1993 ruling paved way for shifting views on marriage equality, former justice says

As a younger member of the Hawaii Supreme Court at age 46, Steven Levinson wrote the landmark opinion issued nearly 20 years ago that launched the debate over same-sex marriage that still reverberates today across the country and in the nation’s highest court.

Levinson was on the state high court for less than a year when he wrote the first court ruling in the country favoring the legalization of same-sex marriage.

The two youngest justices deciding the case found that Hawaii laws banning same-sex marriage constituted sex discrimination, while the older brethren disagreed in the splintered 2-1-1 decision that brought Hawaii to the brink of being the first state to legalize gay marriages.

"I knew this was going change the world," Levinson recalled in a recent interview at his Manoa home, still proud of what he calls the most significant among his more than 230 opinions. Sunday marks the 20th anniversary of the decision.

Levinson, 66, who retired in late 2008, believes that he may have been the right person at the right time to write the opinion, which generated more reaction nationally and locally than any Hawaii state court ruling.

If the issue had arisen earlier before the older justices, Levinson said he "would bet my house" that the Hawaii high court would not have ruled the same way.

And for Levinson personally, his ruling hit home about a year and a half later when his then-22-year-old daughter disclosed to him that she was a lesbian.

Levinson, who today actively supports the marriage equality movement as a civil rights issue, wrote the opinion dubbed Baehr v. Lewin.

It was, he recalled, an exciting time for the new associate justice, who had earlier served three years as a circuit judge obligated to follow high court precedents that he thought had been incorrectly analyzed.

"If they happened to arise, to come up in an appeal, I really wanted to do some re-sculpting, if possible," he said. "Being new and relatively young, and not lacking in self-confidence, and understanding the nature of the power that the court wielded, I wasn’t temperamentally inclined to shirk big issues."

Because the Hawaii Supreme Court was in transition, Levinson and Chief Justice Ronald Moon were the only two sitting members of the court.

Moon joined in Levinson’s opinion. Moon was 52.

Former Chief Justice Herman Lum had stepped down from hearing the case. Associate Justice James Waka­tsuki had died. And Associate Justice Robert Klein could not hear the case because as a circuit judge, he had earlier thrown out a lawsuit by three same-sex couples challenging the state marriage laws. The couples’ suit was the subject of the appeal.

The three replacements were substitute justices James Burns and Walter Heen from the state appeals court and retired Associate Justice Yoshimi Hayashi.

In the ruling, Levinson reversed Klein’s decision and reinstated a lawsuit by the couples who were denied state marriage licenses.

Levinson wrote that the state’s ban on same-sex marriages was sex discrimination in violation of the state Constitution’s equal protection clause unless the state could show "compelling" reasons to justify the ban.

Burns, then 56, agreed that Klein’s ruling should be reversed, but said a hearing should be held to determine whether homosexuality was "biologically fated" to fall under the equal protection clause.

The two oldest justices, Heen, then 65, and Hayashi, who was 69, disagreed. Heen wrote the dissent, pointing to the rulings in other state courts and holding that he didn’t find the ban to be sex discrimination.

Hayashi’s opinion was not part of the ruling because his appointment had expired before the decision.

But Levinson recalled that during an earlier conference, Hayashi pointed to Heen and said, "I’m a traditionalist. I’m with him."

To Levinson it was no coincidence that he and Moon were the youngest.

Although support for same-sex marriages in those days was much weaker than today, the split in views among the five judges parallels current polls that show younger people as being more supportive of marriage equality than older people, Levinson said.

He said he doesn’t think a court with older justices would have reversed Klein’s decision.

"I think the reason is mostly generational," Levinson said.

Levinson said he brought to the court a background that helped shape his conclusion.

He said he had been obsessed with the idea of marriage since he was 7 and fantasized about how it would be to be married. He said he remembered a classmate named Janet as the object of his fantasies.

It was a very rudimentary notion about marriage and it did not involve the concept of same-sex unions, but he said he believes he understood the basic idea of love and commitment.

"I understood why marriage was important," he said.

Levinson was 22 when he married his high school sweetheart, Lynn, who died in 2000. He married his current wife, Catherine, in 2001.

Levinson also cited his Jewish background and the writing of a rabbi who said, "Jews exist to be bold. We cannot hide from the task of making the world more just and decent."

"I believed that was my obligation, at least to strive for, and here I was in the perfect job for someone of that frame of mind," he said.

On a personal level, Levinson recalled that in late 1994 his daughter Jen disclosed to him that she was a lesbian.

"It didn’t take me long to decide I wanted to officiate at the first same-sex marriage in America, legally recognized, and I wanted to marry my daughter," he said.

His daughter, now 41, and her girlfriend are registered domestic partners in California, according to Levinson.

The high court’s same-sex ruling drew a fierce backlash nationally and in Hawaii.

As a result of the decision, and fearing that same-sex marriages would be legal, Congress passed the Defense of Marriage Act in 1996, denying federal marriage benefits to any married gay couples.

In Hawaii, voters ratified a 1998 constitutional amendment that nullified the Hawaii high court’s ruling.

But the marriage equality movement later gained momentum, with nine states and Washington, D.C., legalizing same-sex marriage. President Barack Obama and Gov. Neil Abercrombie have expressed their support, and polls show a growing segment of the public say they support marriage equality rights.

The U.S. Supreme Court heard arguments last month and will be issuing a decision this year on challenges to DOMA and California’s voter-initiative Proposition 8 that negated same-sex marriages in California.

Hawaii adopted a civil unions law that provides marriage benefits to same-sex couples. The law took effect Jan. 1, 2012.

Marriage equality supporters still hope Hawaii lawmakers will legalize same-sex marriage. A case involving a federal lawsuit challenging Hawaii’s same-sex marriage ban is on hold in the 9th U.S. Circuit Court of Appeals pending the outcome of the U.S. Supreme Court’s DOMA and Proposition 8 rulings.

Same-sex marriage opponents downplay any significance of Levinson’s ruling.

Jim Hochberg, Honolulu lawyer for Hawaii Family Forum, which is against legalizing same-sex marriages in the case pending in the federal appeals court, said the ruling has been heavily criticized in the legal community.

He said no other court has followed the reasoning that the same-sex marriage ban is sex discrimination. "It’s an embarrassment to Hawaii," he said.

But John D’Amato, the lawyer challenging Hawaii’s marriage laws in the federal appeals case, said the ruling thrust same-sex marriages in the public light as a civil rights issue.

"It was the first blow for same-sex marriages anywhere," he said. "It began a movement that spread to all corners of the globe."

Levinson said his ruling "pushed the ball down the hill."

He cited more than a dozen foreign countries that have also legalized same-sex marriages since the Baehr decision. "I think Baehr v. Lewin ushered in and accelerated the evolution of the marriage equality movement," he said.

He noted, though, the backlash also included states passing their own measures restricting marriages to opposite-sex couples.

"Nevertheless, as we sit here today, the breadth, the extent of the acceptance and institutionalization of marriage equality around the world is really breathtaking," he said. "And I don’t think it would be as nearly as breathtaking if we hadn’t gotten it started."

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EBBS AND FLOWS OF SAME-SEX MARRIAGE LEGISLATION

May 5, 1993:
Associate Justice Steven Levinson writes the Hawaii Supreme Court decision that state laws prohibiting same-sex marriages violate the state Constitution’s equal protection clause unless the state can show a “compelling state interest” to justify the ban. It’s the first time in the country that a court rules in favor of same-sex marriages.

September 1996:
President Bill Clinton signs into law the Defense of Marriage Act, which was passed by Congress in response to the 1993 decision by the Hawaii court.

December 1996:
Circuit Judge Kevin Chang rules the state could not show “compelling state interests” to justify the ban. His ruling clears the way for same-sex marriages, but he stays his ruling while the state appeals to the Hawaii Supreme Court.

November 1998:
Hawaii voters approve a state constitutional amendment that negates the high court’s 1993 decision. The amendment says the state Legislature has the power to reserve marriage to opposite-sex couples.

December 2011:
A lesbian couple files a federal lawsuit challenging the state’s same-sex marriage ban. Gov. Neil Abercrombie agrees the ban is unconstitutional, but his health director defends the ban.

August 2012:
Senior U.S. District Judge Alan Kay throws out the lawsuit. The couple and a man who later joined in the suit appeal to the U.S. 9th Circuit Court of Appeals.

Today:
The U.S. Supreme Court is considering constitutional challenges to DOMA and Proposition 8, the latter a voter initiative that took away the right of California same-sex couples to be legally married.