Nearly 20 years ago, at the forefront of the issue, Hawaii’s Supreme Court ruled that the ban of same-sex marriage appeared unconstitutional and ordered the state to show a "compelling state interest" why same-gender couples couldn’t wed.

Mainland states had yet to begin the legal fight, but the prospect of gay couples flocking to Hawaii to exchange vows suddenly became a hot national issue. Congress passed the Defense of Marriage Act in 1996, refusing federally to recognize same-sex marriage. President Bill Clinton signed DOMA into law after a spokesman denounced the measure as "gay-baiting."

It wasn’t until 2003 that Massachusetts’ Supreme Court ordered that state’s Legislature to allow same-sex couples to wed. Eight other states and the District of Columbia have either legalized same-sex marriages since then or are walking the aisle.

Hawaii backed away from the vanguard, but the issue of same-sex unions continued to flare regularly in the legislative or litigation arena. It re-ignited in the courts here this month, as a federal judge rejected a lawsuit contending that Hawaii’s ban of same-sex marriage violates the U.S. Constitution. The case is headed for appeal, but it creates no legal blockage for the Legislature to turn around the prohibition. In fact, the ruling seems to invite legislative recourse on the issue.

Gov. Neil Abercrombie signed into law last year the right of same-sex couples to enter into civil unions — and sided in court with a lesbian couple and a gay man, who were plaintiffs in this same-sex marriage lawsuit. The governor said he will join them in their appeal.

Federal Judge Alan Kay made clear in his 117-page ruling on Aug. 8 that simple legislation, not a constitutional amendment, could turn around Hawaii’s marriage law. If marriage were to be "restructured," he wrote, it could "be done by a democratically elected legislature," not necessarily as a constitutional amendment.

"Judge Kay was pretty clear that if the plaintiffs want the change, they should do it through the Legislature," said James Hochberg, attorney for the Christian-based Hawaii Family Forum. "I don’t think the Legislature wants to do it."

The Abercrombie administration is likely not to decide at least until November whether to propose same-sex marriage in the next session of the Legislature in January, a spokesman said.

"This is the subject of pending litigation," replied communications director Jim Boersma. "Therefore, it is premature to comment on any possible legislation that might, or might not, be drafted this far in advance of the Legislature reconvening."

In the Legislature’s 2011 session, the civil union bill was approved 31-19 by the House and 19-6 by the Senate. Then-House Majority Leader Blake Oshiro, who is gay and led the effort, was chosen by Abercrombie last November as his deputy chief of staff.

"The gay activists are at the Legislature asking for these remedies all the time," Hochberg said, "and they file a lawsuit and then go back to the Legislature and say, you know, ‘We can settle this lawsuit if you guys pass it,’ and so it’s sort of a negotiation thing, it seems to me. I think the people in the state of Hawaii don’t want to have marriage include anything more than one man and one woman."

Hochberg pointed to Equality Hawaii’s July 20 "Equality Gala," where nearly $70,000 was raised, assuming that it would be piled "into politicians’ war chests and stuff like that."

While the money raised at the gala would be spent supporting educational programs, Donald L. Bentz, the organization’s executive director, said Equality Hawaii is "definitely considering introducing something" in Hawaii’s upcoming Legislature, and was looking at options "to make sure that the timing on everything is right."

"We have every intention of working … with our legislative and community partners in the weeks and months to come on advancing marriage equality legislation," Bentz said. "We are hopeful that the will exists in both chambers to introduce such legislation."

"I know we have strong support in both the House and the Senate side," said Tambry Young, president of Citizens for Equal Rights, another same-sex marriage group. "Once the general election gets over in November, I think then there will be a stronger move where the LGBT (lesbian, gay, bisexual and transgender) communities would want to go," she said. They also are engaged in "a lot of talk" about moving to repeal nationally DOMA, which the Obama administration has opposed.

"Formally, nothing has come down as far as what course we’re going to take," Young said.

Hochberg said he doubts that legislators will push for legalizing same-sex marriage, even though Abercrombie has given support to such a law.

"I think the issue is kind of toxic in terms of getting elected if you do this kind of stuff," he said. "Maybe he (Abercrombie) doesn’t care. That’s kind of possible, but I think the legislators themselves who haven’t been in Congress and now the governor might have more to lose."

Hochberg pointed to an analysis last year by Fred and son Fritz Rohlfing concluding that Hawaii House Democrats "triumphed handily" in the 2008 and 2010 elections but "suffered significant diminished vote totals" for their same-gender support.

"The candidates that supported civil unions lost votes that they used to have, and their challengers, some of whom had never run before, got way more votes than Republicans did (previously) in those same districts, and it happened again in this year’s primary," Hochberg said.

The national issue of same-sex marriage began in Hawaii in 1991, when several same-gender couples sued in state court, calling the statute restricting marriage to opposite-sex couples unconstitutional.

When Hawaii’s Supreme Court ruled in 1993 asking the state to prove a "compelling state interest" for the same-sex ban, the Legislature in 1994 approved a law limiting marriage to opposite-sex couples. When questions arose about its ability to limit marriage thusly, Hawaii voters in 1998 approved a constitutional amendment that gave the Legislature the authority to have done so.

So, despite a state trial judge ruling in 1996 that restricting marriage to opposite-sex couples violated the state Constitution’s equal protection rights, the Hawaii Supreme Court in 1999 held that the 1991 lawsuit was moot because of the amendment that allowed the Legislature’s definition of marriage.

And thus, as Judge Kay noted in this month’s ruling, the ban on same-sex marriage is not a constitutional amendment.

Hochberg praised the judge for a ruling that "doesn’t exercise political will but actually exercises the reserved role of the federal district court."

Indeed, Kay avoided agreeing with either side of same-sex marriage. For example, while noting that Hawaii Family Forum presented "evidence that children do best when raised by their two biological parents," the judge respected Abercrombie’s argument "that there is no scientific evidence to support that opposite-sex couples are better parents than same-sex couples."

Whichever side is right, he wrote, "In any event, the Legislature is not required to have a perfect fit between its means and ends."

Decades of same-sex deliberations

A glance at the same-sex union issue in Hawaii over the years:

1991 — Several same-sex couples in Hawaii file lawsuit in state court contending that the statute restricting marriage to opposite-sex couples is unconstitutional.

1993 — The Hawaii Supreme Court rules that the limit of marriage to opposite-sex couples was presumed to be unconstitutional unless the state could prove a "compelling state interest" justifying the same-sex marriage ban.

1994 — State Legislature approves a law limiting marriage to opposite-sex couples.

1997 — Legislature recognizes "reciprocal beneficiaries," giving some rights to same-sex couples.

1998 — Hawaii voters ratify a constitutional amendment, 69 percent in favor and 29 percent against, sanctioning the Legislature’s 1994 limitation of marriage to opposite-sex couples.

2010 — Legislature approves civil unions for same-sex couples but the measure is vetoed by then-Gov. Linda Lingle in July 2010.

2011 — Legislature passes a civil unions bill similar to the previous year, and it is signed into law by Gov. Neil Abercrombie in February 2011.

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LITIGATION OR LEGISLATION?

Same-sex marriage became legal by litigation in Massachusetts 2004, followed by Connecticut (2008), California (2008) and Iowa (2009).

It was recognized by legislation in Washington, D.C., New Hampshire and Vermont in 2009 and in New York last year.

Washington state passed same-sex marriage legislation this February and Maryland passed legislation in March, both subject to voter referendum in November. Same-sex marriage was approved by New Jersey legislators in February but was vetoed by Gov. Chris Christie a day later.

Civil unions were made the law in Oregon in 2007, Nevada and Maine in 2009, Illinois and Rhode Island in 2011, and Hawaii and Delaware last year. Maine has allowed limited domestic partnerships with marital privileges since 2009.

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DOMA (DEFENSE OF MARRIAGE ACT)

In 1996, Congress passed and President Bill Clinton signed into law the Defense of Marriage Act, refusing federally to recognize same-sex marriage. Under DOMA, no state is required to recognize a same-sex marriage from another state; also, non-recognition of gay marriages applies to federal aspects such as insurance benefits for government workers, Social Security survivors’ benefits, and filing of joint tax returns.

Clinton is among those who have since changed their views and now call for DOMA’s repeal. President Barack Obama declared in February 2011 that DOMA violates equal protection for same-sex couples, and said his administration would no longer defend it in court. At least four cases challenging DOMA’s constitutionality are asking for the U.S. Supreme Court’s review.

— Lee Catterall, Star-Advertiser