- Sasha Issenberg
May 5, 1993: Hawaii Supreme Court rules for gay marriage
ON THIS DAY IN 1993…
The Hawaii Supreme Court ruled that denying same-sex couples the right to marry amounted to a form of unconstitutional discrimination.
The Baehr v. Lewin suit had begun in December 1990, with a public-relations stunt in which three same-sex couples requested marriage licenses from the Hawaii Department of Public Health. After they were denied, with the attorney general ruling that the state’s marriage code had been drafted only to apply to one man and one woman, the couples retained a local civil-rights attorney to challenge their exclusion under multiple provisions of the Hawaii Constitution. In October 1992, after an expected loss in trial court, his lawsuit reached the Hawaii Supreme Court on appeal.
The five-member court determined that the denial of marriage licenses interfered with the guarantee of equal protection on the basis of sex, which had been explicitly prohibited in a 1978 constitutional convention. It marked the first time that any court on earth had acknowledged that a fundamental right to marriage could extend to gay couples.
The Baehr v. Lewin decision did not immediately permit same-sex couples to marry, however. As Justice Steven Levinson wrote in the majority opinion, the matter would have to be settled at a trial where the burden shifted to the state. There the attorney general’s office would have to demonstrate that the law limiting marriage to opposite-sex couples advanced a “compelling” state interest — a high standard that appeared difficult if not impossible to meet.