GAY PEOPLE'S CHRONICLE JUNE 11, 1993

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Would Hawaii ruling apply here?

Continued from Page 1

Marks said that gay marriages are “not a done deal" yet. He said his office has not decided how to proceed, but that he would fight the ruling.

Gov. John Waihee said his administration would oppose same-sex marriages. The head of the Republican Party in Hawaii has called for a constitutional amendment banning gay and lesbian marriages.

In its decision, the court threw out a common argument in gay civil rights cases: that the ban violated the couples' right to privacy. It based its ruling instead on an equal protection argument, agreeing with the plaintiffs that the current state marriage law denies same-sex couples access to the rights and benefits of marriage, including inheritance, child custody, and tax advantages.

But the court surprised legal observers by finding this to be sex discrimination, not anti-gay discrimination: a man can marry a woman, but a woman cannot, solely because of her gender.

"... It is immaterial whether the plaintiffs...are homosexuals," states the majority opinion. "... The state's regulation of access to the marital status, on the basis of the applicant's sex, gives rise to the question whether [they] have been denied the equal protection of the law..."

The opinion requires the state to give a "compelling reason" for the ban, rather than the easier-to-satisfy “rational basis.”

Justice Steven Levinson, writing for the majority in the 3-2 decision, declared the ban is "presumed to be unconstitutional." The state cannot base its recognition of marriage on the gender of either person involved, he said.

In a dissent, Justices Walter Heen and Yoshimi Hayashi warned the ruling will have "far-reaching and grave repercussions on the finances and policies of the governments and industry of this state and all other states in the country."

Foley said that he expects the lower court to rule in favor of his clients in the

next few months, and that gay marriages will be allowed in Hawaii within two years, after the Supreme Court gets the case back on appeal and issues its final ruling.

A Hawaiian honeymoon?`

If gay marriages were to become legal in Hawaii, it would raise the legal question of whether other states would be obliged to recognize Hawaiian same-sex marriages.

Constitutional and general legal principles require states to honor each other's

laws, and each state currently recognizes marriages performed in another state.

"Essentially, it is what allows us to exist as one nation, that we don't have a million different laws across the states," said William Rubenstein, director of the ACLU lesbian and gay rights project.

But another important tenet says states can make an exception when the public there holds strong contrary views.

Courts weighing differing marriage laws, "as a general rule, will validate the parties' expectations if [the marriage] was valid where the relationship was entered intounless it violates public policy," said Professor Linda Elrod at Washburn University in Topeka, Kan. She is editor of the American Bar Association's Family Law Quarterly.

But how do you measure public policy? Laws on the books are one indicator, say experts who suggest the 25 states that outlaw sodomy will have a strong argument against recognizing same-sex marriages, as will those with laws specifically defining marriage as a contract between a woman and a man.

It's clear that lawyers, judges, lawmakers and the public-not to mention lesbian and gay couples eager to tie the knot legally-will probably find themselves hiking through a legal thicket if Hawaii allows same-sex marriages.

"This is uncharted terrain," said Harvard law professor Martha Minow, a family law specialist. "The Hawaii decision is not over, but it shows there is an avenue for possible recognition of gay and lesbian relationships, even in the traditional marriage."

It's been a quarter century since a high court ruled on government power to dictate marriage bonds. The last time concerned Virginia's ban on interracial marriages, a prohibition once common in Southern states.

A Virginia couple, the Lovings, were married in Washington, D.C., then jailed when they went home. The U.S. Supreme Court ruled in 1967 that their marriage was legally protected as a civil right.

Going shopping

Joe Melilio and his partner, Pat Lagon, who are plaintiffs in the case, said they are ready to shop for wedding clothes. "We didn't do this just for us," Melilio said. "We hope it benefits others."

Ninia Bachr said she and her partner, Genora Dancel, also plaintiffs, plan to marry in a very private ceremony. "We've had to be very public to win this case." she said. "The victory belongs to the gay community, but the wedding is ours."

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