1993: Baehr v. Lewin — “marriage is a basic civil right”

Ninia Baehr and Genora Dancel

In 1993, we get the first landmark case for the rights of same-sex couples to marry, Baehr v. Lewin.

The Hawaii Supreme Court applies equal protection analysis to determine whether the couples are indeed receiving equal protection of the laws as mandated by the state constitution.

Equal protection analysis

The higher level of scrutiny in constitutional law is called strict scrutiny. It’s used when a law is based on a suspect category (protected classes such as sex or race) or when it impinges a fundamental right. If either of these is true, the law is presumed unconstitutional unless the State can show a compelling interest to justify such classifications and that the law is narrowly drawn to avoid unnecessary abridgments of constitutional rights.

If an issue doesn’t rise to the level of strict scrutiny, it’s instead put to a rational basis test: does the law further a legitimate state interest and is it rationally applied.

A suspect category…

The court rules that, because Ninia would be allowed to marry Genora if Ninia were a man, it is clearly sex discrimination to say she can’t marry her because she’s a woman. Sex is a suspect category and that puts this in the realm of strict scrutiny:

[W]e hold that sex is a ‘suspect category’ for purposes of equal protection analysis under article I, section 5 of the Hawaii Constitution and that HRS § 572-1 is subject to the ‘strict scrutiny’ test.

…and a fundamental right.

Further, the court rules that a fundamental right is being infringed. Referring to 1942’s Skinner case:

[T]he United States Supreme Court has recognized for over fifty years that marriage is a basic civil right.

But isn’t it fair to say that everyone has to marry the opposite sex?

The court refutes the claim that restricting marriage to opposite-sex couples is fair because theoretically “everyone can marry someone of the opposite sex.” The court responds to the charge made by one of the justices in his dissenting opinion that restricting marriage to opposite-sex couples,

‘treats everyone alike and applies equally to both sexes[,]’ with the result that ‘neither sex is being granted a right or benefit the other does not have, and neither sex is being denied a right or benefit that the other has.’ (emphasis in original). [That] rationale … was expressly considered and rejected in Loving:

Thus, the State contends that, because its miscegenation statutes punish equally both the white and the Negro participants in an interracial marriage, these statutes, despite their reliance on racial classifications do not constitute an invidious discrimination based upon race… [W]e reject the notion that the mere “equal application” of a statute containing racial classifications is enough to remove the classifications from the Fourteenth Amendment's proscriptions of all invidious discriminations… [T]he fact of equal application does not immunize the statute from the very heavy burden of justification which the Fourteenth Amendment has traditionally required of state statutes drawn according to race. [quoting Loving]

Substitution of ‘sex’ for ‘race’ and article I, section 5 for the fourteenth amendment yields the precise case before us together with the conclusion that we have reached.

The case gets sent back to the lower court

In its breakthrough decision, the state supreme court hands the case back to the lower court for the State to prove whether its marriage exclusion “furthers compelling state interests and is narrowly drawn to avoid unnecessary abridgments of constitutional rights.”

Timeline key: progress (green), no progress (red), pending court cases (purple),
events that are neutral, not directly related, or with both positive and negative effects (black)