Hawaii Court Revives Suit on Gay Marriages : Rights: State justices overturn the dismissal of a challenge to the ban on same-sex unions.


In a decision hailed by gay rights advocates, the Hawaii Supreme Court has refused to kill a lawsuit challenging the state's ban on same-sex marriages, saying that the state has to prove that the prohibition does not violate the constitutional rights of same-sex couples.

Ruling Wednesday, the Hawaii justices reversed a lower court's dismissal of a lawsuit filed by two lesbian couples and a gay male couple and ordered the case to trial.

Citing state equal protection clauses that outlaw discrimination on the basis of sex, the opinion concluded that the state prohibition on same-sex marriage "is presumed to be unconstitutional" unless the state can prove during lower court proceedings that the ban is "justified by compelling state interests."

Although various challenges have been filed since the 1970s by gays and lesbians seeking the right to marry, none has progressed as far as the Hawaii case, according to several gay rights attorneys.

"This is a landmark," said William Rubenstein, director of the National Lesbian and Gay Rights Project of the American Civil Liberties Union. "This is the first time a court has taken a gay marriage case seriously."

The court's reasoning is also significant, Rubenstein added. "What this decision does is recognize that discrimination against gay people is sex discrimination and therefore entitles gay people to a higher level of protection. That point has great ramifications for gay law and gay equal protection claims."

Carl M. Varady, an American Civil Liberties Union attorney involved in the Hawaii case, predicted that the state would have a tough time meeting the Supreme Court's criteria for upholding the gay marriage prohibition.

"The argument we've pushed in this case was the one the court ultimately bought," Varady said, comparing laws against same-sex marriage to state bans on interracial marriage that eventually were struck down in the United States.

"These are really the miscegenation cases of the '90s," he said. "The same type of religious and natural-law arguments were put forth against interracial marriage."

The Hawaii attorney general's office was not running up the white flag, however. "We are going to go forward," Deputy Atty. Gen. Sonia Faust said. "The case, in our opinion, is not over." Without elaborating on what the state's arguments will be, Faust said she thought the state would be able to prove a compelling interest in outlawing same-sex marriages.

"We feel that it may not be that steep a climb under local precedent," she said.

Although the opinion is binding only in Hawaii, gay advocates said courts in other states inevitably will take note of it.

"It's an enormous step to getting the government out of the business of telling people who they can marry," said Evan Wolfson, an attorney with the Lambda Legal Defense and Education Fund and one of the lawyers in the case.

Still, because the opinion is based on Hawaii's constitution, the ruling is not necessarily far-reaching, said Julian Eule, associate dean of the UCLA Law School and a professor of constitutional law. "Each state will have to look at its own constitution," he said. "The language of their constitution will be different, the history of their constitution will be different.

"Taken to its logical conclusion," Eule added, the opinion's reasoning "converts all homosexuality issues into gender issues. And many states may not be willing to make that leap. . . . It's an interesting theory and it remains to be seen how many other state courts are willing to buy it."

In the opinion, the Hawaii court concluded that although there was no fundamental constitutional right to same-sex marriages based on privacy issues, the plaintiffs had raised legitimate questions of whether state marriage law violated the equal protection clause of the state constitution.

The Hawaii constitution "prohibits state-sanctioned discrimination against any person in the exercise of his or her civil rights on the basis of sex," the opinion stated. In a footnote, the ruling further notes that "parties to 'a union between a man and woman' may or may not be homosexuals. Parties to a same-sex marriage could theoretically be either homosexuals or heterosexuals."

Because the case deals with the state constitution, the Hawaii Supreme Court, rather than the U.S. Supreme Court, has the final word, attorneys said. But even if the lawsuit's final outcome legalizes same-sex marriages in Hawaii, the issue of whether other states recognize those unions probably will lead to legal battles elsewhere, they said.

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