Same-sex marriage in Hawaii

Baehr v. Miike (originally Baehr v. Lewin) was a case decided by the Supreme Court of Hawaii, which initially found that the state's refusal to grant same-sex couples marriage licenses was discriminatory. In 1991, three same-sex couples sued Hawaii Director of Health John C. Lewin in his official capacity, seeking to force the state to issue them marriage licenses. The couples were Genora Dancel and Ninia Baehr, Joseph Melillo and Pat Lagon, and Tammy Rodrigues and Antoinette Pregil. After the case was dismissed by the trial court, the couples appealed to the state Supreme Court. In the plurality opinion delivered by Chief Justice Ronald Moon in 1993, the court ruled that while the right to privacy in the Hawaii Constitution does not include a fundamental right to same-sex marriage, denying marriage to same-sex couples constituted discrimination based on sex in violation of the right to equal protection guaranteed by the State Constitution. The court remanded the case to the trial court, instructing that "in accordance with the 'strict scrutiny' standard, the burden will rest on Lewin to overcome the presumption that HRS § 572-1 [the state's marriage statute] is unconstitutional by demonstrating that it furthers compelling state interests and is narrowly drawn to avoid unnecessary abridgments of constitutional rights."[2]

In 1996, Judge Kevin S.C. Chang ruled that the state did not meet its evidentiary burden. It did not prove that the state had a compelling interest in denying marriage licenses to same-sex couples and even assuming that it had it had not proven that HRS § 572-1 was narrowly tailored to avoid unnecessary abridgement of constitutional rights. He enjoined the state from refusing to issue marriage licenses to otherwise-qualified same-sex couples.[3] The following day, Chang stayed his ruling, acknowledging the "legally untenable" position couples would be in should the Hawaii Supreme Court reverse him on appeal.[4]

On December 9, 1999, the Hawaii Supreme Court, following the passage of a constitutional amendment empowering the Hawaii State Legislature to limit marriage to opposite-sex couples, ruled that "The passage of the marriage amendment placed HRS § 572-1 on new footing. The marriage amendment validated HRS § 572-1 by taking the statute out of the ambit of the equal protection clause of the Hawaii Constitution, at least insofar as the statute, both on its face and as applied, purported to limit access to the marital status to opposite-sex couples. Accordingly, whether or not in the past it was violative of the equal protection clause in the foregoing respect, HRS § 572-1 no longer is. In light of the marriage amendment, HRS § 572-1 must be given full force and effect." Because the remedy sought by the plaintiffs – access to marriage licenses – was no longer available, this reversed Chang's ruling and remanded the case for entry of judgment in favor of the defendant.[2] As no federal constitutional issues were raised, the case could not be brought to the U.S. Supreme Court.

Following a 1993 decision by the Hawaii Supreme Court that found the state's refusal to grant same-sex couples marriage licenses discriminatory, voters in 1998 approved a constitutional amendment granting the Hawaii State Legislature the power to reserve marriage to opposite-sex couples, which made it impossible to challenge the state's ban on same-sex marriage.[5] The state had enacted a statute defining marriage as an institution for "one man and one woman" in 1994, following the first state court decision that questioned the state's denial of marriage licenses to same-sex couples.[6] Both the statute and the constitutional amendment were passed around the same time as the federal Defense of Marriage Act (DOMA; Hawaiian: Kānāwai Kūpale Male o ka makahiki 1996) was enacted into law by the United States Congress.[7]

Civil unions (Hawaiian: uniona kīwila, pronounced [uniˈjonə tiːˈvilə])[8] were introduced in Hawaii on January 1, 2012, following the passage of legislation in early 2011. These unions provide all of the rights, benefits and responsibilities of marriage at the state level. In 1997, the state established reciprocal beneficiary relationships, open to all couples as well as blood relatives, offering numerous spousal rights including the ability to sue for wrongful death, decisions about health care, proptery rights and co-tenancy, inheritance without a will, and insurance and state pensions.[9]

Bills creating civil unions were considered several times, but failed to receive approval in legislative committees before 2009.[5] In 2010, Hawaii House Bill 444 (HB 444), which would have created civil unions for same-sex and opposite-sex couples, passed the Hawaii House of Representatives and the Hawaii Senate.[10] Governor Linda Lingle vetoed it in July 2010.[11] Following Lingle's veto, the American Civil Liberties Union and Lambda Legal filed Young v. Lingle on behalf of six same-sex couples. The suit, while acknowledging that the state has the constitutional authority to limit marriage to opposite-sex couples, asserted that the State Constitution still mandates that same-sex couples be accorded equal treatment.[12] The suit was withdrawn on March 31, 2011.[13][14]

A bill substantively similar to HB 444, Senate Bill 232, was passed on January 26, 2011 by the Senate Judiciary and Labor Committee in a 3–2 vote,[15] and was passed by the Senate 19–6 on January 28;[16] a modification to the bill was then made in the House of Representatives before passage on February 11 by a vote of 31–19.[17][18] The Senate passed the revised bill on February 16, and Governor Neil Abercrombie signed it into law on February 23. Civil unions began on January 1, 2012.[19]

417 couples obtained a civil union in the first six months after the law went into effect.[20] Low participation may have been the result of technical issues that surrounded the conversion of a reciprocal beneficiary relationship to a civil union. A bill correcting the transitional issues was signed into law on July 6, 2012.[21][22] At the end of 2012, over 700 couples had established civil unions.[23] Since Hawaii enacted same-sex marriage in November 2013, civil unions remain an option for both opposite-sex and same-sex couples to access, making Hawaii one of only four states (Colorado, Illinois and New Jersey being the other three; several other states also recognize domestic partnerships providing many of the benefits of marriage) to allow for this practice.[24]

On December 7, 2011, a same-sex couple filed suit in U.S. district court to obtain marriage licenses in Hawaii, which at that time denied licenses to such couples. The state's denial was based on its marriage laws: Article 1 § 23 of the Hawaii Constitution, which leaves any decision on same-sex marriage to the Hawaii State Legislature, along with (since repealed) HRS § 572-1, which defined marriage only "between a man and a woman." The initial suit was styled Jackson v. Abercrombie, after first-named plaintiff Natasha Jackson and first-named defendant Governor Neil Abercrombie. On January 27, 2012, an amended complaint added plaintiff Gary Bradley, a partner in a same-sex civil union, who wanted to marry but thought it futile to apply. The plaintiffs argued that the marriage laws violated the Due Process Clause and Equal Protection Clause of the U.S. Constitution. Governor Abercrombie agreed with the plaintiffs that the ban violated both clauses of the U.S. Constitution, but the state's Director of Health, Loretta Fuddy, was allowed to defend the ban.[25]

In an order issued on August 8, 2012, U.S. District Court Judge Alan Kay rejected the plaintiffs' claims and granted defendants' motion for summary judgment, upholding Hawaii's ban on same-sex marriage. Judge Kay's ruling became the first court decision to cite the "New Family Structure" research of Mark Regnerus, research discredited by the American Sociological Association as well as thoroughly rejected by the U.S. District Court for the Northern District of California during the Hollingsworth v. Perry trial.[26][27][28]

The plaintiffs in Jackson appealed Judge Kay's ruling to the Ninth Circuit Court of Appeals, now restyled as Jackson v. Fuddy.[29] The appeal was initially scheduled to be heard on a parallel track with a similar Nevada case before the same court, Sevcik v. Sandoval, until both cases were placed on hold, pending Supreme Court decisions in two other same-sex marriage cases, Hollingsworth v. Perry and United States v. Windsor. Those cases were resolved on June 26, 2013, and on November 13, Hawaii enacted the Hawaii Marriage Equality Act, ending its ban on same-sex marriage. Despite that legislation, the plaintiffs did not withdraw their suit as moot, but pressed their appeal seeking to have the lower court's order overturned. The Ninth Circuit heard oral arguments on September 8, 2014, along with Sevcik and another related case, Latta v. Otter, before Judges Stephen Reinhardt, Ronald M. Gould, and Marsha Berzon.[30] The Ninth Circuit announced on October 10, 2014 that it had dismissed the case as moot because of Hawaii's legalization of same-sex marriage and voided the district court's decision.[31]

In January 2013, a bill to legalize same-sex marriage in Hawaii was brought before the State Legislature, but the bill died without legislative action. By September, after both the U.S. Supreme Court decisions in United States v. Windsor and Hollingsworth v. Perry, as well as months of negotiations within the Senate and House Democratic caucuses and with leaders of both chambers of the Legislature, Governor Neil Abercrombie called forth a special session for October 28, with the promise of signing the bill, and the chamber leaderships were confident in having the necessary majority for passage.[32]

The state Senate passed the marriage bill on October 30 by a vote of 20–4,[33] and the House followed by a 30–19 vote on November 8,[34][35] though not before an extensive 'citizens filibuster' attempt to block the bill's progress.[36] The bill returned to the Senate for approval of House amendments which expanded religious exemptions and the Senate provided final legislative approval on November 12, voting 19–4 for passage.[37] Governor Abercrombie signed the bill on November 13,[38] and same-sex couples began marrying on December 2, 2013.[39] The first same-sex couple to marry in Hawaii was Jonipher Kwong and Chris Nelson seconds after midnight on December 2 at the First Unitarian Church in Honolulu.[40] In the first two weeks after the law went into effect, 526 same-sex couples had applied for marriage licenses.[41]

The law makes provisions to recognize same-sex marriages performed in other states and countries:[42]

Marriages between two individuals regardless of gender and legal where contracted shall be held legal in the courts of this State. [HRS § 572-3]

Hawaii Circuit Court Judge Karl Sakamoto heard a legal challenge to the marriage bill filed by Representative Bob McDermott, who contended that the 1998 constitutional amendment prohibited the State Legislature from allowing same-sex marriage. The lawsuit sought to prevent any government official from issuing a marriage license until the question of constitutionality was decided.[43][44] On November 14, Judge Sakamoto ruled that the constitutional amendment in question did not force the State Legislature to define marriage as between one man and one woman,[44] and that it only gave the Legislature the power to reserve marriage for opposite-sex couples if it chose to do so, and that "after all the legal complexity of the court's analysis, the court will conclude that same-sex marriage in Hawaii is legal."[45] The court granted the state's motion to dismiss the lawsuit, McDermott v. Abercrombie, on January 29, 2014.[46] An appeal of the dismissal of the McDermott case was heard in the Hawaii Supreme Court, with oral arguments occurring on December 18, 2014.[47][48][49] On May 27, 2015, following the retitling of the case to McDermott v. Ige, with the election of David Ige as governor, the court ruled that the appellants did not have standing to challenge the constitutionality of the Hawaii Marriage Equality Act.[50][51]

Another challenge, Amsterdam v. Abercrombie, was filed by a Hawaii resident on November 25, 2013. On February 19, 2014, Hawaii District Court Judge Susan Oki Mollway found that the plaintiff lacked standing and dismissed the challenge. In August 2016, the Ninth Circuit Court of Appeals upheld the case's dismissal.[52]