Hawaii Court Says Discrimination Against Same-Sex Marriage Unconstitutional
by Deb Taylor, and internet reports

U.S. history saw a first on December 3, 1996, as a Hawaii court ruled that civil marriage law cannot discriminate against gay and lesbian couples.

Dan Foley, through the Hawaii Equal Rights Marriage Project, and Evan Wolfson of the Lambda Legal Defense and Education Fund, co-presented the case for two lesbian couples and one gay male couple seeking civil marriage licenses in Hawaii.

"This is a historic moment for lesbians and gay men," said Lambda Marriage Project Director Evan Wolfson. "When required at our trial to justify its discriminatory marriage law, the government couldn't do it. The court today agreed that there is no compelling or logical reason for discriminating against lesbian and gay couples," Wolfson said.

The three couples, Ninia Baehr and Genora Dancel, Pat Lagon and Joseph Melillo, and Antoinette Pregil and Tammy Rodrigues, were denied marriage licenses by the state Department of Health in late 1990. In 1991, they jointly filed a lawsuit alleging the denial was unconstitutional and eventually the case was appealed to the Hawaii Supreme Court.

In 1993, the state Supreme Court ruled that, under Hawaii's Constitution (the Hawaii constitution forbids sex discrimination, the so-called Equal Rights Amendment that failed to become part of the federal constitution over ten years ago), allowing civil marriage licenses only for opposite-sex couples and not for same-sex couples is sex discrimination. The court ordered the state to show what "compelling" interest justifies such discrimination in civil marriage.

Judge Chang of the First Circuit Court of Hawaii heard the case at a nine-day, bench trial, September 10-20, 1996. Deputy state Attorney General Rich Eichor argued on behalf of Director Lawrence Miike of the state Department of Health, which has jurisdiction over marriage licenses. The state failed to effectively show that a compelling interest existed to justify same-sex civil marriage discrimination.

As expected, on December 4, 1996, Deputy Attorney General Eichor requested that Judge Chang "stay" his decision, pending an appeal of the decision to Hawaii's Supreme Court. Judge Chang issued the stay, because he didn't want to have to undo marriages should he be over-ruled. Deputy Eichor admitted in court that being over-ruled was unlikely. In fact, a state attorney conceded that the chances of convincing the Hawaii Supreme Court to overturn Circuit Judge Kevin Chang's ruling are poor. Legal observers were more blunt. The state, they predicted, will lose.

For more information on the Hawaii civil marriage case, see More on the Hawaii Same-Sex Civil Marriage Case.

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