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Newsbreak: Hawaii ruling (1)
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Judge makes gay marriage legal in Hawaii
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Copyright ) 1996 Nando.net
Copyright ) 1996 N.Y. Times News Service
Gay marriage ruling stirs emotional reactions
(Dec 4, 1996 00:06 a.m. EST) -- A Circuit Court judge in Honolulu
ruled Tuesday that lawyers for the state had failed to show any
compelling reason for the existing ban on gay and lesbian unions.
Calling the ban unconstitutional, the judge ordered the state to stop
denying marriage licenses to same-sex couples.
The decision edged Hawaii one step closer to becoming the first state
to recognize gay marriage: an appeal by proponents of the ban to the
state Supreme Court is expected to take most of next year.
In 1993, the state Supreme Court had ruled that the ban appeared to be
unconstitutional and ordered Hawaii to show a "compelling state
interest" justifying it. Should the court rule the same way again, the
legal battle in Hawaii will be over and marriage licenses will be
granted there.
But the legal fights on the mainland will only be beginning as other
states and the federal government wrestle with the issue of whether
they must recognize same-sex marriages performed in Hawaii.
The prospect of would-be gay spouses flocking to the state to wed has
prompted such widespread opposition that Congress passed a "Defense of
Marriage Act" earlier this year declaring that states are not obliged
to recognize single-sex marriages performed elsewhere. Though his
spokesman denounced it as "gay-baiting," President Clinton signed the
election-season bill, which also withheld federal tax, pension, health
and other benefits from gay spouses.
But proponents of gay marriage nonetheless predict major disputes in
federal courts over whether states are bound by the U.S.
Constitution's "full faith and credit" clause to recognize same-sex
marriages performed elsewhere. They foresee a court-by-court battle
that could take years, particularly in the 16 states that have passed
their own versions of the ban. Twenty states have defeated such bills.
Tuesday's ruling by Judge Kevin S.C. Chang cited substantial expert
testimony that gay and lesbian couples can be good parents. He
rejected the state's argument that it was in the best interest of
children to bar same-sex marriages.
"This decision marks the beginning of the end of sex discrimination in
marriage just as we brought an end to race discrimination in marriage
a generation ago," said Evan Wolfson, the project director at the
Lambda Legal Defense and Education Fund, the gay legal organization
that worked on the case along with Honolulu lawyer Dan Foley and the
American Civil Liberties Union. "Let these couples wed!"
But Robert H. Knight, the director of cultural studies at the
conservative Family Research Council in Washington, D.C., denounced
the ruling as a denial of "not only the wisdom of generations but the
law of nature and nature's God." And the Rev. Lou Sheldon, the
chairman of the Traditional Values Coalition in Anaheim, Calif., said
the judge's action was "judicial tyranny."
The ruling is not expected to take immediate effect because lawyers
for the State of Hawaii quickly sought a stay pending their State
Supreme Court appeal. Lambda officials advised would-be gay spouses
against hopping on planes and heading for Waikiki.
Chang's decision ended the latest chapter in a legal saga that began
in 1990 when three same-sex couples in Honolulu were denied marriage
licenses by the state's Department of Health.
The couples sued in 1991. In 1993, the Hawaiian Supreme Court found
the ban to be unconstitutional and required state lawyers to show a
"compelling state interest" for its continued existence.
Lawyers for the state argued before Chang at a nine-day nonjury trial
in September that children are best raised by two heterosexual
parents. Their four expert witnesses included sociologists who
espoused the principle that it is best for children to live in a
traditional family.
When pressed, however, the state's witnesses allowed that it would
help the children of same-sex couples if their parents could marry.
They acknowledged, too, that gay couples can be as competent at
parenting as heterosexual couples.
The gay couples' lawyers produced their own expert witnesses who
testified that studies have found that what is most important in the
raising of children is the quality of the parenting, not the sexual
orientation of the parents.
Rick Eichor, the state deputy attorney general who handled the case,
said that Chang seemed to have based his decision on a lack of
evidence that gay parents are bad parents, whereas the state's
argument had focused on the theory that gay parents are not ideal, and
that "you want to give children the best possible odds."
"If I had known the judge wanted us to engage in gay-bashing we would
have done the case differently," Eichor said, "but we didn't feel that
was necessary and I still don't."
The federal court system has no jurisdiction over Hawaii's ruling in
the matter of gay marriages, Foley said. So, if the Hawaiian Supreme
Court rules in favor, no further appeal will be possible and the State
of Hawaii must sanction the marriages.
For now, the three gay and lesbian couples whose desire to wed set off
the current legal battles are still preparing -- slowly and a bit
skeptically -- for their weddings.
Joseph Melillo and Patrick Lagon, designers who have lived together
for 19 years, have recently become ministers in the Universal Life
Church and might be able, in a pinch, to officiate at their own
marriage, Melillo said.
Ninia Baehr and Genora Dancel, who now live in Baltimore, have said
they plan a small private ceremony on the island of Maui. Antoinette
Pregil and Tammy Rodrigues, the third couple -- who have recently
begun speaking publicly now that they deem their 19-year-old daughter
old enough to stand the attendant publicity -- have said that they,
too, plan a small, private wedding.
Ms. Baehr and Ms. Dancel greeted Tuesday's ruling with tears of
happiness at Lambda headquarters in Manhattan.
"Our love made it possible for me and Genora to get through this long
legal fight," Ms. Baehr said. "I'm looking forward to our love getting
us to a wedding on a mountain slope in Maui."
The couple noted, however, that they do not plan to rush their union
and hold a ceremony in the small gap between Tuesday's ruling and the
stay. "We don't even know what we're going to wear yet," Ms. Baehr
said.
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