The freedom to marry in Hawaii: A Victory 20 years in the making
November 09, 2013
On November 13, 2013, Governor Neil Abercrombie signed the freedom to marry into law in Hawaii, one day after the Hawaii Senate granted final approval to the marriage bill. The bill signing marks the culmination of a 3-week Special Session in Hawaii devoted to passing the freedom to marry. Same-sex couples will begin marrying on December 2.
It's a joyous day for the freedom to marry - and it's been a long time coming in Hawaii. After all, Hawaii was really where the global movement for the freedom to marry began 20 years ago, when the Hawaii Supreme Court in 1993 became the first appellate in history to rule in favor of same-sex couples and to acknowledge that exclusion from marriage is discrimination and presumptively unconstitutional. The Hawaii case was not the first challenge to the denial of marriage, but it was the first to win a ruling in favor of the freedom to marry. The three couples, and their lawyers, Dan Foley and Evan Wolfson, changed the world – and the impact of the case is still being felt.
"After twenty years of work to win the state where it all started, the Hawaii freedom to marry victory today is especially sweet," Evan Wolfson, Freedom to Marry founder and president said today after the vote. "It also shows how far we have come. The same legislature that in the 1990's passed the first of the anti-gay constitutional amendments now voted resoundingly for the freedom to marry. Like the millions of Americans who have evolved to become the national majority for marriage, Hawaii's leaders opened their hearts and changed their minds, writing this new freedom to marry chapter in America's history of liberty and justice for all."
With Hawaii now – a mere 20 years later! – about to become the 15th state where same-sex couples can marry, we take a look at the far-reaching influence of that very first win 20 years ago, tracking how it has shaped the marriage movement – and how it worked as a catalyst for the strategic vision of Freedom to Marry and its founder, Evan Wolfson.
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In 1990, the plaintiff couples approached Wolfson through fellow activists, asking him to represent them. Wolfson was already known within the movement as the lead proponent of the freedom to marry, starting with his pioneering law school thesis making the case for marriage for same-sex couples (in 1983). When contacted by the couples, Wolfson worked at Lambda Legal, which, like the ACLU and all other gay rights groups at the time, declined to take the case. That led the couples to Dan Foley, a civil rights attorney at a Honolulu firm who had previously worked at the ACLU of Hawaii. Foley, a non-gay ally, husband, and father of two children, was excited to sign on as the attorney in Baehr v. Miike. Several years later, he explained to The Advocate, “My first reaction was that it would be arrogant to deny [gay people] a right I have.” Lambda Legal did allow Wolfson to assist behind the scenes - he submitted an amicus brief to the case, for example (PDF) - and Foley and Wolfson bonded as the case moved forward.
After losing in the lower court (like every marriage case previously, going back to the early 1970s), Foley and the couples went before the Hawaii Supreme Court, which ruled on May 5, 1993 that denying the freedom to marry to same-sex couples violated the equal protection clause of the Hawaii Constitution. Justice Steven Levinson wrote in the majority opinion, “Marriage is a basic civil right,” adding that Hawaii’s failure to extend the freedom to marry to same-sex couples “denies access to the marital status and its concomitant rights and benefits.” The court held that the state must demonstrate sufficient justification – a “compelling state interest” - for its denial of marriage to same-sex couples.
Seizing the ruling as a turning point, Wolfson explained its importance and predicted its transformative impact, calling it “a tectonic shift felt around the world.” He said, “Justice Levinson did not order marriage licenses – but said to the government, ‘If you want to deny something so important to these loving and committed couples in the state, you have to show a reason.’ And the court sent the case back to the trial court to give the state a chance to put up or shut up: Give a reason for this harsh deprivation - or stop it.”
Even then, Justice Levinson understood the serious impact that the sentences he wrote in the majority opinion would have. “This was a first,” he said. “When I first became aware of the appeal, just a couple of days before hearing the oral argument, it was obvious to me that this was the Big One. Cases like this don’t come down the pike very often – you rarely see these kinds of cases that are potentially such game-changers.”
And it truly was a game-changer. The decision ignited the marriage movement in very tangible ways. Foley asked Wolfson to join him as co-counsel in the case, and Lambda cleared Wolfson of all his other cases but one (the Boy Scouts case, argued before the U.S. Supreme Court in 2000). That enabled Wolfson to focus on organizing the National Freedom to Marry Coalition and become, as one paper at the time dubbed him, “the Paul Revere of marriage,” going around the country summoning activists into action with the prophecy “Marriage is Coming.”
Wolfson worked to rally the needed movement response – calling for public education and political organizing to accompany the legal work. He also created coalition calls to action such as the Marriage Resolution, signed by thousands of LGBT groups and allies. The Resolution read: “Because marriage is a basic human right and an individual choice, the State should not interfere with same-gender couples who choose to marry and share fully and equally in the rights, responsibilities, and commitment of civil marriage.”
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Opponents of the freedom to marry also joined together like never before. Anti-gay groups, who had already been working quietly over the previous 40 years to mount a deceptive culture war against gay people, did not want a national discussion about marriage. They did not want to give fair-minded Americans the opportunity to truly reflect on why same-sex couples should no longer be excluded from marriage. They did not want people see that extending marriage protections to same-sex couples harms no one – while denying these protections dramatically harms same-sex couples and their families.
These opponents aimed to shut down all conversation about the freedom to marry for same-sex couples – and their influence extended far beyond their own social circles. Anti-gay forces pushed their harmful talking points that advocated in favor of discrimination - and conservative legislators began repeating the talking points again and again. Soon, marriage was being turned to as a political wedge issue – something to galvanize voters to elect socially conservative candidates.
Legislators in states across the country began introducing bills to restrict marriage to different-sex couples, and nearly all of them passed. These lawmakers saw what was happening in Hawaii – they saw that justice stood on the side of the freedom to marry – and they tried with all of their might to shut down the discussion and cement even deepen discrimination against same-sex couples.
The anti-gay forces’ attacks against the promise of the freedom to marry didn’t stop at the state level. As an election-year tactic, anti-gay activists and members of Congress pushed support for the so-called “Defense of Marriage Act” (DOMA). The bill sought to deny legally married same-sex couples all of the federal protections of marriage. At the time, of course, same-sex couples could not legally marry in any U.S. state – but the measure proposed that even if states such as Hawaii did begin to issue marriage licenses, married couples who are gay or lesbian would be denied any federal respect for their marriage, shut out of the 1,138+ federal protections and responsibilities that marriage entails.
On September 10, 1996, the U.S. Senate followed the House of Representatives’ earlier action by passing DOMA and sending it to President Clinton’s desk. It was a huge blow to fairness in the United States, creating a caste system of first-class and second-class marriages – and it flew in the face of so many American ideals and values. Wolfson declared that the law would not stand, and would not stop the work to win the freedom to marry. (Read more about how DOMA was passed in this exemplary Metro Weekly series)
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Indeed, on the very same, however, Hawaii state court Judge Kevin Chang gaveled to order the world’s first-ever full-fledged trial on the freedom to marry.
For months, co-counsels Foley and Wolfson had prepared their case – and now, even in the face of such an intense national discussion on marriage, they had an unprecedented opportunity to demonstrate the importance of the freedom to marry and expose – in the courtroom and on Court TV - that there is no good reason for gay couples’ exclusion.
During the trial, Foley and Wolfson called national experts in adoption and child-raising to testify and combat testimony from the anti-gay side in Baehr, which tried to suggest that same-sex couples and their families were less "optimal" than different-sex couples and thus less entitled to equality. Anti-gay forces have, notably, been unable to come up with any other reasons to defend the denial of marriage in the 17 years since the Baehr trial. These arguments that same-sex couples marrying harms children or that gay and lesbian people are unfit to be parents – claims that have been refuted by leading sociological organizations again and again in the past two decades – were also the crux of the argument in the Perry case challenging California’s Proposition 8 fourteen years after the historic Hawaii trial.
On December 3, 1996, following months of witness testimony and cross-examination, briefing, and argument, Judge Chang issued his historic ruling. The court agreed with the couples, Foley, and Wolfson that there was no good reason to deny same-sex couples the freedom to marry. The ruling found that same-sex couples have the potential to raise happy, well-adjusted children; that gay and lesbian people can be just as fit and loving parents as non-gay people; and that in Hawai and around the world, same-sex couples are already sharing in successful, committed relationships.
“Most importantly,” Wolfson wrote in his groundbreaking book Why Marriage Matters, “Their role as parents, their ability to care for their children, and the well-being of their kids are only strengthened when they have the freedom to marry.”
The decision was poised to serve as a precedent for marriage cases across the country – and, indeed, the 1996 decision has been referenced many times in the 17 years since Judge Chang’s ruling. But anti-gay forces, more nervous than ever about the historic nature of the steps forward in Hawaii, again worked to prevent the courts from finishing the job.
“The case went back up on appeal as Hawaii challenged the ruling, and we were prepared to argue the ruling to Justice Levinson,” Wolfson said. “Dan and I were armed with Judge Chang’s careful reasoning based on the evidence, and we were ready. But before the Hawaii Supreme Court could hand down what most of the country expected to happen – looking at the record and the evidence, having been forced to think it through – the anti-gay forces, primarily fueling from outside the state, mounted a campaign to amend the Hawaii constitution to remove the guarantee of the equal protection clause from the denial of marriage, to prevent the courts from doing their job, and to snatch away the freedom to marry that shimmered within our reach.”
On November 3, 1998, the Hawaii voters were stampeded into passing a constitutional amendment allowing the legislature – but not the courts – to rule on the freedom to marry. One year later, in December 1999, the Hawaii marriage case came to an end: The court held that, notwithstanding the constitutional command of equal protection for all, its hands were tied.
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After the trial and the destructive impact of the 1998 constitutional amendment in Hawaii, Wolfson continued fighting for same-sex couples first as Marriage Director of Lambda Legal, and then, once the next case in Vermont led to civil union but not yet marriage itself, by shaping a new national campaign. Following his Supreme Court argument in the Boy Scouts case and the signing into law of civil union, Wolfson left Lambda in 2001 to explore the next steps for the marriage movement through a planning grant from the Evelyn & Walter Haas, Jr. Fund.
“I took that special opportunity to confer with diverse leaders and organizations around the country, seek out new strategies, resources, and voices, and - as Lincoln put it - ‘think anew’ about how best to advance the needed sustained campaign to secure the freedom to marry,” Wolfson said.
Building on the successes and limitations of the Hawaii-Vermont chapter, Wolfson worked to create the “sustained affirmative campaign” that would shepherd a successful national strategy and collaborative approach to get the job done.
In 2003, when he officially launched Freedom to Marry, this vision became the backbone of the campaign – the Roadmap to Victory. The Roadmap is simple and strategic: Drawing on the history of social movements in the United States, we must make the case before the United States Supreme Court that there is no good reason for same-sex couples to be denied the freedom to marry. We must create the climate for the Supreme Court to rule in our favor by winning marriage in a critical mass of states, demonstrating undeniable public support for marriage, and fully ending federal marriage discrimination.
Since 2003, the marriage movement has been on that Roadmap to Victory – and in the past ten years, we have learned from our struggles and turned them into successes.
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Since its founding, Freedom to Marry has expanded to 25 full-time staff and has served as the architect of the marriage movement, providing leadership in messaging and public education about why marriage matters, stepping into the vanguard of organizing through strategic digital action, and, critically, fueling the campaign to win as one of the largest funders of this work.
The campaign has celebrated huge victories – wins for the freedom to marry in now 16 states (with the Illinois Governor scheduled to sign a marriage bill later this month), momentous and unprecedented growth in public support for marriage, and a dismantling of the core of federal marriage discrimination at the U.S. Supreme Court. And Freedom to Marry is working to turn that momentum and its winning strategy into the work to finish the job.
All of the victories – all of the progress along each of the tracks of the Roadmap – ties back to that historic decision in Hawaii in 1993. And now, twenty years later, Hawaii – the state where it all started – is finally joining the many other states and 18 countries on five continents that have secured the freedom to marry to all. It’s an important moment of reflection for many – and for Evan Wolfson, it’s a testament to 20 years of tireless work, contributions and conversations bringing so many more into the cause, and belief in the power of change.
"In 2013 we've won the freedom to marry in our nation's first state and its 50th," Wolfson said, referencing victory in Delaware earlier this year and today's win in Hawaii. "We will keep going until we win the freedom to marry nationwide - and, happily, it won't take another 20 years. Aloha, freedom to marry!"