BAEHR v. LEWIN 852 P.2d 44 (Hawai'i 1993)

Three same-sex couples claimed that Hawai'i had violated their rights by denying them marriage licenses. The Hawai'i Supreme Court agreed, holding that denying marriage licenses to same-sex couples is unconstitutional unless the state can show a compelling reason to do so. The court's argument rested on the equal protection clause of the Hawai'i state constitution, which prohibits sex discrimination. The court held that the marriage statute imposed a sex-based classification, because it "restricts the marital relation to a male and a female." The court therefore held that the statute would be unconstitutional unless the state could show that this classification was necessary to some compelling state interest and remanded the case for a trial on that question. (Because the decision was based on the state constitution and raised no federal issues, it could not be appealed to the U.S. Supreme Court.)

In 1996, as expected, the state lost at trial. It appealed the case once more to the Hawai'i Supreme Court. While the appeal was pending, the injunction was stayed, so that same-sex marriage continued to be effectively prohibited in Hawai'i. In November 1998, the Hawai'i electorate ratified an amendment to the state constitution providing that the legislature has the power to reserve marriage to opposite-sex couples. There was disagreement about whether the result in the case would be affected by the amendment absent new legislation, but in December 1999, the court held that the statute was now valid. The court did not, however, retract the analysis set forth in its earlier opinion.

The argument that persuaded the court is unfamiliar but clear. If Lucy is permitted to marry Fred, but Ricky may not marry Fred, then Ricky is being discriminated against on the basis of his sex. This argument, however, had always lost in court before Baehr. (The Hawai'i plaintiffs did not even bother to make it, and the court had to come up with the argument by itself.) One counterargument had always been made by courts in other states: if lesbians and gay men are equally discriminated against, then there is no sex discrimination. This counterargument continued to persuade the one dissenting judge in Baehr. The legal innovation in Baehr was that the court noticed that this counterargument was the same one the U.S. Supreme Court had rejected in loving v. virginia, the 1967 case in which it struck down a law forbidding interracial marriage. Virginia had defended its miscegenation law with the argument that, although it was true that blacks were forbidden to marry whites, whites were equally forbidden to marry blacks. The U.S. Supreme Court firmly rejected this argument; if prohibited conduct is defined by reference to a characteristic, then the prohibition is not neutral with respect to that characteristic. If this argument is accepted in the same-sex marriage context, then it has important implications for federal constitutional law, for classifications based on sex require an "exceedingly persuasive justification" to be upheld. The principles established in Baehr thus imply presumptive invalidity for all laws that discriminate on the basis of sexual orientation.

Andrew Koppelman
(2000)