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Hawaii voters let Legislature define marriage, and it did

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There’s a Hawaii part to last week’s U.S. Supreme Court decision supporting gay marriage in all 50 states.

Justice Anthony Kennedy recalled there was a time that "same-sex intimacy long had been condemned as immoral … in most Western nations and a belief often embodied in criminal law."

"Many people did not deem homosexuals to have dignity in their own distinct identity," Kennedy wrote in the beginning of the landmark decision declaring gay marriage legal.

"Gays and lesbians were prohibited from most government employment, barred from military, excluded under immigration laws, targeted by police and burdened in their rights to associate."

Kennedy, in authoring the 5-to-4 decision, wrote that gays "ask for equal dignity in the eyes of the law. The Constitution grants them that right."

As much as the Supreme Court decision did not happen in a vacuum, neither did it occur without the state of Hawaii playing a lead-off role.

Gay marriage first became a legal issue of note when the issue was before Hawaii’s courts.

Kennedy pointed out in his decision that in 1993, the first court to recognize that there was a legitimate civil rights issue was Hawaii’s Supreme Court.

What happened in Hawaii, although only a first step, so worried the rest of the country that, as Kennedy noted in his decision, "some States were concerned by its implications and reaffirmed in their own laws that marriage is defined as a union between opposite-sex partners."

And that, Kennedy said, led to the federal "Defense of Marriage Act, defining marriage in federal law as between a man and a woman."

In recounting the Hawaii case, The Washington Post last week tracked the case before the Hawaii high court.

A former civil-rights attorney, Dan Foley, was representing a lesbian couple, Genora Dancel and Ninia Baehr, who were denied a Hawaii marriage license.

The state’s attorney was asked by Justice James Burns what happened when a man and woman asked for a marriage license. The attorney said the state granted the request.

Burns then asked, "But if a man and a man ask, or a woman and a woman ask, you refuse?"

When the attorney said "Yes," Burns said, "Well, that’s discrimination."


The Post quotes Foley, who is now on the Intermediate Court of Appeals, as saying, "The hair kind of stood up on my arm, and I thought, ‘Oh, my God, they’re taking this seriously,’ I thought, ‘We have something here.’ "

Like many other states, Hawaii’s gay marriage history was not a clear path. The Hawaii Supreme Court challenge caused a statewide vote to amend the Constitution to declare that marriage would be defined by the state Legislature. To many voters, they thought the issue was then settled because the Legislature had already said marriage was between a man and a woman.

So when Gov. Neil Abercrombie backed a special legislative session to open marriage to same-sex couples, there were howls of protest that the state had already voted this down.

That was incorrect. Voters who thought that giving the Legislature the power to define marriage were voters who were not listening to the instructions.

So in 2013, Hawaii closed the circle and legalized gay marriage nearly two years before the U.S. Supreme Court extended the right across all 50 states.

It took a while for Hawaii to act on its initial good instincts, but it finally got it right.


Richard Borreca writes on politics on Sundays, Tuesdays and Fridays. Reach him at

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