Hawaii One Step Closer to Legalizing Gay Marriages

The following is from the ACLU NEWS published by the Northern California
branch of the American Civil Liberties Union:

    Hawaii Supreme Court One Step Closer to Legalizing Gay Marriages
    by Jean Field

    On May 5, the Hawaii Supreme Court took a major step toward
    establishing the rights of gays and lesbians to marry.  The 3 to
    2 decision in _Baehr v. Lewin_ directed the lower court to
    subject the state's marriage laws to a strict constitutional
    standard, meaning the state must attempt to prove it has a
    "compelling interest" in prohibiting same-sex marriages.

["Baehr" is Ninia Baehr, who wants to marry Genora Dancel.  It doesn't say who
"Lewin" is.]

    "This is a landmark.  There is a very good chance that within the
    next year lesbian and gay marriages will be legal in Hawaii,"
    said ACLU-NC staff attorney Matthew Coles, who co-wrote an amicus
    brief in the case along with attorneys from the ACLU of Hawaii
    and the national ACLU Lesbian and Gay Rights Project.  Legal
    recognition would bring legal rights including heirship, which
    would eliminate most contests over the estates of lesbian and gay
    men [sic - lesbian men and gay men?], spousal benefits from
    employers, lower insurance premiums, and federal disability and
    survivorship benefits.

    ... the majority based its decision on Hawaii's Equal Rights
    Amendment, which prohibits gender discrimination, stating that
    Hawaii's marriage law "denies same-sex couples access to the
    marital status and its concomitant rights and benefits, thus
    implicating the equal protection clause of [Hawaii's

    ... the court held that... laws discriminating on the basis of
    sex will be subject to the same strict scrutiny as those
    discriminating on the basis of race, ethnicity, or religion.  In
    order to be constitutional, such laws must serve a narrowly
    defined "compelling state interest" and don't unnecessarily
    infringe on individuals' rights.  The lower court had analyzed
    the law using the looser "rational basis" test, which requires
    only that the statute be rationally related to the furtherance of
    a "legitimate" state interest.

    The court analyzed the right to marriage using the principles set
    forth in _Loving v. Virginia_, the 1967 U.S. Supreme Court case
    that struck down Virginia's miscegenation laws and reversed the
    convictions of an interracial couple who had been sentenced to
    jail for their out-of-state marriage.  The Hawaii court wrote
    that, just as other cases have held that "same sex marriage is an
    innate impossibility" because marriage has always been considered
    a union between man and woman, the Virginia decision which was
    overturned in _Loving_ had held that "interracial marriages
    simply could not exist because the Deity had deemed such a union
    intrinsically unnatural."

    "We do not believe that trial judges are the ultimate authority
    on the subject of Divine Will," wrote the Hawaii majority...
    [Well said. :) ]

    "The comparison to the miscegenation laws raises potentially the
    most interesting question of all," said Coles.  "If, as we
    expect, the Hawaii court eventually says lesbians and gay men
    have the right to marry, will those marriages be legal in other
    states, or for federal law purposes?  It raises very complicated
    issues surrounding the constitutional doctrine of full faith and
    credit, which says states must honor the laws of other states
    except in narrowly defined circumstances [note: article IV of the
    constitution defines no exceptions to this], and implicates the
    entire history of marriage laws as well as the rights of gays and
Here is a box sub-article accompanying that last article:

    Will The Marriage Be Recognized Here?

    If Hawaii does legalize same-sex marriages, that doesn't
    automatically mean couples can take a trip to the Big Island, and
    come home to the rights and privileges of a state-sanctioned
    marriage on the mainland....

    California has a strong policy, set out in statute, in favor of
    recognizing foreign (out-of-state) marriages that could not have
    been legally performed in California.  Under this policy,
    California recognized interracial marriages when they were banned
    here [this ended in the 1950s], and it continues to recognize
    out-of-state marriages with individuals who would be under-age
    here.  The courts have even upheld marriages between Californians
    who left the state to evade its marriage laws.

    However, the federal Constitution permits states to refuse to
    recognize foreign marriages if the marriage runs against the
    state's public policy [I can't find anything in the constitution
    that this is based on].  Unlike laws in most states, California's
    ban on same-sex marriages is recent -- passed in the late 1970s
    -- and explicitly prohibits such unions.  [GGGAAAAAAAAAHHHH!]

    ..."If Hawaii legalizes lesbian and gay marriages, and we ask
    California to recognize them, we will have to choose our case
    carefully," said Coles.  "It's important to use a situation that
    would make denying the marriage unattractive and counter to
    another important state policy like community property."