Gay Rites

Hawaii may soon become the first state to recognize same-sex marriages. But some gay leaders suggest a go-slow policy of "domestic partnerships" might be better.

On January 30, 1995, Evan Wolfson, a lawyer for the Lambda Legal Defense and Education Fund, put the question to a room full of leaders of various grassroots lesbian and gay organizations in Los Angeles: What do we do about Hawaii?

Most people don't view Hawaii as any sort of problem, but that's about to change. The issue that has been lurking at the fringes of American public policy debate since the inception of the gay rights movement is now ready to take furious bloom, with its roots in the tropical paradise. Like it or not, Wolfson said, Hawaii is about to launch the country into a raging controversy over same-sex marriage.

The only thing homosexual leaders can do, he told the crowd, is prepare for the pandemonium by getting all their arguments in order. By devising a campaign of public information and reasoned conviction, he suggested, lesbians and gay men can avoid the chaos they confronted when Bill Clinton pressed the issue of gays in the military before gay leaders had a chance to get their ducks in a row.

The stage is certainly set for this debate. In Baehr v. Lewin, the Hawaii Supreme Court ruled that under the state constitution, it appeared that any denial of the right of same-sex couples to marry one another could not stand. Because the decision is not based on any federal constitutional rights, the Hawaii Supreme Court will have the final word in this case, with no appeal to or review by the U.S. Supreme Court possible. The court ultimately ordered a trial on the question of whether the state could show a compelling interest that would permit opposite-sex couples to marry while denying that right to same-sex couples.

Under well-settled law, a "compelling interest" must be more than just a good reason—it is the highest level of court scrutiny laws are subject to, and the most difficult for them to survive. That trial is now set for July 1996, and Wolfson is convinced, with good reason, that legal precedent indicates the state will lose. Dan Foley, his co-counsel in Hawaii, is equally certain of a trial court victory. Their efforts could make Hawaii the first state in the country to permit same-sex marriage.

On the other hand, little more than a week before Wolfson addressed the packed room in Los Angeles, the District of Columbia Court of Appeals ruled the opposite way. In Dean v. District of Columbia, the federal court said that a D.C. opposite-sex­-only marriage ordinance did not violate any of the statutory or constitutional rights a same-sex couple asserted. Neither the Hawaii decision nor the D.C. one was easy: Each divided up three ways, with judges falling all over the ideological map. The D.C. decision ran to 57 pages, the Hawaii decision to just under 30.

Other cases that raise similar questions are already moving through the system nationally. The most compelling is in Georgia, where Robin Shahar, a deputy district attorney in Atlanta, was fired from her job after she had a religious ceremony blessing her same-sex union. A trial court ruled that under Georgia law that was sufficient evidence to fire her, and the case is currently on appeal.

Shahar's case is important because it illustrates how profoundly marriage intertwines legal and religious issues. Even conservative Christians might recognize in Shahar's lawsuit a straightforward punishment by the state for engaging in an exercise of religion. The ceremony she and her partner engaged in was purely religious, and did not involve the sort of civil marriage that is at issue in Hawaii and the District of Columbia. If you can get fired for having a marriage ceremony in your own church which your government finds distasteful, what other kinds of religious ceremonies might states want to punish people for?

No one really believes for a moment, though, that the Christian Coalition would rush to defend the religious rights of same-sex couples. Indeed, just the opposite is true. Shahar's case seems to have stymied most conservative leaders, while the Hawaii situation has put the religious right into an uproar, with the predictable fundraising appeals already in the mail. Pat Robertson's 700 Club is distributing a "fact sheet" which alerts its members that what's going on in Hawaii "forewarns the inevitable downfall of America."

Lesbians and gay men view Hawaii somewhat differently. If the plaintiffs win there in July, trips to Honolulu for gay marriages will become as much the rage as trips to Reno used to be for straight divorces. And the impact won't be limited to the Aloha state, either. The U.S. Constitution's Full Faith and Credit Clause requires states to recognize the judicial acts and proceedings of fellow states, and marriage has long been one of the core proceedings that is entitled to interjurisdictional acceptance. So a single state that recognizes same-sex marriages opens up the debate across the country. (Under certain limited and very rare circumstances, though, a state may refuse to recognize a marriage legal in another state. The Hawaii situation has prompted preemptive legislative efforts in Utah, Alaska, and South Dakota to deny legal recognition to out-of-state same-sex marriages with some successes.)

There's more: Nearly a thousand federal statutes use the term spouse or marriage, usually deferring to state law on how those terms are defined. Unless those laws are changed, the federal government might find itself recognizing homosexual marriages and having to answer to the electorate. Few Democrats and fewer Republicans could defend same-sex marriage without raising electoral eyebrows.

In one sense, the furor these cases will arouse is another manifestation of a debate that's been around for years. Fears of same-sex marriage were part of what made the national debate over the ERA so absurdly colorful two decades ago. Yet prior to 1994, only four reported court cases dealt head-on with same-sex marriage—three in the early '70s and one in 1984.

All dismissed the marriage claims briefly, using language similar to this 1973 decision out of Kentucky: "[M]arriage has always been considered as a union of a man and a woman....It appears to us that appellants are prevented from marrying, not by the statutes of Kentucky or the refusal of the County Clerk... to issue them a license, but rather by their own incapability of entering into a marriage as that term is defined....In substance, the relationship proposed by the appellants does not authorize the issuance of a marriage license because what they propose is not a marriage."

The Hawaii Supreme Court found such arguments circular. Its plurality noted that the question comes down to competing definitions of marriage: Is marriage defined as the union of two persons, or is it the union of two persons of opposite sexes? If you think the second definition is the proper one, same-sex couples are making a frivolous claim because they are defying a definition as inalterable as the law of gravity. If you choose the first definition, however, same-sex couples may or may not be entitled to marry one another, depending on what you view as the underlying purposes of civil marriage.

Same-sex couples contend that among the most important purposes of marriage is encourage ment of the mutual support, care, and affection that publicly committed partners make to one another, and that same-sex couples' commitments are as important to social stability and order as the commit ments of opposite-sex couples.

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