Toward Respectful Representation: Some Thoughts on Selling Same-Sex Marriage

Abstract

The Hawaii Supreme Court's 1993 decision in Baehr v. Lewin has spurred considerable national debate regarding state recognition of same-sex marriage. Baehr held that Hawaii's refusal to issue marriage licenses to same-sex couples qualified as sex discrimination under the Hawaii Constitution and remanded the case to the trial court to allow the state to try to demonstrate that it had a compelling state interest to justify the discrimination. Concerned about an influx of same-sex couples married in Hawaii, most states have considered, and many have adopted, explicit statutory provisions that prohibit state recognition of such marriages. In addition, the U.S. Congress passed, and President Clinton signed under cover of night, the Defense of Marriage Act. This legislation denies same-sex spouses federal benefits that accrue to married people and permits states to refuse to recognize same-sex marriages performed under the auspices of other states. This past December, the trial court in Baehr decided that the state had failed to meet its burden on remand. Although its order that the state issue marriage licenses to the plaintiffs has been stayed pending appeal, the increasing likelihood of state-sanctioned same-sex marriage in Hawaii suggests the issue will remain a hot topic.