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Full Circle

November 13, 2013

The American legal battle over same-sex marriage began in Hawaii. Today, Hawaii’s legislature sent a bill to legalize same-sex marriage to Governor Neil Abercrombie for signature, becoming the 16th state to adopt marriage equality.

Twenty-three years ago next month, three same-sex couples went to the Hawaii Department of Health and applied for marriage licenses. The Department asked the Hawaii Attorney General for legal advice, and on December 27, the Attorney General advised that the doors of the institution of marriage did not open wide enough to admit same-sex couples.

The three couples went to court. Lambda Legal Defense, then and now one of the premier gay rights legal advocates in the country, declined to take the case – Lambda didn’t think litigating the right to marriage was strategically wise, and wasn’t convinced in any event that marriage rights were all that big a deal.

The trial court dismissed the couples’ lawsuit on October 1, 1991, and they appealed to the Hawaii Supreme Court. In May 1993, that court concluded that the exclusion of same-sex couples from marriage required proof that the exclusion served a compelling governmental interest – the highest bar in constitutional jurisprudence. In other words, the court held that the correct standard of judicial review for the case was not what is known to lawyers as “mere rationality,” but “strict scrutiny.” The state Supreme Court sent the case back to the trial court.

Haunted by the specter of homosexual wedlock, the Hawaii legislature passed a bill explicitly limiting legal marriage to opposite-sex couples. The legislature also set up a commission to study same-sex marriage, and the court case was held in abeyance while the commission studied.

In December 1995, the commission recommended passage of marriage equality legislation. The legislature was not amused, and the court case resumed. Trial began on September 10, 1996.

On September 21, 1996, President Bill Clinton signed the Defense of Marriage Act, which pre-emptively prohibited the federal government from recognizing any state-sanctioned marriage between members of the same sex, and permitted states to refuse to recognize such marriages.

Applying the Hawaii Supreme Court’s “strict scrutiny” mandate, the trial court found that disallowing same-sex marriages was unconstitutional, and the state appealed. While the appeal was pending, Hawaii voters in 1998 approved the first of almost three dozen state referendums limiting marriage to opposite-sex couples. On December 9, 1999, the Hawaii Supreme Court ruled that the referendum ended the nine-year case against the three same-sex couples who had filed it.

DOMA lasted not quite 17 years – last June, the U.S. Supreme Court rejected the section that prohibited the federal government from recognizing state-sanctioned same-sex marriages. Marriage inequality in Hawaii lasted a little longer – Governor Abercrombie is committed to sign the bill, which will take effect on December 2. On that day, 115 million Americans will live in marriage equality jurisdictions.

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