In Brief: The 20-Year Itch

From August 2010 eNews

A feeling of celebration is in the air. Yesterday, U.S. District Chief Judge Vaughn Walker handed down a powerfully worded decision striking down California's Proposition 8, writing, "A private moral view that same-sex couples are inferior to opposite-sex couples is not a proper basis for legislation." He added that the evidence was "overwhelming" that Prop 8 violated due process and equal protection rights.

It echoed a clarion clear ruling made nearly two decades ago, when Hawai`i—the last state to join the union—appeared likely to become the first to legalize what, at the time, seemed inconceivable to many if not most Americans: marriage for same-sex couples.

In 1993, Hawai`i's highest court, in a case Lambda Legal had joined as amicus, ruled that denying gay couples the right to marry constituted sex-based discrimination as a matter of law. The court demanded Hawai`i prove at trial that its discriminatory policy served a compelling state interest as a factual matter.

At that point in the fight, Lambda Legal became co-counsel for plaintiffs in the case. Later renamed Baehr v. Miike, the case, in effect, was the opening salvo in the contemporary right-to-marry movement worldwide.

The circuit court held a trial at which we presented expert testimony showing conclusively that the state's now too-familiar arguments about the purported needs of children lacked merit. But before we, co-counsel and our plaintiffs had a chance to seal the deal in the Hawaii high court, anti-equality forces and dollars flooded the state. Legislators approved a constitutional amendment, subject to voter approval, reserving for the legislature the right to limit marriage to different-sex couples. In 1998, the majority of Hawai`i's voters concurred.

What happened in Hawai`i proved a devastatingly effective model for our opposition, with so-called "defense of marriage" laws and constitutional amendments proliferating in state after state, inappropriately inviting popular majorities to vote on whether or not we should have the same family rights others take for granted. Perhaps the most notable of these has been Prop 8, passed in 2008 in California, home to more than 100,000 same-sex couples according to the 2005 U.S. Census, roughly 18,000 of whom had married legally before a slim majority of voters slammed the door.

Nevertheless, legal advocacy, community-building and education—not to mention enormous stores of courage and patience—are all turning the tide. In 10 countries around the world and six jurisdictions within our borders, same-sex couples can now experience the joys, challenges, rights and responsibilities that come with getting married. In California, our opponents have vowed to appeal Judge Walker's decision to the Ninth Circuit Court of Appeals, and to the U.S. Supreme Court if they lose again.

Meanwhile, we have come full circle, returning to Hawai`i to demand increased respect and crucially needed protections for the state's same-sex couples and their children. On July 29, we launched Young v. Lingle, a new suit seeking civil union status for gay couples, just weeks after Hawai`i's governor vetoed a bill, passed in both houses of the legislature, that would have given it to them. Civil union status—the best we can pursue through the Hawai`i courts given that state's constitution—is not equal to marriage. But it would be a significant improvement over the only status currently available to lesbian and gay couples in the Aloha state, that of "reciprocal beneficiaries."

At our press conference, our plaintiff couples spoke eloquently and passionately about why "better than nothing" is not nearly good enough for their families. Lambda Legal is there again, with co-counsel from the ACLU of Hawai`i and Alston Hunt Floyd & Ing, working hard to make sure that Hawai`i's couples and their children at least can have a full set of legal protections, which their full measure of love, sacrifice and courage more than deserve.