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  • Sasha Issenberg

September 10, 1996: Marriage goes on trial in Honolulu

ON THIS DAY IN 1996...

Judge Kevin Chang gaveled Baehr v. Miike to order at 8:33 a.m., marking the first time that the question of same-sex marriage rights had ever come to trial in an American courtroom.

In the early 1970s, there had been a spate of lawsuits in which plaintiffs had challenged state marriage laws as discriminatory, but all had been handled through summary judgments and appeals. When civil-rights attorney Dan Foley sued the state of Hawaii on behalf of three same-sex couples, in May 1991, he hoped to follow a similar path, intentionally avoiding in his brief the inclusion of any facts that the state could contest.

Once the Hawaii Supreme Court two years later ruled in favor of Foley’s clients it made a trial inevitable: the attorney general would have to produce a “compelling state interest” in excluding gay and lesbians from marriage. (Foley’s suit was filed as Baehr v. Lewin, which is how the Supreme Court decision was titled; the case was subsequently renamed Baehr v. Miike to reflect a change in the leadership of Hawaii’s health department, which issues marriage licenses in the state.)

The state put forward several state interests, but at trial focused on justifying the claim that it was protecting the welfare of children because opposite-sex couples made superior parents. To the dismay of social conservative activists, the attorney general’s office — run by the appointee of a Democratic governor in a liberal state — appeared to be intentionally evading arguments about the nature of sexual orientation due to political considerations. The Church of Latter-Day Saints even sued to take over the case for that reason. “Hawaii wasn’t going to have a trial about homosexuality,” says former attorney general Bob Marks.

It was still likely to be an explosive event in a state that prided itself on a spirit of aloha. Ominous letters about the case began arriving in the attorney general’s office before the trial, leading the deputy attorney general handling the case to check his witnesses into a Waikiki hotel under assumed names. A metal detector was erected outside the hallway approaching Chang’s courtroom. Proceedings once had to be postponed due to a bomb threat.

When the trial began, seating reserved for spectators was packed, but by the second day crowds grew sparse. The trial was a pageant of academic sociologists and child psychologists, with a lopsided imbalance favoring Foley’s side, which only needed to undercut the state’s evidence rather than present any of its own. While national interest groups on both sides of the gay-rights debates monitored the courtroom in Hawaii, national media offered scant coverage. One notable exception: Court TV, the five-year old cable network that previously broadcast only criminal proceedings, had a producer present working on a condensed version of the trial that later aired nationally.

There would be many more lawsuits about same-sex marriage over the following two decades of them, but only two of them — from California and Michigan, both in federal court — would end up at trial. In all three instances, defenders of the marital status quo were unable to convince a judge that gays and lesbians should be kept out.


The Engagement:
America's Quarter-Century
Struggle Over Same-Sex Marriage

​By Sasha Issenberg

The riveting story of the battles over gay marriage
in the United States – the most important
civil-rights breakthrough of the new millennium.
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