NATIONAL JOURNAL OF SEXUAL ORIENTATION LAW
VOL. 1, ISSUE 1 Mary Sylla, editor (firstname.lastname@example.org)
Baehr v. Lewin: Will Equal Protection Lead to the End of Prohibitions on Same-Sex Marriages?
(Editor's note: On June 22, 1994, after the submission of this piece, the governor of Hawaii signed into law a bill which prohibits same-sex marriage in Hawaii by defining marriage as existing only between two people of opposite sexes. The text of the law chastises the Hawaii Supreme Court for its decision in Baehr v. Lewin, saying the decision encroached on the legislature's law-making function and infringed on the separation of powers of the respective branches of state government. Though this development clearly changes the circumstances of its reconsideration, Baehr v. Lewin is still scheduled to be reheard by the lower court in April 1995.)
In 1993 the Hawaii Supreme Court broke new ground in the controversial area of homosexual rights in the family law context.1 In Baehr v. Lewin,2 the Hawaii Supreme Court held that a state statute barring same-sex marriages is presumed unconstitutional unless the state can show that "(a) the statute's sex based classification is justified by compelling state interests and (b) the statute is narrowly drawn to avoid unnecessary abridgment of ... constitutional rights".3
This Note will examine the impact of this decision in Hawaii and in other states. First, this Note will examine the regulation of marriage in the United States,4 and it will review the history of attempts at judicial recognition of same-sex marriages.5 Next, this Note will examine the facts in Baehr6 and the Hawaii Supreme Court's analysis,7 concluding that the Hawaii Supreme Court correctly decided the case.8 Finally, this Note will examine the impact of this decision,
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which may include attempts at amending the Hawaii State Constitution.9 Undoubtedly, the Baehr decision will generate heated debate in Hawaii.10 It will also affect other states confronting the issue of same-sex marriage,11 and it may in fact promote extensive litigation in other states before the waters clear on the issue of same-sex marriage.12
The regulation of marriage has traditionally been a function reserved for the states.13 In the state of Hawaii, "the business of marriage creation has been codified for more than a century"14 and "common law" marriages are no longer recognized.15
The United States Supreme Court, however, has placed bounds on state control of marriage, primarily by holding that marriage is a fundamental right.16 The Supreme Court first characterized the right of marriage as fundamental in Skinner v. Oklahoma ex rel. Williamson.17 In Skinner, where a state statute permitting involuntary sterilization of criminals was held invalid, the Supreme Court stated that "[m]arriage and procreation are fundamental to the very existence and survival of the human race."18
Because marriage is a fundamental right, regulations that interfere with the exercise of that fundamental right are subject to a higher level of scrutiny.19 In Zablocki v. Redhail, the Supreme Court invalidated a state statute which interfered "directly and substantially with the right to marry"20 because the statute did not satisfy the "strict scrutiny" standard.21
The Supreme Court has generally contemplated marriage as an institution which involves members of the opposite sex,22 as in Skinner, where the Court linked the right to marry to the right of procreation.23 The Supreme Court has also noted the historic and traditional nature of marriage and family, again implicitly contemplating marriage as an institution involving the union of man and woman.24
However, the Supreme Court has not always allowed states to limit marriage to a certain traditional configuration. In a 1967 case, Loving v. Commonwealth of Virginia,25 the Virginia courts determined that interracial marriage could not exist because such a union was intrinsically unnatural, and because "it had never been the custom of the state to recognize mixed marriages, marriage always having been construed to presuppose a different configuration."26 The U.S. Supreme Court reversed the Virginia courts.27 Holding that racial classifications are subject to the "most rigid scrutiny,"28 the Supreme Court found that Virginia's anti-miscegenation statute29 violated the Equal Protection and Due Process Clauses of the Fourteenth Amendment.30
The Supreme Court has also indicated that a higher level of scrutiny might be applied to statutory sex-based classifications.31 In Frontiero v. Richardson, the Supreme Court held that a federal statute which accorded disparate treatment to male and female military employees was subject to a higher level of scrutiny.32
Likewise, on the state level, the Supreme Court of Hawaii has held that laws which classify on the basis of a suspect
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category or impinge upon fundamental rights are subject to a higher level of scrutiny.33 In a case dealing specifically with a sex-based classification, Holdman v. Olim,34 the Hawaii Supreme Court noted that it could apply a higher level of scrutiny to sex-based classifications.35 However, in Holdman, which involved a challenge to a prison's special dress requirement for female visitors, the Hawaii Supreme Court did not decide the exact level of scrutiny to apply to sex-based classifications because the special dress requirement survived even under the strict scrutiny test.36
Despite the higher level of scrutiny applied to interference with fundamental rights such as marriage, and also to statutory sex-based classifications, no court until Baehr found a prohibition on same-sex marriage to be unconstitutional.37 A variety of important, yet unsuccessful challenges to prohibitions on same-sex marriage were brought in the early 1970's.38
In the first major decision dealing with the issue, Baker v. Nelson,39 two males filed suit after a courthouse clerk declined to issue them a marriage license because they were of the same sex.40 The Minnesota Supreme Court first held that the plain language of the state marriage statute precluded same-sex marriage because marriage by definition involves a man and a woman.41 The court then rejected the petitioners' constitutional claims, holding that the statute did not violate the Due Process or Equal Protection Clauses of the Fourteenth Amendment.42
In reaching the conclusion that there were no constitutional violations, the Minnesota Supreme Court examined both Skinner v. ex rel. Williamson43 and Griswold v. Connecticut.44 The Court noted that those cases did not support the contention that a prohibition of same-sex marriage is invidiously discriminatory.45 The court distinguished Loving v. Virginia,46 concluding that "there is a clear distinction between a marital restriction based merely upon race and one based on the fundamental difference in sex."47
Approximately two years after the Baker decision, the Kentucky Court of Appeals, in Jones v. Hallahan,48 faced a challenge by two females who were refused a marriage license by a courthouse clerk.49 In Jones, the Kentucky Court of Appeals held that no constitutional issues were involved because marriage by definition involves a man and a woman, thus the appellants were incapable of entering into marriage.50 The court stated that "the relationship proposed by the appellants does not authorize the issuance of a marriage license because what they propose is not a marriage."51
The Washington Court of Appeals faced the next major case to deal with the issue of same-sex marriage in Singer v. Hara.52 Two males who were denied a marriage license filed a motion to show cause, which was subsequently denied by the trial court.53 On appeal, the appellants alleged violations of the Equal Rights Amendment (ERA) to the Washington State Constitution as well as violations of the United States Constitution.54 The Washington Court of Appeals affirmed the denial of the marriage license,
finding first that the plain language of the marriage statute showed that the legislature had not authorized same-sex marriages.55 The court next found that there was no violation of the state's ERA.56 Using the logic of the previous same-sex
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marriag e cases,57 the court reasoned that the appellants were not being discriminated against on the basis of sex, they were excluded from marrying solely because of the definition of marriage, which the court defined as involving two people of the opposite sex. 58
Finally, the Singer court noted that for purposes of the Fourteenth Amendment, legislative acts which discriminate on the basis of sex require strict judicial scrutiny.59 However, because the court had already held in connection with its ERA discussion that the statute did not discriminate on the grounds of sex, strict judicial scrutiny was held not applicable here.60 The statute instead had to meet the rational basis standard.61 The court stated that "there exists a rational basis for the state to limit the
definition of marriage to exclude same-sex marriages."62 After Singer, there have been occasional unsuccessful forays into the courts by same-sex couples seeking to be married.63 Same-sex couples have also, with mixed success, sought affirmance of other rights through the judicial system.64 However, no sta te had recognized same-sex marriage, and courts consistently held that statutes prohibiting same-sex marriage were valid.65
III. Analysis A. The Facts of The Baehr Case
On or about December 17, 1990, three same-sex couples66 filed applications for marriage licenses with the Hawaii Department of Health (DOH).67 The DOH denied the marriage license applications on the ground that each couple was of the same sex and any union between members of the same sex was not a valid marriage under the applicable Hawaii law - Hawaii Revised Statute (HRS) Y$572-1.68
On May 1, 1991, the 3 couples joined in a suit against the DOH seeking, inter alia, a declaration that HRS Y$572-1 was unconstitutional as it was construed and applied by the DOH.69 The couples averred that the DOH's interpretation and application of HR S Y$572-1 to deny same-sex couples access to marriage licenses violated their rights to privacy, equal protection of the laws, and due process of law as guaranteed by the Hawaii Constitution.70 The Hawaii Circuit Court granted the DOH's motion for judgment on the pleadings and dismissed the complaint with prejudice, holding that the DOH was entitled to judgment as a matter of law.71
Reversing the circuit court in a plurality opinion,72 the Hawaii Supreme Court held that sex is a suspect category for purposes of equal protection analysis under the Hawaii Constitution,73 thus HRS Y$572-1, which establishes a sex-based classification,
is subject to the "strict scrutiny" test.74 Accordingly, HRS Y$572-1 is presumed unconstitutional unless the DOH can show that the statute satisfies "strict scrutiny".75 The Hawaii Supreme Court then vacated and remanded the case for proceedings consis
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tent with its holding.76 B. Narrative Analysis Plurality Opinion
To reach this ground-breaking holding, the Hawaii Supreme Court divided its analysis into two parts. First, the court examined the couples' allegation that HRS Y$572-1 violated their right to privacy as guaranteed by the Hawaii Constitution.77 Second, t he court examined the couples' allegation that HRS Y$572-1 violated their rights under the Equal Protection Clause of the Hawaii Constitution.78
The court noted first that the right to privacy guaranteed by the Hawaii Constitution encompasses at least all of the fundamental rights within the privacy protection of the U.S. Constitution.79 Thus, the court looked to the scope of the right to priva cy guaranteed by the U.S. Constitution.80 In particular, the court examined two U.S. Supreme Court cases, Skinner81 and Zablocki.82 The Hawaii Supreme Court noted that while both cases recognized a fundamental right to marriage subsumed within the ri ght to privacy, both cases also seemed to contemplate marriage as a union between a man and woman.83 Thus, the court admitted that it was being asked to recognize a new fundamental right, the fundamental right of same-sex couples to marry.84
To determine fundamental rights, the court stated that it must look "to the 'traditions and [collective] conscience of our people'".85 Noting that a right to same-sex marriage was not rooted in the traditions and collective conscience of the people,
the court concluded that it would not create a new fundamental right to same-sex marriage arising from the right to privacy.86 However, the court mentioned that the applicant couples were not without a potential remedy because the court still had to co nsider the Equal Protection Clause of the Hawaii Constitution.87
The Hawaii Supreme Court then engaged in a detailed discussion of the application of the state Equal Protection Clause to HRS Y$572-1.88 The court first noted that the regulation of marriage is within the province of a state's powers,89 and that various rights and benefits are associated with legally sanctioned marriages.90 The court also explained that the Equal Protection Clause of the Hawaii Constitution provides further protection than that of the U.S. Constitution because the Hawaii Constitution
explicitly prohibits state-sanctioned discrimination on the basis of sex.91
Next, the Hawaii Supreme Court distinguished major cases from other jurisdictions which dealt with the issue of same-sex marriage.92 First, the court noted that Baker v. Nelson93 and De Santo v. Barnsley94 were not relevant. Baker was considered irrelevant because it only considered federal constitutional issues, and did not involve any state constitutional issues.95 De Santo was considered irrelevant because it dealt with the issue of state recognition of "common-law marriage", which was not an issue in Baehr.96
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The court then entered into an important phase in its analysis, concerning the definition of marriage. The DOH had argued that the couples could not be married because marriage by definition involved partners of the opposite sex.97 This was the same logic used in Jones v. Hallahan98 and Singer v. Hara.99 The Hawaii Supreme Court determined the logic of this argument to be "circular and unpersuasive."100 The court noted the parallel between the DOH's limiting marriage to a certain traditional definition and the Virginia courts in Loving claiming that interracial marriage could not exist because mixed marriages were never the custom, and because marriage was always "construed to presuppose a different configuration."101 That type of reasoning was rejected by the United States Supreme Court in Loving.102 The Hawaii Supreme Court stated that the United States Supreme Court's rejection of such reasoning in the context of interracial marriage also discredits the reasoning of the DOH and the Jones and Singer courts in the context of same-sex marriages.103
Finally, the Hawaii Supreme Court determined that, as a sex- based classification, HRS Y$572-1.104 should be subject to strict scrutiny. The Court noted that it applies strict scrutiny to laws classifying on the basis of suspect categories or impinging upon fundamental interests.105 Becau se "HRS Y$572-1, on its face and as applied, regulates ... on the basis of the applicants' sex106 ... it establishes a sex-based classification."107 The court next looked at Holdman,108 a prior case which dealt with a sex-based classification. The Court noted that in Holdman, it determined that sex-based classifications were subject to some form of heightened scrutiny, arguably strict scrutiny.109 Furthermore in Holdman, the Hawaii Supreme Court looked to the United States Supreme Court decision in Frontiero v. Richardson,110 where the Court implied that if the Equal Rights Amendment had been part of the United States Constitution, the United States Supreme Court would have subjected statutory sex-based classifications to strict scrutiny.111 Thus, because the Hawaii Constitution contains an Equal Rights Amendment,112 the Hawaii Supreme Court determined that statutory sex-based classifications are subject to the strict scrutiny test.113 Accordingly, HRS Y$572-1 is presumed to be unconstituti onal, unless the DOH can show on remand that "(a) the statute's sex based classification is justified by compelling state interests and (b) the statute is narrowly drawn to avoid unnecessary abridgment of the applicant couples' constitutional rights".114 Concurrence
The concurrence agreed that the circuit court erroneously granted the DOH's motion for judgment on the pleadings.115 However, noting that this decision turned on a sex-based classification, the concurrence asserted that genuine issues of material fact remained regarding aspects of a person's "sex" that
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are "biologically fated."116 Citing to various news articles discussing evidence of a genetic role in sexual orientation,117 the concurrence stated that if differences in sexual orientation are "biologic ally fated", then the state is discriminating by permitting opposite-sex marriages and not permitting same-sex marriages.118 However, if a person's sexual orientation is not "biologically fated", then the state may legitimately prohibit same-sex marriage s.119 Thus, the concurrence believed that there should be findings of fact to determine the biological nature of sexual orientation.120 Dissent
The dissent agreed with the plurality that the appellants do not have a fundamental right to same-sex marriage arising out of the Hawaii Constitution's right to privacy.121 However, the dissent disagreed with the plurality's equal protection analysis and suggested that the appellants should address their claims to the legislature.122
The dissent first criticized the plurality's use of Loving to conclude that the appellants have a civil right to marriage.123 According to the dissent, because Loving did not involve a same-sex couple, it is not proper authority for determining that same-sex marriage should be given civil right status.123
The dissent next noted that while Zablocki established constitutional limits on a state's right to regulate marriage, it does not limit a state's right to prohibit same-sex marriages.125
Essentially the dissent argued that the earlier same-sex marriage
cases were controlling precedent.126 In particular, the dissent pointed to the reasoning that appellants could not be married because marriage by definition involves members of the opposite sex.127
The dissent next argued was HRS Y$572-1 does not establish a suspect class based on gender,128 nor does it discriminate on the basis of gender because males and females are treated alike under the statute.129 The statute treats unmarried persons
equally because a male cannot marry another male, and a female cannot marry another female. Gender discrimination, according to the dissent, is when one gender is given preference over the other gender.130 Thus, the dissent stated that the statute shoul d not be subjected to the "strict scrutiny" standard, but instead should be subjected to the "rational basis" test.131 Furthermore, the dissent noted that the state of Washington has an ERA identical to Hawaii's ERA, yet the Singer court found that a pro hibition on same-sex marriage did not discriminate on account of sex.132 The dissent also argued that HRS Y$572-1 should not be presumed unconstitutional, claiming that the general rule is that every statute is presumed to be constitutional.133
Finally, the dissent stated that the appellants should address their claims to the legislature because this decision can have "repercussions on the finances and policies of the
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governments and industry of [Hawaii and other states]."134 The dissent noted
that the legislature "can express the will of the populace in deciding whether such benefits should be extended to persons in the appellants' circumstances."135 C. Critical Analysis
The first half of the court's analysis, holding that there is no fundamental right to same-sex marriage arising from the right to privacy,136 found agreement among all of the court.137 The basic premise that same-sex marriag e is not rooted in the traditions of the people certainly applies to modern Americans, as there is not a long-standing American tradition of same-sex marriage.138 The second half of the court's opinion, its equal protection analysis,139 deserves furthe r consideration. The essential difference of opinion between the plurality and the dissent revolved around whether or not HRS Y$572-1 establishes a suspect classification on the basis of sex.
The Hawaii Supreme Court would have created less controversy by deciding not to apply strict-scrutiny in this case. It had to determine the constitutionality of a statute that on its face classifies according to sex.140 In light of the Supreme Court's reasoning in Loving, it was clear that equal application of the statute does not mean that the statute affords equal protection.141 Thus the Hawaii Supreme Court was faced with a statute that classifies according to sex and that does not necessarily accord equal protection. The determinative issue therefore was what level of scrutiny to apply to such a statute. As discussed above, the court noted that under Hawaii precedent, a higher level of scrutiny is ap plied to sex-based classifications. Furthermore, because the Hawaii Constitution contains an Equal Rights Amendment, applying strict scrutiny would be in accord with the United States Supreme Court's reasoning. Thus, the court's decision to apply strict s crutiny is sound, as it is based on state precedent and Supreme Court reasoning.
It is worth noting however that the court never directly answered the question of whether marriage by definition precludes same-sex couples from marrying. The dissent emphasized the idea that marriage by definition means only a union of man and woman.142 However, the plurality did not answer that question because the question that the court was required to answer was whether or not the Equal Protection Clause of the Hawaii Constitution was implicated by a prohibition on same-sex marriages. By applying Loving's analysis of race-based classifications to an analysis of sex-based classifications, the plurality answered the equal protection question and essentially side-stepped the issue of the
definition of marriage. The dissent argued that the issue of same-sex marriage is better left to the legislature.143 The plurality responded that it was not legislating but was merely performing its proper
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role: reviewing the constitutionality of existing legislation.144
Finally, the concurrence's preoccupation with the biological nature of a person's sexual orientation was not relevant to the court's equal protection analysis.145 The plurality's analysis focused on a sex-based classification, not a sexual orientation classification. As the plurality noted, the biological nature of person's sexual orientation does not affect a determination of whether state regulation of marriage on the basis of the applicants' sex denies the applicants equal protection of the laws.146 IV. IMPACT
This decision has sparked debate in Hawaii147 and generated nationwide publicity.148 In Hawaii, certain groups are planning to circulate petitions to amend the state constitution.149 The court's analysis, and its conclusion that a prohibition of same-sex marriage is subject to strict scrutiny, may influence other state courts confronting the issue.150 Its analysis will be especially relevant in those states that, like Hawaii, have an Equal Rights Amendment in their state constitution.151
The full impact of this case cannot be assessed until the result on remand is known. It seems likely that the state will be unable to meet its burden, and thus the statute will be found unconstitutional.152 Daniel Foley, the attorney who represented the couples, said "the state should find it difficult to meet any compelling interest."153 Hawaii Deputy Attorney General Sonia Faust agreed that the test is difficult to meet but, she said "the case is not over", and she is researching rulin gs that permitted regulations affecting fundamental rights.154
If the state is unable to meet its burden, this decision could affect the whole nation.155 According to Daniel Foley, there are 2 possible scenarios: more liberal state courts will grant "full faith and credit" to marriages ratified in Hawaii, while more conservative states may resist recognizing same-sex marriages, possibly citing to the Supreme Court's upholding of sodomy statutes on Federal Constitutional grounds.156 The public will probably have a mixed response towards recognition of Hawaiian same-sex marriages in other states,157 and undoubtedly many states will resist recognizing Hawaiian same-sex marriages.158 The result will be extensive litigation159 and public debate.160 Thus, although this case involved only state constitutional issues , its effect may be far-reaching as other states must confront the issue of recognizing Hawaiian same-sex marriages. Eventually, the conflict created by this state constitutional case may eventually force the United States Supreme Court to resolve the is sue of nationwide recognition of same-sex marriages.161
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1 Jorge Aquino, Will Other States Say 'Aloha' to Same-Sex Marriages?, The Recorder, May 10, 1993, at 3 (questioning whether "ground-breaking" nature of Hawaii Supreme Court's ruling will affect other states); Rorie Sherman, Gay Law No Longer Closeted, N at'l L.J., October 26, 1992, at 1 (explaining that "as the Hawaii suit suggests, inroads are being made in the most controversial area: family law"). 2 852 P.2d 44 (Haw. 1993). 3 Id. at 67. 4 For a discussion of the history of marriage regulation in the United States, see infra notes 15-32 and accompanying text. 5 For a discussion of cases dealing with the issue of same-sex marriages, see infra notes 38-63 and accompanying text. 6 For a discussion of the facts in Baehr, see infra notes 66-71 and accompanying text. 7 For a discussion of the plurality's analysis in Baehr, see infra notes 77-114 and accompanying text. For a discussion of the concurring and dissenting opinions, see infra notes 115-135 and accompanying text. 8 For a discussion of the validity of the court's analysis, see infra notes 138-57 and accompanying text. 9 For a discussion of possible attempts at amending the Hawaii Constitution, see infra note 149. 10 For a discussion of the debate in Hawaii created by this decision, see infra notes 147, 149. 11 For a discussion of the potential impact of this decision in other states, see infra notes 152-61 and accompanying text. 12 For a discussion of the possibility of litigation in other states as a result of the Baehr decision, see infra notes 158-60 and accompanying text. 13 Maynard v. Hill, 125 U.S. 190 (1888). This case involved a challenge to a divorce granted by legislative act of the Territory of Oregon. Id. at 203. The Court held, inter alia, that marriage is subject to the control of state legislature. Id. at 205. 14 Baehr v. Lewin, 852 P.2d 44, 58 (Haw. 1993). 15 Parke v. Parke, 25 Haw. 137, 404-05 (1920) (holding that person whose marriage was not authorized by the state was not eligible for inheritance rights given to a legally married spouse).
The Hawaii Supreme Court in Baehr noted a similar holding in a case from another jurisdiction involving a same-sex spouse. 852 P.2d at 58. In De Santo v. Barnsley, 476 A.2d 952 (1984), a Pennsylvania superior court held that although the state recognize d "common law marriage" between opposite sex couples, it would not recognize a "common law marriage" between a same-sex couple. 16 Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535 (1942). The Supreme Court, noting the fundamental right to marriage, struck down on equal protection grounds an Oklahoma statute which allowed involuntary sterilization of habitual criminals. Id. a t 541. In Griswold v. Connecticut, 381 U.S. 479 (1965), the Supreme Court held that a statute which prohibited married couples from using contraception violated the right to privacy under the Due Process Clause of the Fourteenth Amendment. The Court's d
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ecision was based on the fundamental right to marriage. Id. at 485-86. In Zablocki v. Redhail, 434 U.S. 114, 386 (1978), the Supreme Court reaffirmed the fundamental right to marry. The Court invalidated a Wisconsin statute which required any state resi dent under obligation to pay child support to prove that all child support obligations were met before being allowed to marry. Id. at 114-91. The Court held that the statute interfered with the fundamental right to marry. Id. at 386-87. 17 Baehr, 852 P.2d at 55. 18 Skinner, 316 U.S. at 541. 19 Zablocki, 434 U.S. at 386-91. However, a state regulation that does "not significantly interfere with decisions to enter into the marital relationship may legitimately be imposed." Id. at 386. 20 Zablocki at 387. 21 Zablocki at 386-91. The Court stated that "[w]hen a statutory classification significantly interferes with the exercise of a fundamental right, it cannot be upheld unless it is supported by sufficiently important state interests and is closely tailor ed to effectuate only those interests." Id. at 388. 22 The United States Supreme Court however, has never directly considered the issue of same-sex marriage. See, e.g., G. Sidney Buchanan, Same-Sex Marriage: The Linchpin Issue, 10 U. Dayton L. Rev. 541, 545 (1985). ("It should be stressed that the Unite d States Supreme Court has not directly confronted the same-sex marriage issue.") 23 As the Baehr court noted, "In Skinner, the right to marry was inextricably linked to the right of procreation." Baehr v. Lewin, 852 P.2d 44,55 (citing Skinner v. ex rel. Williamson, 316 U.S. 535,541 (1942)). 24 In Griswold, the court stated, "[w]e deal with a right of privacy older than the Bill of Rights - older than our political parties, older than our school system. Marriage is a coming together for better or for worse ... [i]t is an association that pr omotes a way of life." Griswold v. Connecticut, 381 U.S. 479, 486 (1965).
In Zablocki, the Court stated, "it would make little sense to recognize a right of privacy with respect to other matters of family life and not with respect to the decision to enter the relationship that is the foundation of the family in our society....
Surely, a decision to marry and raise the child in a traditional family setting must receive equal protection." 434 U.S. at 386. 25 388 U.S. 1 (1967). In Loving, two residents of Virginia, a white man and an African American woman, were married in the District of Columbia and then returned to Virginia. Id. at 2. They were indicted for violating Virginia's ban on interracial marri ages and were sentenced to one year in jail after pleading guilty. Id. at 3. The trial judge suspended their sentence for 25 years on the condition that the couple leave the state for that period of time. Id. at 3. The United States Supreme Court reve rsed their convictions holding that the prohibitions on
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interracial marriages violated both the Equal Protection Clause and the Due Process Clause of the Fourteenth Amendment. Id. at 8-12. 26 Baehr, 852 P.2d at 63 (citing Loving, 388 U.S. at 3). 27 Loving, 388 U.S. at 8-9. 28 Loving, 388 U.S. at 7 (quoting Korematsu v. United States, 323 U.S. 214, 216 (1944)). 29 Miscegenation is defined: "A mixture of races; esp: marriage or cohabitation between a white person and a member of another race." Webster's Third New Int'l Dictionary 1442 (1972). 30 Loving at 11-12. 31 Frontiero v. Richardson, 411 U.S. 677, 682-88 (1973). Frontiero involved a challenge to a federal statute which required spouses of female military employees to prove their dependency in order to receive certain benefits. Id. at 679-80. Spouses of male military employees did not have to prove their dependency. Id. The Supreme Court, in a plurality opinion, held that the statute was invalid because it accorded differential treatment to males and females. Id. at 690-91. There was disagreement between the justices as to the level of judicial scrutiny required for a statutory sex-based classification. Id. at 690-92. However, as the Baehr court noted, the logical inference from the opinion is that "had the Equal Rights Amendment been incorporated into t he United States Constitution ... the Frontiero Court would have subjected statutory sex-based classification to 'strict' judicial scrutiny." Baehr v. Lewin, 852 P.2d 44, 67.
However, the Baehr court also noted that "the current governing test under the Fourteenth Amendment is a standard intermediate between rational basis and strict scrutiny." Id. at 64 (Citing Craig v. Boren, 429 U.S. 190, 197 (1976)). 32 Frontiero, 411 U.S. at 690-91. 33 Nelson v. Miwa, 546 P.2d 1005 (Haw. 1976) The Hawaii Supreme Court held that a university policy of discharging employees at the age of 65 did not meet the rational basis test. Id. at 1013. The court also noted that "laws classifying on the basis of
suspect categories or impinging upon fundamental rights are presumed to be unconstitutional unless the state shows compelling state interests which justify such classifications." Id. at 1008 (citing ork v. State, 498 P.2d 644, 647 (Haw. 1972)). 34 581 P.2d 1164 (Haw. 1978). In Holdman, a woman challenged a prison's requirement that female visitors wear a brassiere. Id. at 1165-66. The Hawaii Supreme Court upheld the dress requirement noting that the requirement survived even under the strict scrutiny test. Id. at 1169. The dress requirement served a compelling state interest in maintaining prison security. Id. at 1167-68. 35 Id. at 1168. 36 Id. at 1167-68. 37 See Joan Biskupic, Ruling by Hawaii's Supreme Court Opens the Way to Gay Marriages, Wash. Post, May 7, 1993, at A10 ; see also Andrew H. Friedman, Same-Sex Marriage and the Right to Privacy: Abandoning Scriptural, Canonical, and Natural Law Based Defi nitions of Marriage, 1992 How. L.J. 173, 187-88 (1992) (noting that no state or federal court has recognized same-sex marriage). 38 Alissa Friedman, The Necessity for State Recognition of
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Same-Sex Marriage: Constitutional Requirements and Evolving Notions of Family, 3 Berkeley Women's L.J. 134, 111 (1987-88) (examining same-sex marriage cases, this article argues that statutes de nying same-sex marriage interfere with fundamental rights and should be subjected to strict judicial scrutiny). 39 191 N.W.2d 185 (Minn. 1971), appeal dismissed, 409 U.S. 810 (1972). 40 Id. at 185. 41 Id. at 185-86. 42 Id. at 186-87. Note that apparently no state constitutional issues were raised in this case. 43 For a discussion of the U.S. Supreme Court's decision in Skinner, see supra notes 17-18, 23 and accompanying text. 44 For a discussion of the U.S. Supreme Court's decision in Griswold, see supra notes 16 and 24 and accompanying text. 45 Baker, 191 N.W.2d at 186. The Baker court noted that Skinner and Griswold both discussed the historic nature of the institution of marriage. Id. at 186 (citing Skinner, 316 U.S. at 541 and Griswold, 381 U.S. at 496). The Baker court stated that "[t ]his historic institution is more deeply founded than the asserted contemporary concept of marriage and societal interests for which petitioners contend." Id. The court also stated that, "[t]he equal protection clause of the Fourteenth Amendment, like th e due process clause, is not offended by the state's classification of persons authorized to marry." Id. at 187. 46 For a discussion of the U.S. Supreme Court's decision in Loving, see supra notes 25-30 and infra notes 146, 147 and accompanying text. 47 Baker, 191 N.W.2d at 187. 48 501 S.W.2d 588 (Ky. Ct. App. 1973). Note that in 1973, the Kentucky Court of Appeals was the highest state court. 49 Id. at 589. 50 Id. at 589. 51 Id. at 590. 52 522 P.2d 1187 (Wash. Ct. App. 1974). 53 Id. at 1188. 54 Id. at 1188-89. The appellants specifically alleged violations of the Eighth, Ninth, and Fourteenth Amendments to the United States Constitution. Id. 55 Id. at 1189. 56 Id. at 1189-1195. 57 The court used the same reasoning as was used in Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971) and in Jones v. Hallahan, 501 S.W.2d 588 (Ky. Ct. App. 1973). 58 Singer, 522 P.2d at 1192. 59 Id. at 1196. The court noted Washington precedent and the United States Supreme Court case Frontiero v. Richardson, 411 U.S. 677 (1973), both suggest that attempts at sexual discrimination require strict scrutiny. Id. 60 Id. at 1196. 61 Id. at 1196-97. 62 Id. at 1196-97. The court determined that a rational basis existed because "marriage as now defined is deeply rooted in our society" and the societal values in this area should be left to
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the legislature. Id. at 1197. 63 See, e.g., Dean v. District of Columbia, 18 Fam.L.Rep.(BNA) 1381 (D.C. Super Ct. 1992) (denying same-sex marriage because definition of marriage does not allow union between two people of same-sex); Adams v. Howerton, 673 F.2d 1036 (9th Cir.) cert. de nied 458 U.S. 1111 (1982) (denying same-sex marriage between male American citizen and male alien). 64 See, e.g., Bowers v. Hardwick, 106 S.Ct. 2841 (1986) (holding that Georgia's anti-sodomy statute did not violate the right to privacy); Braschi v. Stahl Associates, 543 N.E.2d 49 (N.. 1989) (holding that gay lover had right to stay in deceased lover' s apartment because he qualified as member of deceased lover's family); Matter of Alison D. v. Virginia M., 552 N..S.2d 321 (N.. App. Div. 1990) (holding that "lesbian partner was not a parent under Domestic Relations Law Y$70) . 65 Supra note 39. 66 There were 2 female couples and 1 male couple. Baehr v. Lewin, 852 P.2d 44, 48-49 (Haw. 1993). 67 Id. at 49; See Wash. Post supra note 39 (noting that one couple, Joseph Melilio and Pat Lagon, had lived together for fifteen years and wanted to marry for societal affirmation as well as for financial and legal benefits accorded married couples). 68 Baehr, 852 P.2d at 49-50. Hawaii Revised Statute Y$572-1 (1985) provides, in relevant part: Requisites of valid marriage contract. In order to make valid the marriage contract, it shall be necessary that: (1) The respective parties do not stand in relation to each other of ancestor and descendant of any degree whatsoever, brother and sister of the half as well as to the whole blood, uncle and niece, aunt and nephew, whether the relationship is legitimate o r illegitimate; (2) Each of the parties at the time of contracting the marriage is at least sixteen years of age; provided that with the written approval of the family court of the circuit court within which the minor resides, it shall be lawful for a person under the ag e of sixteen years, but in no event under the age of fifteen years, to marry, subject to section 572-2 [relating to consent of parent or guardian]; (3) The man does not at the time have any lawful wife living and that the woman does not at the time have any lawful husband living; (4) Consent of neither party to the marriage has been obtained by force, duress, or fraud; (5) Neither of the parties is a person afflicted with any loathsome disease concealed from and unknown to, the other party; (6) It shall in no case be lawful for any person to marry in the State without a license for that purpose duly obtained from the agent appointed to grant marriage licenses; and (7) The marriage ceremony be performed in the State by a person or society with a valid license to solemnize marriages and the man and woman to be married and the person performing the marriage ceremony be all physically present at the same place and time
for the marriage ceremony. Hawaii Revised Statutes Y$572-1 (1985) (emphasis added as in
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Baehr, 852 P.2d at 49). 69 Baehr, 852 P.2d at 48-49. The named defendant in this case is John C. Lewin who was acting in his official capacity as Director Of the Department of Health, State of Hawaii. Id. at 48. 70 The right to privacy is guaranteed by Hawaii Constitution article I, Y$6 which provides: The right of the people to privacy is recognized and shall not be infringed without the showing of a compelling state interest. The legislature shall take affirmative steps to implement this right.
Hawaii Const. art 1, Y$6. The right to equal protection of the laws and due process of law is guaranteed by Hawaii Constitution article I, Y$5 which provides: No person shall be deprived of life, liberty or property without due process of law, nor be denied the equal protection of the laws, nor be denied the enjoyment of the person's civil rights or be discriminated against in the exercise thereof because of ra ce, religion, sex or ancestry.
Hawaii Const. art I, Y$5. 71 Baehr, 852 P.2d at 52. Note that the circuit court apparently made certain findings of fact and law including a finding that homosexuals do not constitute a "suspect class" for purposes of equal protection analysis, meaning that HRS Y$572-1 must only meet the rational relationship test. Id. at 53-54. The court made the further finding that HRS Y$572-1 satisfied the rational relationship test, and therefore there was no violation of the applicant couples' constitutional right to equal protection of the
law. Id. at 54. 72 The opinion was written by Judge Levinson, who was joined by Chief Judge Moon. Baehr, 852 P.2d at 48. Intermediate Court of Appeals Chief Judge James Burns, a substitute associate justice concurred in a separate opinion. Id. Judge Walter Heen, als o a substitute associate justice, wrote the dissent. Id. Retired associate justice oshimi Hayashi would have joined in the dissent, but his term expired before the filing of the opinion. Id. 73 Id. at 64. 74 Id. at 67. Note, the Hawaii Supreme Court did agree with the DOH that the right to privacy guaranteed by the Hawaii Constitution did not give the applicant couples a constitutional right to same-sex marriage. See infra notes 83-91 and accompanying text. 75 To satisfy the "strict scrutiny" test, the DOH must show that "(a) the statute's sex based classification is justified by compelling state interests and (b) the statute is narrowly drawn to avoid unnecessary abridgment of the applicant couples' const itutional rights". Id. at 67. 76 Id. at 68. The court granted in part a motion for reconsideration or clarification by clarifying the "strict scrutiny" standard. The motion was denied in all other respects. Id. at 74-75. 77 For a discussion of the Hawaii Supreme Court's right to privacy analysis, see infra notes 77-86 and accompanying text.
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78 For a discussion of the Hawaii Supreme Court's equal protection analysis, see infra notes 88-91 and accompanying text. 79 Baehr, 852 P.2d at 55. 80 Id. at 55. 81 For a discussion of the U.S. Supreme Court's decision in Skinner, see supra notes 17-18, 23 and accompanying text. 82 For a discussion of the U.S. Supreme Court's decision in Zablocki, see supra notes 16, 19-21, 24 and accompanying text. 83 Baehr, 852 P.2d at 56. Skinner involved governmental interference with procreation rights, thus implicating a union capable of procreation, or in other words, a male and female union. 316 U.S. at 541. The language of Zablocki seemed to contemplate
a union of man and woman: "if appellee's right to procreate means anything at all, it must imply some right to enter [into marriage]" 434 U.S. at 386. 84 Baehr, 852 P.2d at 57. 85 Id. at 57 (quoting Griswold v. Connecticut, 381 U.S. 479, 493 (1965), concurring opinion of J. Goldberg). 86 Id. 87 Id. 88 Id. at 57-68. 89 Id. at 58. 90 Id. at 59. Those rights and benefits include income tax, inheritance and child custody benefits. Id. 91 Baehr at 59-60. "Article I, section 5 of the Hawaii Constitution provides in relevant part that '[n]o person shall ... be denied the equal protection of the laws, nor be denied the enjoyment of the person's civil rights or be discriminated against in
the exercise thereof because of race, religion, sex, or ancestry.'(Emphasis added)" Id. at 60.
Note also that the Hawaii Supreme Court made clear that its equal protection analysis did not focus on discrimination because of sexual orientation, it focused on discrimination because of a person's sex. Id. at 53. The court also noted that "homosexual " marriages and "same-sex" marriages are not synonymous. "Parties to a same-sex marriage could theoretically be either homosexuals or heterosexuals." Id. at 51. 92 Id. at 60-63. 93 For a discussion of the Baker decision, see supra notes 39-47 and accompanying text. 94 For a discussion of the DeSanto decision, see supra note 15. 95 Baehr, 852 P.2d at 61. 96 Id. at 61. 97 Id. 98 For a discussion of the Jones decision, see supra notes 48-51 and accompanying text. 99 For a discussion of the Singer decision, see supra notes 52-62 and accompanying text. 100 Baehr, 852 P.2d at 61, 63. 101 Id. at 63 (citing Loving v. Commonwealth of Virginia, 388 U.S. 1, 3 (1967)). 102 Loving, 388 U.S. at 8-12. 103 Baehr, 852 P.2d at 63. 104 Id. at 63-67.
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105 Id. at 63-64. 106 Baehr, 852 P.2d at 60-61. 107 Id. at 64. 108 For a discussion of the Hawaii Supreme Court's decision in Holdman, see supra notes 34-36 and accompanying text. 109 Baehr, 852 P.2d at 64-65 (citing Holdman v. Olim, 581 P.2d 1164, 1167-68 (Haw. 1978)). 110 For a discussion of the U.S. Supreme Court's decision in Frontiero, see supra notes 31-32 and accompanying text. 111 Baehr, 852 P.2d at 66-67 (citing Frontiero v. Richardson, 411 U.S. 677, 679-680, 692, 727 (1973)). 112 Hawaii Const. art. I, Y$3. 113 Baehr, 852 P.2d at 67. 114 Id. Note, the court devoted a concluding section to refuting many of the points raised by the dissent. Id. at 67-68. For further discussion of that section see the critical analysis section of this Note. 115 Id. at 68. 116 Id. at 68-69. 117 Id. at 69. 118 Id. at 70. 119 Id. at 70. After this opinion was published, new evidence was released by the National Institute of Health suggesting a genetic link to sexual orientation. See Boyce Rensberger, Study Links Genes to Homosexuality; NIH Finds Gay Men Share Chromosonal Characteristics, Wash. Post, July 16, 1993, at A1 (discussing results of National Institute of Health study suggesting that gay men may inherit genes that predispose them to be homosexual). 120 Baehr, 852 P.2d at 68-70. 121 Id. at 70. 122 Id. at 70. For a discussion of arguments suggesting that the issue of same-sex marriage is better left to the legislature, see infra notes 134-35 and accompanying text. 123 Baehr, 852 P.2d at 70. 124 Id. The dissent believed that the plurality held that the appellants "have a 'civil right' to same-sex marriage." Id. However, as the plurality stated in a section refuting the dissent, the plurality did not hold that appellants have a "civil right" to same-sex marriage, the plurality simply held that marriage is a basic civil right. Id. at 67. That proposition was relevant to the remainder of the plurality's analysis. Id. 125 Id. at 70-71. 126 Baehr at 71. The earlier same-sex marriage cases were Singer v. Hara supra notes 52-62, Baker v. Nelson supra notes 39-47, Jones v. Hallahan supra notes 48-51, De Santo v. Barnsley supra note 15. 127 Baehr, 852 P.2d at 71. The dissent also stated that Loving does not refute that reasoning. Id. 128 The dissent used the word "gender" instead of "sex" and noted that the U.S. Supreme Court does not recognize sex or gender as a "suspect" classification. Id. But see supra notes 33-34, 112-113 and accompanying text (noting that Frontiero decision hel d that higher level of scrutiny was applicable to sex-based classifications). 129 Baehr, 852 P.2d at 71-72. 130 Id. at 72.
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131 Id. The dissent also claimed that the statute would satisfy the "rational basis" test because it rationally furthers a legitimate state interest. Id. 132 Id. at 72-73 (quoting Singer v. Hara, 522 P.2d 1187, 1195 (Wash. Ct. App. 1974). The Singer court found no invidious discrimination on account of sex because the state's prohibition on same-sex marriage was not based upon appellants' gender, but was "based upon the state's recognition that our society as a whole views marriage as the appropriate and desirable forum for procreation and the rearing of children." 522 P.2d at 1195. The dissent argued, that the purpose of HRS Y$572-1 is also to promote an d protect propagation. Baehr, 852 P.2d at 73. 133 Id. at 73 (quoting Washington v. Fireman's Fund Ins. Cos., 708 P.2d 129, 134 (1985)). 134 Id. at 74. 135 Id. The dissent also pointed out that many municipalities extend such benefits without conferring marriage through domestic partnership ordinances. Id. 136 Id. at 57. 137 The concurrence and dissent both agreed with the majority on this point. Supra notes 79-84, 121. But see Friedman, supra note 38 (arguing that fundamental right to same-sex marriage arises from right to privacy). 138 In this case, the question was only whether or not same-sex marriage is rooted in the traditions and collective conscience of the citizens of Hawaii. According to the Baehr court, it is not. Baehr, 852 P.2d at 57.
Note that there are claims that throughout history various cultures and religions have permitted same-sex marriages. Joan Connell, A National Debate on Homosexuality, Star Tribune, February 10, 1993, at 1E (noting that scholars have discovered evidence that various cultures and religions, including Christianity, have allowed same-sex marriages). 139 Baehr, 852 P.2d at 57-67. 140 Baehr, 852 P.2d at 60 ("Rudimentary principles of statutory construction render manifest the fact that, by its plain language, HRS Y$ 572-1 restricts the marital relation to a male and a female."). 141 See infra notes 140-45. 142 In particular, the dissent notes the argument of the Singer court that marriage by definition only includes members of the opposite sex. Baehr, 852 P.2d at 71. 143 Baehr, 852 P.2d at 74. See also John Leo, Same-Sex Marriages Win a Victory But Portend an Overhaul of Tradition, Language, Common Sense, San Diego Union-Tribune, May 19, 1993 at b7 (arguing that court was judicially legislating and that domestic part nership ordinances are a better approach to the issue). But see Andrew Sullivan, Here Comes the Groom: A Conservative Case for Gay Marriage, New Republic, August 28, 1989 at 20 (noting that domestic partnership ordinances have flaws which are not found i n same-sex marriage). 144 Baehr, 852 P.2d at 68. 145 Furthermore, it would be difficult for a fact-finder to
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answer that question because there is no conclusive evidence at this time. For a discussion of present scientific knowledge on the issue of the biological nature of sexual orientation, see supra
note 121. 146 Baehr, 852 P.2d at 53. The plurality also notes that the biological nature of a person's sexual orientation is also "immaterial to the exercise of 'strict scrutiny' review." Id. 147 Sherry Jacobsen, Hawaii Debates Gay Marriages; State May Recognize Such Unions after Court Ruling, Pair's Bias Suit, Dallas Morning News, September 17, 1993 at 1A (noting that the state legislature is holding hearings to measure public opinion on same-sex marriages). 148 Articles discussing this case have appeared in major newspapers and magazines. See supra notes 1, 37, and infra notes 152, 156, 161. 149 "Several local groups say they will circulate petitions calling for a state constitutional amendment." Dallas Morning News, supra note 147. 150 At present, there are same-sex marriage challenges in Florida and Arizona courts. 151 For a discussion of the relevance of an Equal Rights Amendment to the court's analysis, see supra notes 106-16. 152 For Gays, Wedding Bells May Soon Ring, Newsweek, May 17, 1993 at 62 (noting that under the "strict scrutiny" standard, the same-sex marriage ban will probably fail). 153 Updates, Nat'l L.J., May 17, 1993, at 6. 154 Wash. Post, supra note 39; Sonia Faust is also looking into arguments against same-sex marriages based on "nuclear family, morality issues and other sociological research." Dallas Morning News, supra note 147 ; Commentators have argued that the stat e has a compelling interest in protecting and fostering the marriage institution as a union of man and woman only. See G. Sidney Buchanan, supra note 24 (arguing that recognition of same-sex marriages should not be performed by the judiciary, but instead should be left to the free workings of the political process embodied in the legislature). 155 Dallas Morning News, supra note 147 (noting that implications could extend beyond the Hawaiian islands because of the "Full Faith and Credit Clause" of the U.S. Constitution). 156 The Recorder, supra note 4. 157 Newsweek Poll, supra note 2. 158 "What seems certain is that there would be court battles over recognition of these unions by other states." Dallas Morning News, supra note 147. This article also noted that attempts at recognition of Hawaiian same-sex marriages could cause tension b etween states such as Texas and Hawaii. Id. 159 "Gay rights advocates say they expect years of litigation if agencies and legislatures in other states resist recognizing same-sex Hawaiian marriages." The Recorder, supra note 4. 160 "[A]ny victory for gay rights could trigger a backlash that would make the fight over gays in the military seem tame." Newsweek, supra note 163. 161 Dallas Morning News, supra note 147 (noting that legal experts believe the U.S. Supreme Court will ultimately decide the issue of same-sex marriage).
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