Key players look back almost 30 years after Hawaii same-sex ruling

Feb. 14—Thirty years ago, Hawaii Supreme Court Associate Justice Steven Levinson wrote the decision that moved Hawaii, and the nation, closer to marriage equality : To deny same-sex couples the right to marry went against the state Constitution, Levinson wrote, and the state must allow it, without any compelling reason not to.

Thirty years ago, Hawaii Supreme Court Associate Justice Steven Levinson wrote the decision that moved Hawaii, and the nation, closer to marriage equality : To deny same-sex couples the right to marry went against the state Constitution, Levinson wrote, and the state must allow it, without any compelling reason not to. Three years later, Circuit Judge Kevin Chang ruled that the state had no such compelling reason.

On Monday, three months shy of the 30th anniversary of Levinson's decision, politicians, lawyers and advocates gathered at the state Capitol to honor the work of Levinson, Chang and Dan Foley, the lawyer who brought the case that started it all.

The air in the basement of the Capitol was celebratory, with free Starbucks coffee, cookies and ACLU Hawaii tote bags. Levinson, now retired, and Foley, who retired from a career as a judge on the Intermediate Court of Appeals, were decked in lei. Chang sported a single orchid loop. The room was not packed, as just over a dozen state representatives and senators showed up, plus a number of advocates and onlookers.

"Younger generations sometimes lose sight of what led to a movement or what led to the rights that we enjoy today, " said House Speaker Scott Saiki, who emceed the event. "And I think that has actually happened here in Hawaii with the marriage issue."

The case began when three couples—two lesbian, one gay—applied for marriage licenses with the state Department of Health, which rejected them. Eventually, Levinson's ruling would set off convulsions across the nation, with state legislatures reacting by limiting marriage to one man and one woman. "The prospect of permitting homosexual couples to 'marry' in Hawaii threatens to have very real consequences both on federal law and on the laws (especially the marriage laws ) of the various States, " a House Judiciary declared in 1996. Later that year, President Bill Clinton signed the Defense of Marriage Act, limiting it to a man and a woman.

Foley's clients came to him because they had no money, he said. Foley filed suit—Baehr v. Lewin—in 1991 in state court, which dismissed the case. He appealed to the Hawaii Supreme Court, which heard the case in 1992.

Levinson had only recently been confirmed to the Hawaii Supreme Court. During his confirmation hearing, he went before the short-lived Senate Executive Appointments Committee, where the chair asked a question that caught him by surprise : "What is your opinion of the equal protection of the laws for gay and lesbian people ?" Levinson recalled. "I said, 'Well, I believe in the equal protection of the laws for everybody, including gay and lesbian people.' And that was the end of that, " he said.

At that time, Levinson didn't know the Baehr v. Lewin case was likely to come before the Hawaii Supreme Court. Once he was confirmed, he got the calendar for the year, and there it was.

"I didn't pursue that further until several days before the oral argument, " Levinson said, when one of his law clerks sent him a briefing on the case. "I realized that this was an appeal, a legal issue that did not fall out of the sky every day. In fact, it was obvious to me that this was a once-in-a-lifetime thing, " he said.

Jim Burns, chief judge of the Intermediate Court of Appeals just below the Supreme Court, was filling in for Chief Justice Herman Lum. Burns questioned the deputy attorney general, Foley recalled. "He said, 'A man and a woman come into the Department of Health Services and apply for a marriage license, you give it to them, don't you ?' And she said, 'Yes.' He said, 'But a man and a man and a woman and a woman come into that department and apply for a marriage license, you don't give it to them, do you ? She said, 'No, '" Foley remembered. "And he said, 'That's discrimination.' And the hair on my arms just stood up, and I said, 'Holy s—, they're going to take this case seriously, '" Foley said.

Levinson was eager to write the court's opinion in the case, so he asked his "oldest legal friend " and role model, Acting Chief Justice Ronald Moon, to let him. The court found that the Circuit Court erred in dismissing the case, requiring that it hear it again. "That's the most important thing I've ever done in my life. I'm tremendously proud of it, " Levinson said.

So it went to the court of Chang, the circuit judge.

"Because emotions were so high, " Saiki said, "there were security issues."

Chang found that the state's prohibition of same-sex marriage was unconstitutional and that the DOH couldn't deny a same-sex couple a marriage license.

"He does not get credit for what he did to advance this cause, " Saiki said.

Saiki handed a certificate to Chang, who took the stage in a blue aloha shirt and jeans.

But like Levinson's ruling before, Chang's decision brought its own backlash.

"It was his ruling that actually triggered the Legislature to propose the constitutional amendment that was adopted in 1998 to allow the Legislature to restrict marriage, " Saiki said.

A Hawaii Supreme Court ruling the next year rendered Levinson's ruling toothless. It would take more than another dozen years before the state, after 14 other states, legalized same-sex marriage in 2013.

TIMELINE OF EVENTS 1990—Hawaii hosts its first gay pride parade, founded by the late Honolulu civil rights activist Bill Woods. Woods wants to organize a mass commitment ceremony for gay couples but instead asks Joseph Melillo and Patrick Lagon, Ninia Baehr and Genora Dancel, and Antoinette Pregil and Tammy Rodrigues to apply for marriage licenses.

1991—The couples, in Baehr v. Lewin, sue the state for the right to marry, and the Circuit Court rules against them. The case goes to the Hawaii Supreme Court.

1993—Now-retired Hawaii Supreme Court Associate Justice Steven Levinson, right, writes a decision in the Baehr case that shocks the nation : Denying same-sex partners the right to marry violates equal protection rights afforded by the state constitution. Levinson rules that the state has to allow same-sex marriages unless it can provide compelling interest as to why it shouldn't, which sends the case back to Circuit Court.

1996—The federal government passes the Defense of Marriage Act defining marriage as a heterosexual union.—Circuit Judge Kevin Chang rules that the state did not present compelling interest to ban same-sex marriage in its argument that children are better off raised by opposite-sex parents.

1998—Nearly 70 % of people who head to the polls pass a constitutional amendment giving state lawmakers the power to reserve marriage for a man and a woman.

1999—The Hawaii Supreme Court rules that the constitutional amendment makes the earlier Baehr v. Lewin decision moot.

2004—Massachusetts becomes the first state to legalize same-sex marriage after its Supreme Court rules that a same-sex marriage ban violates the state's constitution. It becomes only the seventh jurisdiction in the world to do so, behind the Netherlands, Belgium and four Canadian provinces.—Hawaii's House Judiciary Committee agrees to hear a civil-unions bill that was introduced the previous year, but defers it.

2005-2008—Civil-union bills are introduced at the Capitol but aren't heard or don't make it out of committee.

2009—House Bill 444 becomes the first civil-unions bill to make it out of committee, passing the House but stalling on the Senate floor.

2010—The Senate passes House Bill 444 and sends it back to the House for final approval. The House votes to postpone action indefinitely for the session but on the last day reconsiders and passes it. Gov. Linda Lingle vetoes the bill.

2011—Civil-union legislation, Senate Bill 232, sails through the Senate and House and is signed by Gov. Neil Abercrombie in February. Civil unions are set to become legal the following January.—In December, Natasha N. Jackson and Janin Kleid file a lawsuit against Abercrombie and state Health Director Loretta J. Fuddy claiming the 1998 amendment and the state's declaration that marriage "shall be only between a man and a woman " violate the due process and equal protection clauses in the U.S. Constitution.

2012—Civil unions are offered starting Jan. 1.—In August a federal district judge rules in favor of the state in the Jackson v. Abercrombie case. The plaintiffs appeal, but the 9th Circuit Court of Appeals stalls the case, anticipating that Hawaii might pass a same-sex marriage law.

2013—The Legislature decides not to take up same-sex marriage bills. Supporters hint that the state is awaiting U.S. Supreme Court rulings.—In June the U.S. Supreme Court strikes down a section of the Defense of Marriage Act that restricted marriage to a union between a man and a woman.—In September, Abercrombie calls Senate and House members into special session.—After a 12-hour hearing in the Senate and more than 55 hours of public testimony in the House, senators give Senate Bill 1 the final stamp of approval needed to send it to the governor's desk.—Abercrombie is expected to sign the bill, and same-sex couples would be able to apply for marriage licenses Dec. 2.