ON THIS DAY IN 1991…
Attorney Dan Foley sued the state of Hawaii on behalf of three same-sex couples who had been denied marriage licenses the previous December.
They had requested the marriage licenses from the Hawaii Department of Public Health as part of little more than a public-relations stunt, engineered by activist Bill Woods with the goal of forcing the state affiliate of the American Civil Liberties Union to take up the issue of marriage rights. The ACLU didn’t fall for Woods’s gambit, and the next month he handed his six charges off to Foley, a civil-rights litigator he hoped would take up their case.
Given that the U.S. Supreme Court had five years earlier ruled that states were free to ban gay sex, Foley drafted Baehr v. Lewin to ensure it could never find its way into the federal judiciary. (The lead plaintiff, Ninia Baehr, hoped to marry her girlfriend, Genora Dancel; the defendant, John Lewin, was the state public-health director.) He claimed that the state’s exclusion of same-sex couples from marriage violated multiple provisions of the state constitution: its due-process and equal-protection guarantees, which appear alongside an explicitly granted right to privacy. Foley structured his initial complaint so that it would move quickly through trial court and permit the Hawaii Supreme Court to rule on the constitutional questions.
When he filed Baehr v. Lewin, Foley was pessimistic that the justices would go farther than any other American judge had by recognizing the claims of gays and lesbians to marry. But a dramatic and unforeseen turn of events within the five-member panel would soon make it a court like no other in the country.
