HONOLULU (BP)–Despite a unanimous ruling by the Hawaii Supreme Court Dec. 9 ending an eight-year court battle to legalize same-sex marriage, the cultural battle in the state is likely to continue.
“Every time a same-sex couple is denied a right or benefit granted to a married couple there will be a lawsuit,” promised Dan Foley, a Honolulu civil rights attorney who represented three same-sex couples in a lawsuit that had loomed as precedent-setting, according to the Honolulu Advertiser daily newspaper.
Although Hawaii will not become the first U.S. state to sanction same-sex marriages, Foley told the newspaper that, as he interprets the court ruling, “it is still unconstitutional in Hawaii to deny a right or a benefit to a same-sex couple if mixed-sex couples receive those rights or benefits.”
He conceded, however, “it is clear that the case for same-sex marriage in Hawaii is over,” telling the Advertiser he has no plans to appeal in federal court. Homosexual rights advocates once considered Hawaii one of the places where they were most likely to win legalization of homosexual unions.
According to the Advertiser, the Hawaii Supreme Court ruled that the lawsuit for same-sex marriage was “moot” in light of a constitutional amendment ratified by Hawaii voters by a 2-1 margin in November 1998 authorizing state lawmakers to reserve marriages to opposite-sex couples.
The court’s decision reversed a circuit judge’s 1996 decision — the first in the country, according to the Advertiser — in favor of the three same-sex couples who contended that the marriage laws violated the state constitution’s equal protection provisions. The trial had been ordered in a precedent-setting 1993 Hawaii Supreme Court ruling which reached the same conclusion, unless the state could justify its stance with a “compelling state interest.”
Mike Gabbard, chairman of the Alliance for Traditional Marriage, told the Associated Press after the Dec. 9 ruling, “Thank you to the Hawaii Supreme Court for affirming what we’ve known all along — that marriage, by God’s definition, is between opposite-sex couples.”
Kelly Rosati, director of the Hawaii Family Forum, told the Honolulu Advertiser, “This is a great day for the people of Hawaii and the institution of marriage.”
A key result of the 1993 Hawaii ruling was a flurry of legislation in other states, at least 30 of which passed laws banning homosexual marriages, while Congress passed the Defense of Marriage Act allowing states to ignore same-sex marriages from other states.
The Hawaii Supreme Court, in its Dec. 9 ruling, noted that the 1998 constitutional amendment had placed Hawaii’s 1994 ban of same-sex marriages “on new footing.”
“The new marriage amendment validated [the laws] by taking the statute out of the ambit of the equal protection clause of the Hawaii Constitution … . Accordingly, whether or not in the past it was violative of the equal protection clause … [the law] no longer is,” the court ruled.
One of the plaintiffs, Joseph Melillo, lamented to the Associated Press, “It’s very difficult to see how they arrived at this decision” and called it “a cop-out.”
Alaska became a second hotbed for the issue of same-sex marriage during the 1990s, but in November 1998, voters there also affirmed a constitutional initiative limiting marriage to one man and one woman by a similar 70-percent margin to the Hawaii vote.
Vermont, meanwhile, has become the third major hotbed, with the issue currently pending in the state supreme court.
Same-sex marriage first flared as an issue in 1970 in California, when the Los Angeles county clerk — after receiving numerous inquiries from homosexual couples wanting marriage licenses — requested that the state legislature tighten the law.
From there it spread to court cases: Minnesota (1971), Wisconsin (’72), Kentucky (’73), Washington state (’74), Ohio (’74), Arizona (’75), when the state legislature passed an emergency bill defining marriage as possible only between one man and one woman, Maryland (’75), Washington D.C. (’75) and, in 1977, California again, where one year later legislation was passed that added “between one man and one woman” to the state’s definition of marriage.
Silence for 13 years, except for a 1986 announcement by the American Civil Liberties Union that it would seek to eliminate barriers to same-sex marriage and a 1989 proclamation by the Bar Association of San Francisco calling for the legalization of homosexual marriages.
Legal scrambling for same-sex marriage in the early 1990s that touched Illinois, California and Washington, D.C., gained a sharpened focus when the Hawaii Supreme Court entered the picture in 1993.
Karen L. Willoughby contributed to this article.