Hawaii’s Legislature gave final approval to a historic marriage equality bill this week, sending it to Governor Neil Abercrombie’s desk to be signed.
While every same-sex marriage victory matters, here are four reasons why the Hawaii win is extra special.
1. Hawaii is Where the Gay Marriage Ban Battle All Began
In 1990, three same-sex couples applied for marriage licenses in Hawaii. The couples met all the criteria for marriage as defined by Hawaii, except for the fact that they were homosexual.
The Hawaii Attorney General’s office concluded on December 27 of that year that, yes, the right to marry is a fundamental one under the United States Constitution, but only for opposite sex couples. As such, the three same-sex couples were denied the right to marry.
The couples then filed a lawsuit Baehr v. Lewin (which would become Baker v. Mike) arguing that the denial of marriage rights violated the state’s guarantee of privacy. A trial court dismissed the suit but the couples appealed to the Supreme Court of Hawaii. The Court rejected the privacy argument but, in a decision on which history would hinge, said that under the state’s equal protection clause denying a same-sex marriage license required a high level of justification. In 1993, the Supreme Court of Hawaii sent the case back to the trial courts with the instruction that the state would have to demonstrate how denying marriage licenses to same-sex couples “furthers compelling state interests and is narrowly drawn to avoid unnecessary abridgments of constitutional rights.”
At once, the issue of same-sex marriage was brought to public attention and while the state suit rumbled on (only to be lost in 1999) a national dialog took over. In the early 90s, there seemed a real chance that the Hawaii courts could eventually find cause to legalize same-sex marriage, and the Supreme Court of Hawaii’s decision directly fed into United States Congress passing by almost a unanimous bipartisan vote the 1996 federal Defense of Marriage Act which was signed by then President Bill Clinton. It also inspired state level statutes and constitutional amendments attempting to ward off what was perceived as an impending threat.
Now, law nerds will know that the marriage equality fight actually predates the 1990s Hawaii court battle that eventually inspired the federal Defense of Marriage Act. Indeed, the Minnesota case Baker v. Nelson was one of the first legal landmarks that would for many years shape gay rights and marriage equality questions, and non too favorably.
Yet, in terms of America’s wider battle on the marriage equality front it will likely always be Hawaii that will be remembered as the state where the marriage equality fight first emerged as a national issue, and for that reason the Hawaii victory is especially sweet.
2. Just a Few Years Ago, Hawaii Couldn’t Even Legalize Civil Unions
For a number of years Hawaii’s gay community attempted to pass civil unions, often meeting with simply too much resistance among religious conservatives in both the Republican and Democratic Party. Yet in 2010 lawmakers managed to get behind a civil unions bill and it seemed like an historic victory was close at hand. That was until Hawaii’s Republican Governor, Linda Lingle, vetoed the bill because, she said, it was too much like same-sex marriage — rather missing the obvious point that of course it was.
It wasn’t until a year later, with Governor Neil Abercrombie now at the helm, that the civil unions bill was able to finally get the signature it deserved.
3. Governor Abercrombie Champions Hawaii’s Gay Marriage Effort
While of course the marriage equality effort cannot be attributed to just one person, and we cannot forget all the work that went into marriage equality prior to this month’s victory, special mention really should go to Governor Neil Abercrombie who has championed the same-sex marriage bill and steered it toward victory.
When in court battles his office was called on to defend the state’s same-sex marriage ban, Abercrombie said he would not do so because the ban was unconstitutional. He also worked with the state’s attorney general in exploring the fact that Hawaii’s ban on gay marriage actually gives the Legislature the power to define marriage as it sees fit, therefore allowing the marriage equality effort to proceed. Then, Abercrombie worked with religious conservatives in the state Legislature to compose a bill with broad (and some still say too broad) religious exemptions which might secure bipartisan support for the legislation. When it appeared that time had run out on the bill, Governor Abercrombie called a special legislative session.
The effort succeeded due, in part, to the governor’s strong leadership on this issue, and for that he should be thanked.
4. Hawaii’s Gay Marriage Bill Faced Unprecedented Opposition
After the Hawaii Senate passed the marriage equality bill, early November saw unprecedented numbers of people — 5,000, by some estimates — turning out to give testimony on the bill. While the exact demographics of that group remain unclear, large numbers of religious conservatives organized so that they and their fellow churchgoers could turn up to give testimony against the bill.
In addition the Church of Latter Day Saints, which had pledged to keep out of the gay marriage battle after the staunch criticism it faced regarding California’s Proposition 8, did in fact involve itself in Hawaii. While it’s unclear whether the church pumped much money into the effort, there are plenty of reports of the Church using its congregations to organize against the marriage equality bill.
If that wasn’t enough, State Rep. Bob McDermott filed a lawsuit attempting to stop the effort in its tracks, saying that the state’s gay marriage ban precludes lawmakers from legalizing same-sex marriage. His petition for an injunction against the law has been thrown out, but the court did give permission to McDermott to file a suit after the law has passed, meaning that even in the months to come this challenge may still have a bite even after couples start marrying.
Nevertheless, with Governor Abercrombie set to sign the bill on Wednesday, November 13, so that same-sex marriages can begin on December 2 of this year, Hawaii is set to join 14 other states, the District of Columbia, and Illinois, where a marriage equality bill is waiting to be signed, in giving its same-sex couples equal treatment under the law.
Our congratulations to Hawaii!
Photo Credit: Wikimedia Commons