Today in 1996: Hawaiian Judge Ruled Same-Sex Couples Have Right to Marry--Kinda

Hawaiians finally get same-sex marriage in 2013 // Hugh Gentry / Reuters

Baehr v. Miike (originally Baehr v. Lewin) was a lawsuit in which three same-sex couples argued that Hawaii's prohibition of same-sex marriage violated the state constitution. Today, December 3rd, in 1996, as a result of this case, a judge ruled that the state had not established any compelling interest in denying same-sex couples the ability to marry.  He instructed the state to issue marriage licenses to otherwise-qualified same-sex couples. Sadly, that never happened.

On December 17, 1990, three same-sex couples applied for marriage licenses at the Hawaii Department of Health. The three couples met the requirements of the state law that detailed eligibility requirements for marriage, except for being of the same sex. On April 12, 1991, the Department of Health denied the license applications. On May 1 the couples initiated their lawsuit, Baehr v. Lewin, seeking to have the same-sex exclusion declared unconstitutional.

Eventually, beginning on September 10, 1996, Judge Kevin S.C. Chang conducted the trial in the case of Baehr v. Miike. Hawaii put forth five state interests it claimed were sufficiently "compelling" to allow it to bar same-sex couples from marrying. These interests were:

• protecting the health and welfare of children and other persons
• fostering procreation within a marital setting
• securing or assuring recognition of Hawaii marriages in other jurisdictions
• protecting the State's public fisc from the reasonably foreseeable effects of State approval of same-sex marriage in the laws of Hawaii and
• protecting civil liberties, including the reasonably foreseeable effects of State approval of same-sex marriages, on its citizens.

The state called four expert witnesses with specialties in psychology and sociology. The plaintiffs also called four expert witnesses with specialties in psychology, sociology and child development. 

On December 3, 1996, Judge Chang ruled that the state had not established any compelling interest in denying same-sex couples the ability to marry and that, even if it had, it failed to prove that the Hawaii statute was narrowly tailored to avoid unnecessary abridgement of constitutional rights. He instructed the state to issue marriage licenses to otherwise-qualified same-sex couples. 

The following day Chang stayed his ruling, acknowledging the "legally untenable" position couples would be in should the Supreme Court reverse him on appeal.

On November 3, 1998, Hawaii voters approved an amendment to the state constitution that allowed the state "to reserve marriage to opposite-sex couples." On December 9, 1999, the state Supreme Court ruled that the marriage amendment removed the plaintiffs' legal objections to the state's eligibility requirements for marriage and definition of marriage. The Court reversed Chang's ruling and remanded the case for entry of judgment in favor of the defendant.

As Congress considered passing the Defense of Marriage Act (DOMA), the House Judiciary Committee's Report on the legislation in 1996 discussed the implications of the Baehr case at length and argued for passage because "a redefinition of marriage in Hawaii to include homosexual couples could make such couples eligible for a whole range of federal rights and benefits." 

On November 13, 2013, Governor Neil Abercrombie signed the freedom to marry into law in Hawaii, one day after the Hawaii Senate granted final approval to the marriage bill. The bill signing marks the culmination of a 3-week Special Session in Hawaii devoted to passing the freedom to marry. Same-sex couples were able to finally begin marrying on December 2, 2013, becoming the 16th state to do so.