The Hawaii Supreme Court has become the first in the country to rule that states may not be able to prohibit gays from marrying. The decision gives broad protection under the state's constitution to homosexuals.
The ruling late Wednesday, which lawyers on both sides of the case describe as "groundbreaking," marked the second time in the past year that state courts have found protection for gays in state constitutions. Last September, the Kentucky Supreme Court safeguarded privacy rights for homosexuals when it struck down an anti-sodomy law.
Together, the decisions show how new legal avenues for homosexuals have opened, at the same time when gays are winning more social acceptance and political status. "We're thrilled, and we're planning our wedding," said Ninia Baehr, one of the parties to the Hawaii case, who has been trying for nearly three years to marry another woman.
The rulings also illustrate how activists on a range of issues often turn to state courts for vindication. Many state constitutions, as in Hawaii and Kentucky, offer broader protections for individual rights than the U.S. Constitution, and state high courts are the final arbiters of the rights in those documents.
Further, because of the dominance of conservatives on the federal bench, stemming from 12 years of Reagan-Bush appointments, some liberals believe they can make more headway in state courts.
Last month's decision by the Maryland Court of Appeals that prosecutors may not eliminate potential jurors at a trial because they are women was grounded in Maryland law. The U.S. Constitution, as so far interpreted by the Supreme Court, only bars lawyers from striking people from jury pools because of their race.
The ruling in Hawaii reinstated a lawsuit by three Honolulu-area homosexual couples, two female and one male, who were denied marriage licenses under a Hawaii statute that prohibits people to marry someone of the same sex. A lower court had dismissed their case, saying that no law supported their claim.
But the Hawaii Supreme Court ruled that under the state constitution's guarantee of equal protection of the laws, any sex-based classification is "suspect," putting it in a special category traditionally reserved for regulations that make distinctions based on race.
The state court's reasoning stemmed in part from U.S. Supreme Court justices' individual opinions in a 1973 case suggesting that language similar to that in Hawaii's constitution (but not adopted into the U.S. Constitution) significantly bars regulation based on sex.
The Hawaii constitution says 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." (The federal counterpart, in the 14th Amendment, says only that a state may not "deny to any person within its jurisdiction the equal protection of the laws.")
The opinion said that clause is breached by state law denying "same-sex couples access to the marital status and its concomitant rights and benefits." The Hawaii court also relied on a 1967 Supreme Court case that said marriage is a civil right, extending it to protect equally heterosexuals and homosexuals.
The opinion was written by Justice Steven H. Levinson and joined by Chief Justice Ronald T.Y. Moon. An appeals court judge who had been assigned to the panel, James S. Burns, concurred in the judgment, and another appeals judge on the case, Walter M. Heen, dissented.
The statute, Heen said, "is clearly designed to promote the legislative purpose of fostering and protecting the propagation of the human race through heterosexual marriage." He also said that because the statute applies equally to all unmarried persons, both male and female, there is no sex discrimination.
The couples, who began the case of Baehr v. Lewin in early 1991, said they wanted to marry for societal affirmation and for the financial and legal benefits that married couples enjoy.
"The most important part of {marriage} is the recognition," said Joseph Melilio, who has lived with Pat Lagon for 15 years and wanted to seal the relationship. "Marriage is an institution: People get married when they love each other and to show other people that they love each other."
Both Melilio and Lagon joined in the lawsuit against the state Department of Health, which regulates marriage licenses.
State officials defending the statute had argued the law was written to seal unions between men and women and was intended to "perpetuate the basic family unit."
The case now returns to a trial court for the state to try to prove that it has a "compelling" reason for the law. Deputy Hawaii Attorney General Sonia Faust said that while the test is difficult to meet, "the case is not over." She said she was looking at past rulings permitting regulation affecting fundamental rights that might help the state make its case.
In a separate part of the ruling Wednesday, the court adopted the state's argument in finding that neither the state constitution nor the federal one provides a right to privacy that would cover homosexual marriages.
A gay rights advocate at the New York-based American Civil Liberties Union said a state court has never before given credence to arguments that discrimination against homosexuals is a form of sex discrimination.
"It signals a shift in judicial attitudes toward gay rights," said William Rubenstein, director of the ACLU's lesbian and gay rights project and the author of a new casebook on gays and the law. He said when a man is allowed to marry a woman, but a woman is not allowed to marry a woman, that is a form of discrimination.
