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Hawaii About To Legalize Same-Sex Marriage: What A Difference 20 Years Makes

Hawaii Same-Sex Marriage

The state where, twenty years ago, the battle for marriage equality can be said to have truly begun, is only a few days away from becoming the 16th state to legalize same-sex marriage:

HONOLULU — When, as most everyone expects, Gov. Neil Abercrombie signs into law same-sex marriage here in the coming days, it may almost seem like a routine event. Hawaii is poised to be among 16 states to approve gay marriage, along with Illinois and shortly after Minnesota, New Jersey and Rhode Island.

But the step in Hawaii has special resonance because the contemporary battle over same-sex marriage was born here two decades ago. Such marriages existed nowhere when Ninia Baehr and Genora Dancel, along with two other couples, filed what seemed like an utterly quixotic lawsuit seeking a marriage license. To near universal shock, Hawaii’s Supreme Court granted them a victory in 1993, ruling that a refusal to allow gay and lesbian couples to marry was discriminatory and illegal.

It was the first judicial expression of an idea that soon caught fire across the country and the world.

The ruling prompted a national backlash, with Congress barring federal recognition of same-sex marriage and dozens of states amending their constitutions to define marriage as between a man and a woman, and it was even overruled by Hawaii’s voters. But it also opened a huge new front for the gay rights movement, laying the groundwork for scores of legal and political battles ever since.

So when it became clear this week in a raucous special session of the State Legislature that same-sex marriage would finally come to Hawaii, it was the closing of a circle.

“I’ve got what we Hawaiians call chicken skin — goose bumps,” said Daniel R. Foley, now a state judge. As a private lawyer in Honolulu in 1990, he took on the case of same-sex couples seeking marriage licenses after national rights groups had declined it as far-fetched.

On Friday, hundreds of gleeful advocates of same-sex marriage waved rainbow flags at the Capitol while hundreds of opponents shouted “Let the people decide” and sang “God Bless America.” Friday night, after a day of emotional debate, the House of Representatives passed the bill to expand marriage rights, making its final adoption next week a near certainty as it heads to the Senate before being signed by the governor.

The 1993 Hawaii ruling spurred advocacy groups to make marriage equality a prime goal. It energized campaigns that would bring the country’s first civil unions in Vermont in 2000 and the country’s first same-sex marriage vows in Massachusetts only nine years ago.

“The case in Hawaii launched the global movement for the right to marry,” said Evan Wolfson, president of Freedom to Marry, based in New York, and a longtime strategist on the issue who became co-counsel with Mr. Foley in the follow-up litigation.

Mary L. Bonauto, another legal advocate for same-sex marriage, said that “Hawaii really encouraged people on the marriage issue; it showed that a court can get it.”

Today, more than 30 lawsuits in at least 20 states are testing marriage restrictions in what Ms. Bonauto, a project director of Gay and Lesbian Advocates and Defenders, in Boston, called an “explosion in litigation.” They include challenges to state amendments barring same-sex marriage in Nevada and Virginia, demands that Texas grant divorces to same-sex couples married elsewhere and a suit to be decided soon in New Mexico arguing that same-sex marriages are permitted by state law.

For Steven H. Levinson, the State Supreme Court justice who wrote the 1993 opinion in Baehr v. Lewin, it is a moment of reckoning. He looks back on his failure to grasp the forces that were unleashed.

The few previous suits pushing for same-sex marriage in other states “had been laughed out of court,” Mr. Levinson recalled. “I soon realized that this opinion was going to be major.”

“But I was naïve about how the Baehr decision would be received,” he said between meetings this week at the State Capitol, where in retirement he has helped campaign for the long-elusive legislative victory.

And the reaction was indeed quick and severe. Withing three years after the Hawaii Supreme Court decision, Congress overwhelmingly passed, and President Clinton signed into law, which both defined marriage as only being between a man and a woman for purposes of Federal Law and permitted states to refuse to recognize a same-sex marriage that may be considered legal in a sister state. Two years after that, voters in Hawaii approved a Constitutional Amendment that gave the state legislature the authority to ban same-sex marriage notwithstanding the decision by the State Supreme Court. Then, in rapid succession, states began passing bans on same-sex marriage either via legislation or Constitutional Amendment, in each case by overwhelming margins that reflected the fact public opinion largely disapproved of same-sex marriage. In 2004, the numbers of states that had such referenda on their ballots in the November election led many to conclude that they attracted a more conservative electorate to the polls that helped re-elect George W. Bush, especially in states like Ohio. By the time North Carolina approved its own Constitutional ban on same-sex marriage in 2012, 36 states had passed bans on marriage equality. It wasn’t apparent at the time, but that would turn out to be the high water mark of the opposition to marriage equality.

Just ten years after the decision by Hawaii’s highest Court, the Supreme Judicial Court of Massachusetts issued a ruling legalizing same-sex marriage, thus making that state the first in which gays and lesbians could legally marry. Slowly but surely, other states began to follow. In 2008, the Supreme Courts of California and Connecticut legalized same-sex marriage. In California, this resulted in push back in the form of Proposition 8, a referendum that overturned the state Supreme Court’s ruling but which would be immediately challenged in Court and, eventually, make its way to the United States Supreme Court. The Connecticut decision stood, however, and New England soon became the center of the movement to bring about marriage equality. Vermont became the first state to legalize same-sex marriage via legislation in 2009, and it wasn’t long before Maine and New Hampshire followed in their neighbors footsteps. Elsewhere in the country, the Iowa Supreme Court issued its own decision in 2009 legalizing same-sex marriage, and the government of the District of Columbia did so in later in that year. At the same time, this was going on, many states around the country began bowing to the inevitable by creating civil unions that essentially granted gays and lesbians most if not all of the same legal rights as a married couple.

It wasn’t until 2012, though, that the real push back in favor of marriage equality began. In quick succession, same sex-marriage was legalized in three states on Election Day that year, and just  months later in the early part of this year, three more states accomplished the same thing via legislation. Then, of course, we had the Supreme Court’s twin decisions on DOMA and Proposition 8 this past June, the Court decision in New Jersey and Governor Christie’s decision to drop what would have ultimately been a doomed appeal and, just a few days ago, the final legislative approval of a bill legalizing same-sex marriage in Illinois.

Now, after two decades, the battle has come full circle back where it all started in Hawaii. This time, though, the political and social climate is far different than it was 20 years ago. As has been remarked here at OTB several times in recent years, it’s perhaps the most significant and rapid change in public attitudes on such a far reaching social issue that we’ve ever seen in the United States and it shows absolutely no sign of being reversed. Of course, as I remarked earlier this week, the battle is going to become a longer slog after this as attention will likely shift to Court battles that, by their very nature, are going to take time. Nonetheless, the direction the nation is moving on this issue is clear and, eventually, I’m convinced we’ll even see states like Texas, Mississippi, and Alabama recognizing the right of gays and lesbians to matter, especially now that it’s reaching the point where 1/3 of the nation will be living in states were marriage equality is a fact of life. Slowly but surely, people will see that all of the fear mongering that opponents had been engaging in for the past twenty years turned out to be a massive deception and that their really is no logical argument against treating gays and lesbians as being equal to their fellow Americans when it comes to this most intimate of human relationships.

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About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. C. Clavin says:

    In spite of the efforts of Republicans we are becoming freer.
    If I believed in god I would thank her.

    Like or Dislike: Thumb up 13 Thumb down 4

  2. OzarkHillbilly says:

    I’m convinced we’ll even see states like Texas, Mississippi, and Alabama recognizing the right of gays and lesbians to matter,

    Really Doug? You think gays and lesbians will some day matter even in Texas? ;-)

    Funny, today I am going to a reception in Illinois for a very dear friend who eloped to California so she could marry her long time partner. If they had just waited a month or 2, they could have saved themselves the airfare.

    Like or Dislike: Thumb up 5 Thumb down 0

  3. James Pearce says:

    @OzarkHillbilly:

    You think gays and lesbians will some day matter even in Texas?

    I can see it. At some point this will have to be dealt with on a federal level, for bureaucratic rather than moral reasons.

    Like or Dislike: Thumb up 3 Thumb down 0

  4. rodney dill says:

    @OzarkHillbilly:IMO, I think it will happen, and mostly because of people and not politics. As more and more gays have become openly gay, more people find they have an acquaintance, friend, or relative that is gay… and they come to realize they don’t won’t them unhappy or punished. And as James Pearce said, at some time it will be addressed at the Federal level after there are only a few hold out states.

    Like or Dislike: Thumb up 5 Thumb down 1

  5. michael reynolds says:

    The south will deal with this the way they dealt with race: slowly, dishonestly, hypocritically. They’ll eventually end up on the right side legally, but not before doing all the damage they can to individual lives. All in the name of “conservatism” of course, because that’s the core of conservatism: using government to empower majorities to screw minorities. Liberty, dontcha know.

    Like or Dislike: Thumb up 12 Thumb down 5

  6. stonetools says:

    @C. Clavin:

    I find it truly astounding the way Doug writes the history of the fight for marriage equality without mentioning the fierce partisan divide between Democrats( for it) and Republicans (against it). It’s like writing a history of the Civil War without mentioning North and South!
    “In 1865, due to evolving attitudes, the United States abolished slavery” would be the Mataconis synopsis of the Civil War, I guess.

    Nonetheless, the direction the nation is moving on this issue is clear and, eventually, I’m convinced we’ll even see states like Texas, Mississippi, and Alabama recognizing the right of gays and lesbians to matter

    Not if the Republicans have anything to do with it, I bet. Doug must be contemplating Democratic takeover of the legislatures in those states.

    Slowly but surely, people will see that all of the fear mongering that opponents had been engaging in for the past twenty years

    To what political party do most of those opponents belong to, Doug? Come on, you can answer that one, right?
    Here’s another easy one. Would it be more or less likely that marriage equality would pass in Virginia if there were Democratic majorities in the legislature @michael reynolds: along with a Democratic governor?

    Like or Dislike: Thumb up 3 Thumb down 4

  7. stonetools says:

    @michael reynolds:

    The current generation of Southerners will have to die off first, and a new generation will then be ready to enter the promised land of equal rights for gays. Remember, southerners are STILL fighting to suppress the voting rights of blacks and other minorities, despite the fond imaginings of Chief Justice Roberts.

    Like or Dislike: Thumb up 5 Thumb down 2

  8. grumpy realist says:

    @OzarkHillbilly: Illinois went over to Teh Dark Side quicker than I thought. I was convinced we were going to have at least another 3 years of screaming from the religious fruitcakes.

    Well, we’ll always have that. It’s when business realizes that it’s really, really stupid to put their employees in backwards locations because they’ve got to pay them much more in ca$h and it’s much easier to attract great employees to live in equal-rights states that we’ll really see the tipping point.

    (I supposed you COULD get me to go work in Saudi Arabia, but I’m demanding $1M/year in compensation.)

    Like or Dislike: Thumb up 2 Thumb down 0

  9. C. Clavin says:

    @stonetools:
    It’s the same way he writes about the economy .
    He’d do well at Breitbart.com

    Like or Dislike: Thumb up 1 Thumb down 7

  10. Stonetools says:

    Tell me again why a homosexual or anyone who supports equal rights for gays would ever vote Republican? Seriously, it would be like a black person singing the praises of the Confederacy!
    Wonder which will be the next state to cross over? New Mexico?

    Like or Dislike: Thumb up 6 Thumb down 6

  11. steve s says:

    The current generation of Southerners will have to die off first, and a new generation will then be ready to enter the promised land of equal rights for gays

    Old southerners will have to die off, young southerners get it. But also, people do change their minds, and support for gay marriage has been rising in Every demographic across the board.

    Like or Dislike: Thumb up 2 Thumb down 0

  12. DrDaveT says:

    @stonetools:
    A rising tide lifts all boats, stonetools. For major social reversals, in which things that were once widely seen as ‘natural’ (slavery, wives as property, child labor) come to be seen as intolerable, in the long run it doesn’t matter which party got there first. It is no longer relevant that Republicans were the anti-slavery party of the mid-19th century in America, or that the Liberal party was the first to seriously support votes for women in the UK.

    Gay marriage will eventually be as uncontroversial as women’s votes, in all major political parties. With any luck, it will also be the fault line along which the Republican party splits before we achieve that happy state.

    Like or Dislike: Thumb up 0 Thumb down 1

  13. Stonetools says:

    @DrDaveT:

    A rising tide lifts all boats, stonetools. For major social reversals, in which things that were once widely seen as ‘natural’ (slavery, wives as property, child labor) come to be seen as intolerable, in the long run it doesn’t matter which party got there first. It is no longer relevant that Republicans were the anti-slavery party of the mid-19th century in America, or that the Liberal party was the first to seriously support votes for women in the UK.

    But in the long run we are all dead. Frankly, who cares if a century from now , the Republican Party finally embraces gay rights? Does that help the gay person who is fired from his job because he is discriminated against today?
    The reality is that a vote for a Republican candidate today is a vote against gay rights, since the average Republican candidate is a reliably anti -gay rights vote. Even the rare case that your friendly neighborhood Republican representative favors gay rights, the Republican Party at the state and national level is overwhelmingly anti gay rights. Where the Democrats are in charge, the cause for gay rights is advancing: where the Republicans are in power, the cause of gay rights is stalled. To ignore that is to deny current political reality.

    Like or Dislike: Thumb up 3 Thumb down 1

  14. DrDaveT says:

    @Stonetools:

    [W]ho cares if a century from now , the Republican Party finally embraces gay rights? Does that help the gay person who is fired from his job because he is discriminated against today?

    Not a whit. I don’t recall saying that it did.

    The reality is that a vote for a Republican candidate today is a vote against gay rights, since the average Republican candidate is a reliably anti -gay rights vote.

    I don’t vote for the average Republican; I vote for individuals. A vote for governor Christie, for example, does not seem (at the moment) to be a vote against gay rights. You are right about the average, but that’s irrelevant when casting any specific vote.

    You seem to have missed my point, which is that this issue is so big that it is only temporarily, contingently partisan. Of course anyone who cares strongly about marriage equality is going to find themselves voting for few Republicans these days. But to the extent that our political parties have actual persistent philosophies behind them (which is at an all time low, as far as I can tell), the rising acceptance of gay marriage and belief in marriage equality are independent of those philosophies. They apply across the board. Some parties will recognize that faster than others.

    Like or Dislike: Thumb up 1 Thumb down 1

  15. stonetools says:

    These down voters are irritating me now, so its time to make clear how anti LGBT the Republicans are. Doug’s series of posts on the issue hide the fact that in those states that established marriage equality Democrats overwhelmingly voted in favor of marriage equality, whereas Republicans voted overwhelmingly against it. And why shouldn’t they? After all, Republicans oppose gay rights as a matter of national policy. In the GOP’s national party platform it states :

    MARRIAGE:

    The platform affirms the rights of states and the federal government not to recognize same-sex marriage. It backs a constitutional amendment defining marriage as the union of one man and one woman.

    Who put that into the GOP platform?

    “This ambitious blueprint projects a sea change in the way that government works,” said Virginia Gov. Bob McDonnell, who led the party’s platform committee. “It offers a solution for workers without jobs, families without savings and neighborhoods without hope.”

    That’s right-the supposedly moderate Republican who Doug voted for.
    Let’s take a look at the Virginia GOP. All three Republicans who ran for statewide office this year were staunchly anti gay rights:

    A hero of the anti-gay Right, Ken Cuccinelli has attacked gay rights at every turn, most recently by taking on the 2003 Supreme Court ruling that struck down sodomy laws. Cuccinelli describes homosexuality as “intrinsically wrong,” “against nature and harmful to society” and as representing a “personal challenge,” arguing that gay people can’t have a family. Cuccinelli led the effort to pass a state constitutional amendment banning same-sex marriage, which he said would lead to polygamy, and denounced HIV/AIDS education.

    “When you look at the homosexual agenda, I cannot support something that I believe brings nothing but self-destruction, not only physically but of their soul,” Cuccinelli said.

    He has worked to stop gay people from adopting children and extending health benefits to their partners, and even tried to stop college and universities from offering protections for LGBT employees.

    Obenshain opposed a bill to protect LGBT employees from job discrimination three times in the state senate. Receiving a perfect rating from the state’s chief anti-gay group, Obenshain voted in favor of bills that would curb gay adoption rights and undermine anti-discrimination policies at public universities. The state senator also withdrew his support from a judge whose nomination drew GOP opposition because he is openly gay.

    Jackson has built his entire career demonizing gays and lesbians, whom he has called “perverted,” “degenerate,” “spiritually darkened” and “frankly very sick people psychologically, mentally and emotionally.”
    – See more at: http://www.rightwingwatch.org/content/profiles-extremism-virginia-gops-tea-party-ticket#sthash.HThdcRsX.dpuf

    The Virginia GOP’s implacable opposition to gay rights is mirrored across the states. There are occasional Republicans who vote in favor of gay rights, but they are the exception. Talk of the country “moving toward gay rights” obscure that reality.

    Like or Dislike: Thumb up 3 Thumb down 0

  16. stonetools says:

    @DrDaveT:

    . A vote for governor Christie, for example, does not seem (at the moment) to be a vote against gay rights.

    You do know that until just a few weeks ago, Christie opposed marriage equality, right? And that his hand was forced by a court decision in favor of marriage equality? The Republicans outside the Northeast generally don’t face that kind of pressure, and happily remain anti gay rights.

    You seem to have missed my point, which is that this issue is so big that it is only temporarily, contingently partisan. Of course anyone who cares strongly about marriage equality is going to find themselves voting for few Republicans these days.

    I think you miss MY point, which is that “temporary” can be a long time, if you are facing discrimination TODAY, if you want to marry THIS YEAR, or you want to adopt a child NEXT YEAR.To take a lofty view that eventually, the Republicans will see the light and eventually end their opposition to gay rights is cold comfort to victims of their policy now. And it certainly doesn’t excuse you for voting for the party favoring those discriminatory policies.

    Like or Dislike: Thumb up 5 Thumb down 0

  17. DrDaveT says:

    @stonetools:

    You do know that until just a few weeks ago, Christie opposed marriage equality, right?

    You did see the words “(at the moment)” in my comment, right?

    To take a lofty view that eventually, the Republicans will see the light and eventually end their opposition to gay rights is cold comfort to victims of their policy now.

    You think? Most of my LGBT friends take quite a bit of comfort in knowing that history will view the Ken Cuccinellis of the world the way we view Simon Legree today.

    And it certainly doesn’t excuse you for voting for the party favoring those discriminatory policies.

    I don’t vote for parties. I vote for candidates, and I don’t vote for candidates with an open anti-gay agenda. I publicly castigate the current GOP leadership for their bigoted platform. I am voting exactly the way you want me to, as far as I can tell, except apparently I’m not doing it blindly enough.

    Like or Dislike: Thumb up 1 Thumb down 3

  18. Al says:

    @stonetools:

    I find it amusing to watch Democrats try to rewrite history over this issue and conveniently forget that the reason Republicans took up same sex marriage as an issue in the first place was because it was a a very, very effective wedge issue.

    As Doug’s headline alludes to, it was barely more than twenty years ago that supporting same sex marriage was a fringe position in both parties. Heck, it wasn’t until last year that Obama felt it was safe to come out in support of it.

    Like or Dislike: Thumb up 1 Thumb down 3

  19. An Interested Party says:

    I find it amusing to watch Democrats try to rewrite history over this issue and conveniently forget that the reason Republicans took up same sex marriage as an issue in the first place was because it was a a very, very effective wedge issue.

    It isn’t so much a rewriting of history as it is that Democrats learned to be sensible and be on the right side of history, casting aside their prejudices a lot sooner than Republicans….and this issue, along with immigration reform, it is now the perfect wedge issue–for Democrats…

    Like or Dislike: Thumb up 2 Thumb down 2

  20. Retnav says:

    @stonetools: The onesided and hatefull tone of the article is so blatantly biased that its laughable. Keep holding on to your hubris and it will be sweeter when it is defeated. Just because one lower court justice and a political appointed hack of a Attorney General says that the case against what the legislature illegally did does not have merit will not hold up and the supreme court will overturn this farce. Cowards should let us vote not ram it through not listening to a 8-1 against from the people. 80% against there is NO way the majority wants it!

    Like or Dislike: Thumb up 0 Thumb down 5

  21. grumpy realist says:

    @Retnav: Um, dudes–the majority of Americans were AGAINST interracial marriage for at least ten years after Loving vs. Virginia. Just sayin’ that if you decided to wait until rights were approved of by the majority of the population you might be waiting a long, long time.

    Also, the idea about rights is that they are something that are unalienable. Not subject to democratic vote. Capisce? Or do you think that by majority opinion you should be able to enslave people again?

    Like or Dislike: Thumb up 3 Thumb down 0

  22. Al says:

    @An Interested Party:

    It isn’t so much a rewriting of history as it is that Democrats learned to be sensible and be on the right side of history, casting aside their prejudices a lot sooner than Republicans

    While I agree with the second sentiment, I don’t with the first. Any attempt to cast the fight that gays and lesbians have waged so far to get equal rights as a Democrat vs. Republican fight completely ignores about sixty years of history when Democrats and Republicans alike and in near totality were against gays and lesbians having them.

    Like or Dislike: Thumb up 0 Thumb down 1

  23. al-Ameda says:

    @Retnav:

    The onesided and hatefull tone of the article is so blatantly biased that its laughable. Keep holding on to your hubris and it will be sweeter when it is defeated. Just because one lower court justice and a political appointed hack of a Attorney General says that the case against what the legislature illegally did does not have merit will not hold up and the supreme court will overturn this farce. Cowards should let us vote not ram it through not listening to a 8-1 against from the people. 80% against there is NO way the majority wants it!

    I agree; a majority of the people should always have the right to take away or severely restrict equal rights under the law for classes of people that the majority disapproves of. Most black people would agree, right?

    Like or Dislike: Thumb up 0 Thumb down 2

  24. An Interested Party says:

    …sixty years of history when Democrats and Republicans alike and in near totality were against gays and lesbians having them.

    Oh, I don’t necessarily disagree with that, but, it is the Democrats, for the most part, who have finally made the right decision regarding this issue…meanwhile, Republicans are left in thrall to their more Neanderthal elements and refuse to move forward…

    80% against there is NO way the majority wants it!

    Who cares? Rights such as these aren’t something that are granted to a minority due to what the majority want….rights are far more fundamental than that…

    Like or Dislike: Thumb up 2 Thumb down 1