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Twenty Years After Igniting National Freakout, Hawaii Revisits Gay Marriage

The marriage equality debate in the United States has finally come full circle, with Hawaii’s Democratic governor, Neil Abercrombie, on Monday calling a special session of the state Legislature for October 28 to take up a bill that would legalize same-sex marriage in the 50th State, more than 20 years after a Hawaii court decision set off a nationwide backlash against gay marriage.
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The marriage equality debate in the United States has finally come full circle, with Hawaii’s Democratic governor, Neil Abercrombie, on Monday calling a special session of the state Legislature for October 28 to take up a bill that would legalize same-sex marriage in the 50th State, more than 20 years after a Hawaii court decision set off a nationwide backlash against gay marriage.

In 1993, Hawaii’s Supreme Court became the first high court in the country to rule that a prohibition on same-sex marriage might violate the equal protection rights of gay couples. The decision triggered a panic among conservatives across the United States and provided the impetus for passage of the federal Defense of Marriage Act as well as legislation and ballot initiatives in other states as the religious right sought to stem the “scourge” of marriage equality.

The plaintiffs in Baehr v. Miike (originally Baehr v. Lewin) were three same-sex couples who applied to the Hawaii Department of Health for marriage licenses in December 1990. The couples met the requirements for marriage in Hawaii, except for being of the same sex. State Health Director John Lewin sought an opinion from the Hawaii Attorney General's office, which concluded that although the right to marry is a fundamental right under the U.S. Constitution, it applied only to opposite-sex couples. The state Department of Health denied the license applications, citing the Attorney General's opinion, and the couples sued.

A trial court dismissed the lawsuit, and the plaintiffs appealed. The Hawaii Supreme Court rejected the plaintiffs’ argument that the explicit right to privacy in Hawaii’s state Constitution supported a fundamental right to same-sex marriage. But the Court ruled that under the Constitution’s equal protection clause, denying marriage licenses to same-sex couples constituted discrimination based on sex. The appellate court remanded the case to the trial court to determine if the State of Hawaii could justify such discrimination by showing that it was narrowly tailored to meet a compelling state interest, a test known as “strict scrutiny” in constitutional jurisprudence.

Republicans in Congress, worried that the Full Faith and Credit Clause of the U.S. Constitution might require other states to recognize same-sex marriages from Hawaii, introduced the Defense of Marriage Act in May 1996. The bill provided that no U.S. state or territory would be required to recognize a same-sex marriage entered into in any other state and defined “marriage,” for purposes of federal law, as “a legal union between one man and one woman as husband and wife.” The U.S. Senate approved DOMA by a vote of 85–14 and the House by a vote of 342–67. Senate Democrats voted 32–14 for the bill (with Pryor of Arkansas absent), and House Democrats voted for it 118 to 65, with 15 not participating. All Republicans in both houses voted for the bill, except for Rep. Steve Gunderson of Wisconsin, then the only openly gay Republican in Congress. President Bill Clinton signed the measure into law on September 21, 1996.

Meanwhile, the Baehr case went to trial in Hawaii beginning on September 10, 1996, with the State arguing that the ban on same-sex marriage protected the health and welfare of children, fostered procreation within a marital setting, assured the recognition of Hawaii marriages in other jurisdictions, protected the state’s treasury from the cost of paying benefits to same-sex spouses and protected civil liberties. Foreshadowing the 2010 proceedings in Hollingsworth v. Perry, the federal court case challenging California’s Proposition 8 initiative, both the state and the plaintiffs presented testimony by experts in sociology, psychology and child development.

The trial judge ruled that the State of Hawaii had failed to show that its ban on same-sex marriage was tailored narrowly enough to avoid the unnecessary abridgement of the plaintiffs’ rights. He ordered Hawaii officials to issue marriage licenses to same-sex couples, but stayed implementation of his decision pending a further appeal by the state. With that appeal pending, anti-gay rights activists began a petition drive to put an initiative on the Hawaii ballot to change the state’s Constitution and give the Legislature the power to restrict marriage to opposite-sex couples. On November 3, 1998, Hawaii voters approved the amendment by a vote of 69.2%–28.6%, and the Legislature thereafter exercised its power to ban same-sex marriages.

Thus, after becoming the first state to recognize a right to same-sex marriage, Hawaii became the second state (after Alaska) to enact a constitutional amendment banning same-sex marriage. Between 1998 and 2012, an additional 30 states did the same.

The last 10 years have been marked by a sea change in public opinion nationwide on marriage equality. Since 2003, same-sex marriage has become legal in 13 states and the District of Columbia, either via legislation, ballot initiatives or state judicial decision (or in the case of California, as a result of the U.S. Supreme Court’s decision in Hollingsworth v. Perry).  Six states have legalized gay marriage just since May 2012, when Barack Obama became the first sitting U.S. president to declare his support for marriage equality. After consistently losing state referenda on the marriage issue for 20 years, gay rights activists won three such votes in November 2012: in Washington, Maine and Maryland.

Hawaii is a longtime Democratic Party stronghold, the most ethnically diverse state in the country and the birthplace of America’s first black president. (Hawaii was also the first state in modern times to recognize a woman’s right to an abortion). Hawaii law already prohibits discrimination on the basis of sexual orientation in employment and public accommodations.

But Hawaii has gone from being a leader in the movement for marriage equality to a laggard. The state finally approved a civil unions law in 2011 (after former Republican governor Linda Lingle vetoed a similar measure in 2009). But Hawaii progressives were frustrated by Democratic lawmakers’ inaction on gay marriage during the 2012 and 2013 legislative sessions.

The same-sex marriage debate in Hawaii has divided local religious leaders, with the Catholic Church and some evangelical groups opposing legalization and Episcopal clerics, among others, supporting the move. A key sticking point for legislation has been the demand by some churches that they not be required to host or conduct same-sex marriages.

Meanwhile, recent public polling in Hawaii has reflected the shift in opinion nationwide, with a consistent majority of state residents now in favor of marriage equality.

The change of heart is partly generational, something reflected in last year’s congressional elections. Democrat Tulsi Gabbard, 32, was elected to represent Hawaii’s Second District on Capitol Hill. Mike Gabbard, 65 and Tulsi’s father, is a state lawmaker who was at the forefront of the anti-gay marriage initiative that culminated in adoption of the constitutional amendment banning same-sex marriage in Hawaii in 1998. Congresswoman Gabbard, a member of the Hawaii Army National Guard and an Iraq War veteran, told voters last year that although she previously supported her father’s anti-LGBT positions, her military service in Middle East countries governed by oppressive regimes caused her to rethink her stance. She ran for Congress on a platform that included repeal of DOMA. Her father, despite switching from the Republican to Democratic Party, remains staunchly opposed to same-sex marriage.

The U.S. Supreme Court’s recent decision invalidating DOMA’s prohibition against federal recognition of same-sex marriages (the Hawaii’s Supreme Court’s Baehr v. Lewin decision was the first case cited in the U.S. Supreme Court’s opinion) has also given state lawmakers a push. In addition to securing federal tax benefits for gay couples in Hawaii, legalizing same-sex marriage would make benefits available to the same-sex spouses of gay federal workers in Hawaii. Given Hawaii’s large federal workforce, that would mean more dollars for Hawaii’s economy. Gay marriage could also prove a boon to tourism, the state’s largest economic driver.

While being the first state in the country to actually allow same-sex couples to marry would have given Hawaii bragging rights, being 14th (15th if you count D.C.) is still better than being last. Here's hoping Hawaii's leaders finally get it right this time.

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