How three same-sex couples helped change marriage law in Hawaii

HONOLULU (HawaiiNewsNow) – Nearly 36 years ago, the Hawaiʻi Department of Health received an unprecedented request: marriage license applications from three same-sex couples, including Ninia Baehr and Genora Dancel.

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“Same-sex marriage was not legal anywhere in the world, in any jurisdiction. We were not professional activists and we didn’t have a ton of support,” Baehr said.

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Request denied

Then-state health director Dr. Jack Lewin explained Hawaiʻi law required couples to obtain permission from the Department of Health, along with a blood test and other requirements.

Lewin said, “While I supported them in their quest to live together, it was not legal. So we had to deny their request.”

The couples sued the state in a case known as Baehr v. Lewin.

Baehr and Dancel hired civil rights attorney Dan Foley.

“When I took the case, I told the three couples I didn’t think they would prevail,” Foley said. “No state, no country in the world had same-sex marriage. And as far as the law, the U.S. Supreme Court had ruled just five years earlier, you can criminalize same-sex unions. That’s hardly a situation where you get a marriage license.”

Hawaiʻi Supreme Court ruling and setbacks

The lawsuit was dismissed in 1991, and the couples appealed to the Hawaiʻi Supreme Court.

The court ruled that same-sex couples had the right to marry unless the state had a compelling reason to deny that right. In 1996, Circuit Court Judge Kevin Chang found no compelling state interest.

Despite that, there were setbacks.

Foley said the court stayed its decisions while the state appealed, so they did not take effect.

The ruling prompted constitutional debates. Congress passed the federal Defense of Marriage Act in 1996, limiting federal recognition of marriage to straight couples.

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In 1998, Hawaiʻi voters approved a state constitutional amendment banning same-sex marriage.

“People were arguing if you have same-sex marriage, the sky will fall. Traditional marriage will be destroyed. Religious liberty will be destroyed, children will be harmed, et cetera, et cetera,” Foley said.

Foley added that voters had only Chang’s findings that those claims were baseless before the November 1998 vote.

Hawaiʻi legalizes same-sex marriage

On Nov. 13, 2013, Gov. Neil Abercrombie signed the Hawaiʻi Marriage Equality Act into law. It took effect Dec. 2, 2013, making Hawaiʻi the 15th state to legalize same-sex marriage.

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Baehr and Dancel are no longer together, but remain friends.

Baehr said she does not regret bringing the issue into the mainstream.

“It’s one of the things in my life that I am most proud of,” she said. “If we had not done it at that time, someone would have done it eventually. It just happened that we fell in love. We wanted to get married.”

Foley said, “I think despite the ups and downs and what was a tumultuous road in the ’90s, they can be proud they began this movement.”

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