Tuesday, December 30, 2008

It all began with Hawaii in 1996

On Dec. 3, 1996, something extraordinary happened: A state judge ruled that same-sex couples should be allowed to marry. The ruling, by a circuit judge in Hawaii, to this day remains the most eloquent and succinct legal description on why a state with an equal protection clause or equal rights amendment in its constitution must allow same-sex couples to marry. And to this day, the anti-marriage crowd doesn’t want to talk about it because it knows it has no retort.

Twelve years ago, First Circuit Judge Kevin S.C. Chang (by the way, Chang is now a federal magistrate) ruled in Baehr v. Miike that the state of Hawaii had no compelling interest to bar a man of legal age from marrying another man of legal age, or a woman of legal age marrying another woman of legal age.

His ruling, even before it was issued, set off a frenzy of panic among the religious Right all across America. The anti-marriage crowd saw what was happening, and the urgency was felt by legislators in Alaska who concluded they had to act quickly. They passed a law in February 1996 specifically barring same-sex couples from marrying, which was then challenged as unconstitutional. In February 1998, Superior Court Judge Peter A Michalski, reached nearly the same conclusion as Chang and ruled the Alaska law unconstitutional.

Back in Hawaii, Chang’s ruling was appealed, but the Hawaii Supreme Court sat on the case long enough for a constitutional convention to be called, during which the state constitution was amended to prohibit same-sex marriage. Everyone knew what was likely to happen, because the Hawaii Supreme Court had already ruled that the case had merit; all it wanted Chang to do was conduct a trial to create a record of findings. Alaska did the same before its Supreme Court could review Michalski’s decision.

And so the stage was set for state after state to amend its constitution to prevent judges from reaching the same conclusion that both Chang and Michalski had reached: that states have no compelling interest to prohibit same-sex marriage, especially when that state’s constitution contains an equal protection clause.

What was it about Chang’s decision in Baehr v. Miike that caused such alarm? I would like to address that, despite having provided a link to the entire text of the decision. There are a few key portions of the trial and the decision that are worth pointing out for their legal brilliance.

The state of Hawaii, when arguing its case before Judge Chang, sincerely did the best it could. It chose the most powerful argument at its disposal, and it was a significant choice because its failure utterly crushes the majority of arguments that are made against any type of recognition or extension of rights to homosexuals.

The state chose to argue that allowing same-sex couples to marry would be bad for children.

I get goose bumps talking about this, because the strategy the state selected covered almost every argument, outside of a religious one, that anyone could muster against gays; it contained every prejudice and every caricature about homosexuals. And it wasn’t that the state really muffed it by selecting this legal strategy. Quite the contrary, it was the only legitimate legal argument it could make. Theological doctrine holds no weight in a court of law; it cannot be presented as a legal construct. It can guide judges, but the bottom line is what does the law say?

And what Chang concluded after hearing the state’s argument was that it failed. Completely.

I’m going to break this blog entry into parts, because I don’t want each entry to get too long, so bear with me please. The next installment is coming up.

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