recently as a 1978 constitutional convention.
Had the justices left their analysis at this point, the Baehr case would have joined the other failed attempts to litigate same-sex marriage. But Justice Levinson, the author of the Supreme Court's decision, was apparently eager to find grounds for overturning the lower court's ruling. To achieve this he constructed an ingenious argument—one that even the plaintiffs had never suggested. Though “sexual orientation” is not a classification requiring special protection, “sex” certainly is, mentioned in both the original state constitution of 1950 and a state Equal Rights Amendment added in 1972. Existing marriage law, he argued, should be treated as a “sexual classification” for Equal Protection purposes, and the burden of proof for justifying this “sex discrimination” should be shifted from the plaintiffs to the state. Since any discriminations that involve the classifications specifically mentioned in the Equal Protection clause require the courts to examine them with strictest scrutiny, the existing marriage law can be justified only by the demonstration of a compelling state interest (which is usually defined as empirically demonstrable harm of an extremely large and damaging character).
There is a specious plausibility to the decision, deriving from our typical association of sex with marriage: men and women marry, and marriage law concerns their relations precisely as men and women. And yet, the irony is that from this association the decision builds in three steps an argument for removing sex from the concept of marriage.
First, Levinson argues that marriage is a “state-created legal partnership” and that marriage has no meaning or nature outside the law. (The case law cited to substantiate this claim is meager and unpersuasive.) Second, he argues that because marriage involves a man and a woman, the marriage law that the state—and the state alone—has created is a law that “classifies by sex.” (Here he ignores the fact that the sexual classifications traditionally scrutinized by courts involve only laws that treat members of one sex less favorably than members of the other.) Third and finally, Levinson argues that same-sex couples are discriminated against because they cannot obtain a marriage license, while male-female couples can. Thus we have at last uncovered the sexual discrimination in a marriage law that the state created for its own purposes and must now justify under the strictest scrutiny.
Simply as a piece of logical reasoning, the argument appears to make a glaring and unexplained switch from speaking of individuals to speaking of couples. But here the effect of speaking of marriage as a legal partnership comes into play: Levinson converts marriage into a matter of individual choice that allows him to speak of a man being “discriminated” against because he cannot choose to marry another man. When the state moved formally for a reconsideration of the decision, newly appointed Justice Paula Nakayama joined without comment Levinson and Moon in mandating strict scrutiny. The court then remanded the case to the trial court, setting into motion three years of constant delays by the state.
The attorneys for the state were in an extremely difficult position, and had roughly three options for approaching the trial remanded to Judge Chang's courtroom.
First, the state could challenge the premises of the Supreme Court's 1993 opinion head-on. This would involve arguing that the existing definition of marriage, adopted by the citizens of Hawaii, is entirely compatible with Due Process and Equal Protection, and that the plaintiffs were simply positing a different view of marriage under the guise of a “constitutional” challenge. This the plaintiffs were free to do, the state could have argued, but in the legislature-like all other citizens. This approach would have had the virtue of simplicity. But it would have required the state to defend the people's moral judgment, which it seemed reluctant to do.
Or the state could formally accept the “compelling state interest” test mandated by the Supreme Court, yet offer Judge Chang a way of defining the test to make it easier to uphold the law. It could show that “compelling state interests” also include those based on the moral judgment of the people, and then demonstrate that all “sexual classifications” are not equal. This could easily be done by drawing upon statutes, case law, and constitutional tradition from Hawaii itself.
Finally, the state had the option of accepting not only the test imposed upon it by the Supreme Court, but also accepting the assumptions behind that test: (1) marriage is a state-created entitlement, (2) individuals have an equal right to state benefits, and (3) access to those benefits can only be limited if concrete harm can be shown by properly credentialed social scientists. It could screen out all overt moral judgments and rely instead upon its scientific experts.
For a variety of reasons, the state chose to take the third route in the case it presented, attempting to show that empirically demonstrable harm would be done to children by legalizing same-sex marriage.
Almost from the beginning it was clear that the state was hesitant to defend its own law seriously. Governor Benjamin Cayetano, elected in the fall of 1994, had even at one point proposed removing the term “marriage” from the state's legal code, until gay and lesbian activists explained to him that this would sabotage their efforts. During the campaign, his running-mate, Lieutenant Governor Mazie Hirono, openly supported same-sex marriage. The Deputy Attorney General originally assigned to the case, Steven Michaels, was notoriously unenthusiastic about defending the law. He resigned and moved to the mainland the summer before the trial, leaving Deputy Attorney General Rick Eichor, a well-respected lawyer but one whose specialty is water rights, in charge of the case. The Attorney General appointed by the Governor, Margery Bronster, is generally thought to have political aspirations of her own and seemed unlikely to risk alienating the outspoken and influential supporters of same-sex marriage in local Democratic circles. She appeared in court on the first day, but otherwise left the conduct of the trial to her deputies.
To watch the trial, as I did, was a distressing experience, despite the well-intentioned efforts of Deputy Attorney General Eichor. Both the state and the plaintiffs produced their dueling social-scientific experts, but virtually all the passion was on one side-worsened by the fact that Eichor, a low-key lawyer originally from Kansas, gambled that a laid-back approach would win points with the judge. A state hesitant to make an openly moral argument found itself pitted against lawyers, including Lambda's top national litigator on marriage issues, ready to press their claims with all the passionate moral intensity of a children's crusade.
Of course, given the state Supreme Court's demand that the marriage law be judged under the strictest scrutiny, with a defense for the law succeeding only if it demonstrated a compelling state interest, the plaintiffs didn't have to work all that hard. All their lawyers had to do was to poke holes in the state's social-scientific arguments, and invoke the Supreme Court's test. “The trial is rigged against marriage,” declared the Hawaii Catholic Conference. “The Hawaii Supreme Court has already found marriage guilty of sexual discrimination without any benefit of trial. The trial court's only job is to decide whether marriage should be granted a pardon. The state can only plead mercy.”
Yet even given the conditions under which the state's lawyers had to work, and the weak “sociological” line of defense taken by the Deputy Attorney General, the trial went poorly. The attempt to talk solely about children backfired, forcing the state's lawyers to suggest that gays and lesbians were inadequate parents, even while the state's own social scientists were declaring otherwise on the witness stand. Consciously avoiding gay-bashing is one thing, but in this case, the state turned out to be its own worst enemy.
While eight groups filed amicus briefs in favor of same-sex marriage, five groups filed briefs in support of the existing marriage law and Judge Chang had available all the legal arguments the state had been unwilling or unable to make. A month and a half later, however, on December 3, the judge announced his decision in favor of same-sex marriage, as many had predicted he would. Ignoring the amicus briefs that bolstered the state's case, he cast himself in the role of neutral fact-finder—simply repeating the legal test given to him by the Hawaii Supreme Court; plodding through the witnesses' testimony, choosing what he liked and disparaging what he disliked; and castigating the state for having failed to provide him with sufficient evidence to uphold the law. He had no choice, he declared, except to declare the law unconstitutional and to order the state to issue marriage licenses to same-sex couples. He then delayed his order long enough for the state to appeal its decision to the Supreme Court, which will receive briefs in late spring and take up the appeal during the summer.
Those who support the traditional definition of marriage, both in Hawaii and on the mainland, are racing to head off a potentially disastrous decision by the Hawaii Supreme Court. In Hawaii, polls have consistently shown that over 70 percent of the citizens oppose the legalization of same-sex marriage, with the number creeping upward as debate has intensified. Those most likely to favor same-sex marriage are whites and recent arrivals to the islands, while those most likely to oppose it are Filipinos and native Hawaiians, with Japanese-Americans falling between. This local opposition has come as a surprise to same-sex marriage advocates on the mainland, who had expected Hawaii's pluralism and tradition of tolerance to work to their benefit.
What does lend itself to same-sex marriage, on the other hand, is the peculiar nature of party dynamics in state politics. Hawaii is virtually a one-party state, ruled by a pervasively liberal Democratic elite since 1954. Within the party, activists have the upper hand and are strongly supportive of the campaign for same-sex marriage. The newly elected Democratic Party Chair defeated a candidate who opposed legalizing same-sex marriage, and a leading gay activist was recently elected one of three Party Vice-Chairs. Hawaii's entire congressional delegation voted against the federal Defense of Marriage Act in September 1996 and was the only state delegation to receive a 100 percent rating from the gay and lesbian Human Rights Campaign. The state Civil Rights Commission openly supports same-sex marriage, as do leaders of the major labor unions and the editorial boards of both major daily newspapers.
The issue of same-sex marriage, however, has widened the gap between this dominant political liberalism and the general social attitudes of Hawaii's citizens. Led by the Roman Catholic, Latter-day Saint, and evangelical Protestant communities, many citizens have become mobilized for the first time in order to reaffirm the traditional definition of marriage—pushing through the state legislature in 1994 a law denouncing the Supreme Court's 1993 decision and reaffirming marriage as the union of one man and one woman. In response, however, first the legislature and then Governor Cayetano appointed (and stacked) two successive commissions to examine the issue, and in 1995 the second issued a lengthy majority report favoring same-sex marriage.
Around the same time, the supporters of traditional marriage solidified their organizational efforts into two major groups: Hawaii's Future Today, which is predominantly Catholics and Mormons, and the Alliance for Traditional Marriage, which is primarily evangelicals. Given that self-identified Christians make up less than half of Hawaii's population, while nearly three-quarters of state residents oppose same-sex marriage, it is clear that support for traditional marriage extends far beyond the Christian communities Andrew Sullivan derided as “fundamentalist.” In 1996, largely as a result of the efforts of these groups, the state House of Representatives, by an over two-thirds margin, passed a constitutional amendment meant to preempt the Supreme Court's anticipated decision. But in the state Senate, where support for same-sex marriage was strongest, a domestic partnership bill passed instead (although it was stopped by the House), and a constitutional amendment failed by a 14-11 vote.
In the 1996 elections, the chairman of the Senate Judiciary Committee, who had led the fight against the amendment, was trounced by a newcomer who campaigned in support of traditional marriage. Other supporters of same-sex marriage also suffered defeat. Even the liberal Senate President, confronted by a political newcomer supportive of marriage laws, won only narrowly. But win he did, and he has appointed two Senators sympathetic to same-sex marriage as cochairs of the Judiciary Committee.
On January 24, early in the 1997 legislative session, Hawaii's Future Today and the Alliance for Traditional Marriage sponsored a rally in support of the existing marriage law. Over five thousand people pleaded with the legislature to pass an amendment. The Roman Catholic Bishop of Honolulu, Francis X. DiLorenzo, had a pastoral letter read from every pulpit in Hawaii in January: “Some of our state legislators, especially in the Senate, would rather not deal with the issue. They believe that either we don't care or that we are not enlightened enough. We, the citizens of Hawaii, must therefore make it absolutely clear to them that we want true marriage protected and supported.” He concluded, “Unless we demonstrate courage and power now, another shameful page of Hawaii history may very well be written. I, for one, cannot remain silent.”
That same week in January, the Hawaii House passed two bills: a constitutional amendment that would overrule Baehr and a “reciprocal beneficiaries” bill offering limited benefits for unmarried couples. Both passed by over a two-thirds margin. By early February, the Senate swung into action. It passed its own two bills: a constitutional amendment which purports to protect marriage, but which does not overrule the Supreme Court's interpretation of “sex,” and an amended “reciprocal beneficiaries” bill dramatically expanding benefits for unmarried couples. As of mid-February, both bills were floating in conference committees.
The other option open to supporters of traditional marriage law is a constitutional convention. On the ballot in November was the question, presented to the voters every ten years, of whether to convene such a convention. The local political powers campaigned vigorously against it: even the League of Women Voters joined with the ACLU to argue that such issues as marriage were “too emotional” to be dealt with by the people. Their advice was rejected by a narrow margin of slightly over three thousand votes. The Hawaii State AFL-CIO has sued to block the result, however, claiming that the forty-five thousand blank ballots cast in the election should be counted as “No” votes. They have filed their suit directly with the same Supreme Court whose decision on same-sex marriage the convention would be likely to attempt to overturn. As of mid-February, there has been no decision by the court.
But even if the convention manages to meet, it will convene in 1998 at the earliest, and no amendment could go onto the ballot before the November 1998 general election. Meanwhile, the Baehr appeal is underway. Unless the Supreme Court withholds its opinion until after a convention, or the legislature—pressured by traditional-marriage advocates supported by help from the mainland—manages to pass an amendment, Hawaii is likely to have some same-sex couples legally married (probably irreversibly) before a constitutional convention can take action.
If that happens, same-sex couples from the mainland can fly to Hawaii to get married. When they return to their home states, some will file suits seeking to force recognition of their “marriages.” It is these couples who offer the lever for Lambda's lawyers to move the issue into the federal courts, arguing that every state must recognize the marriages performed in Hawaii.
Responding to this threat, the legislatures of other states and the U.S. Congress have begun to move. Traditionally, the legal definition of marriage is up to each individual state, and if one state rejects a particular marriage as against its public policy, it need not recognize it when performed by another state. How this tradition will be applied if same-sex marriage is legalized is unclear. By the end of 1996, seventeen states had passed legislation stating that it was their public policy that marriage consists only of the union of one man and one woman. Colorado also passed a bill, but Governor Roy Romer-now the Chair of the Democratic National Committee-vetoed it. By mid-February 1997, twenty-six more states had begun tackling the question. Meanwhile, in 1996 Congress passed the Defense of Marriage Act, which established the traditional definition of marriage as the standard for federal law, and which permitted states, under the Full Faith and Credit Clause of the U.S. Constitution, to make up their own minds whether or not to recognize same-sex “marriages.” President Clinton then signed the Act while in flight early one morning during the presidential campaign-”under the cover of darkness,” according to his gay and lesbian supporters
Lambda, the ACLU, and their allies have vowed to attack every one of these laws in court. But according to the January 1997 Wirthlin Report, 67 percent of the American people do not believe marriage should be redefined, and the battle over the legal definition of marriage may yet become the occasion for a vigorous outbreak of democratic self-government. As the President recently reminded us, “Government is not the problem, and government is not the solution. We the American people, we are the solution.” The people may carry the fight beyond the courts, amending constitutions as they go, for the majority of Americans are not anti-gay, but pro-marriage. Those who try to stop them have set their faces against both tolerance and pluralism.
David Orgon Coolidge directs the Marriage Law Project at the Ethics and Public Policy Center in Washington, D.C. He graduated from the Georgetown University Law Center, and is the author of Same-Sex Marriage? (Crossroads Monograph Series on Faith and Public Policy, 1996).