Baehr v. Lewin: The Hawaii Marriage Case That Changed U.S. Law
How a 1993 Hawaii Supreme Court ruling on same-sex marriage helped launch the modern movement for marriage equality in the United States.
Baehr v. Lewin: How a Hawaii Marriage Case Reframed Equality
The Hawaii Supreme Court’s 1993 decision in Baehr v. Lewin marked the first time a state high court held that excluding same-sex couples from civil marriage presumptively violated a constitutional guarantee of equality. Although same-sex marriage would not become legal nationwide until the U.S. Supreme Court’s 2015 decision in Obergefell v. Hodges, the legal arguments, political backlash, and public debates surrounding Baehr helped define the terms of the modern marriage equality struggle.
This article explains the background of the case, the Hawaii Supreme Court’s reasoning, the subsequent litigation and political response, and the broader legacy of Baehr v. Lewin in American constitutional law.
Background: Hawaii’s Marriage Law and the Plaintiffs
At the time of the lawsuit, Hawaii’s marriage statutes limited civil marriage licenses to unions between one man and one woman. Three same-sex couples—two lesbian couples and one gay male couple—attempted to obtain marriage licenses from the Hawaii Department of Health and were refused solely because they were of the same sex. They then sued the Director of the Department of Health, arguing that the denial violated the Hawaii Constitution’s guarantees of equal protection and sex equality.
- Plaintiffs’ position: The refusal to issue them licenses was discrimination based on sex, because each person was denied marriage solely due to the sex of the person they wished to marry.
- Defendant’s position: The state argued that marriage historically meant a union between a man and a woman and that the constitution did not require a change to that understanding.
The trial court initially dismissed the case, accepting the state’s arguments and rejecting the claim that the Hawaii Constitution protected a right to same-sex marriage. The plaintiffs appealed, setting the stage for a landmark decision.
The Legal Question: Equality and the Definition of Marriage
On appeal, the Hawaii Supreme Court faced several interrelated questions:
- Does the Hawaii Constitution’s equal protection guarantee forbid the state from denying marriage licenses to same-sex couples?
- Is the state’s exclusion of same-sex couples from marriage a form of sex discrimination?
- What level of constitutional scrutiny applies to the marriage law?
These questions were framed against the backdrop of Hawaii’s explicit constitutional commitment to equality between the sexes. Hawaii had ratified an Equal Rights Amendment that stated, in substance, that the state could not discriminate on the basis of sex. That amendment significantly influenced how the court analyzed the marriage statutes.
The Court’s Key Holding: Sex Discrimination and Strict Scrutiny
In 1993, a divided Hawaii Supreme Court issued a groundbreaking ruling. The court concluded that Hawaii’s refusal to issue marriage licenses to same-sex couples constituted discrimination based on sex under the state constitution.
| Issue | Court’s View in Baehr v. Lewin |
|---|---|
| Nature of the classification | Denial of licenses to same-sex couples was a classification based on the sex of the partners. |
| Constitutional provision | Hawaii’s Equal Rights Amendment and equal protection clauses were implicated. |
| Standard of review | The law was subject to strict scrutiny, the most demanding level of review under state constitutional law. |
| Immediate outcome | The case was remanded to the trial court to determine whether the state could show a compelling interest justifying the exclusion and whether the law was narrowly tailored. |
By treating the exclusion as sex discrimination, the court effectively reversed the usual presumption of validity for state marriage laws. Instead of requiring the couples to prove unconstitutionality, the state now had the burden to justify why same-sex couples could be barred from marriage under strict scrutiny—a test that most discriminatory laws fail.
Remand and the Follow-On Case: Baehr v. Miike
After the 1993 decision, the case returned to the trial court to allow the state to present evidence to support its exclusion of same-sex couples from marriage. During this phase, the named state official changed, and the case became known as Baehr v. Miike.
The trial court conducted a full evidentiary hearing with expert testimony on topics such as child development, family structure, and social policy. In 1996, the judge ruled that the state had not established any compelling state interest to justify denying marriage licenses to same-sex couples and that the statutory restriction therefore violated the Hawaii Constitution under the standard set in Baehr v. Lewin.
This ruling made Hawaii appear poised to become the first U.S. state where same-sex couples could legally marry, provided the appellate courts affirmed. That prospect triggered a swift and far-reaching political response both within Hawaii and across the country.
Political Backlash: Hawaii’s Amendment and DOMA
The possibility that Hawaii might be required to issue marriage licenses to same-sex couples raised questions about how other states—and the federal government—would respond. Under the U.S. Constitution’s Full Faith and Credit Clause, states generally must recognize the public acts and judicial decisions of other states, subject to certain exceptions. Opponents of same-sex marriage argued that if Hawaii recognized such marriages, other states might be forced to recognize them as well.
Hawaii’s Constitutional Amendment
In 1998, Hawaii voters approved an amendment to the state constitution that effectively allowed the legislature to reserve marriage to opposite-sex couples. The amendment carved out an exception from the usual equality guarantees with respect to marriage:
- It expressly gave the legislature authority to limit marriage to different-sex couples.
- It nullified the plaintiffs’ equal protection challenge by changing the underlying constitutional landscape.
In 1999, the Hawaii Supreme Court, now reviewing the case as Baehr v. Miike, held that because the new amendment allowed such a restriction, the plaintiffs no longer had a viable claim under the state constitution, reversing the lower court’s order in their favor.
The Federal Defense of Marriage Act (DOMA)
The implications of Baehr extended far beyond Hawaii. Many legal scholars and lawmakers identified the case as an important catalyst for the federal Defense of Marriage Act (DOMA), enacted in 1996. DOMA:
- Permitted states to refuse to recognize same-sex marriages performed in other states.
- Defined marriage for federal purposes as the union of one man and one woman.
Congressional hearings and debates on DOMA repeatedly referenced the Hawaii litigation as a justification for preemptive federal action. The law would remain in place for nearly two decades, until major portions were struck down by the U.S. Supreme Court in United States v. Windsor (2013) and effectively rendered inoperative by Obergefell v. Hodges (2015).
Baehr’s Place in the Road to Obergefell
Though the plaintiffs in Baehr ultimately did not obtain marriage licenses due to Hawaii’s constitutional amendment, the case played a central role in the broader movement toward marriage equality.
Doctrinal Influence
- Equality framing: Baehr reframed same-sex marriage bans as a question of equal protection and sex discrimination, not just privacy or individual liberty.
- Strict scrutiny model: The ruling showed how state constitutions with explicit sex equality provisions could be used to challenge marriage restrictions under the most demanding constitutional test.
- State constitutional experimentation: Legal scholars have noted that Baehr underscored the role of state courts as laboratories for civil rights innovations under state constitutions, independent of federal doctrine.
Movement Strategy and Public Debate
- National conversation: The case brought unprecedented public visibility to the legal arguments for same-sex marriage and helped move the issue from the margins into mainstream political discourse.
- Organizational response: Civil rights organizations, including Lambda Legal, engaged deeply with the case as amici and later as counsel, refining litigation strategies that would be used in later successful cases in states like Massachusetts and ultimately in federal courts.
- Policy innovations: In response to the litigation, Hawaii adopted a “reciprocal beneficiaries” law, offering certain rights to couples who could not marry—including same-sex couples—illustrating early compromise models later built upon in civil union and domestic partnership frameworks.
Key Takeaways from Baehr v. Lewin
The Hawaii case stands out in U.S. legal history for several reasons:
- It was the first state supreme court decision to treat exclusion of same-sex couples from civil marriage as presumptively unconstitutional discrimination.
- It created a blueprint for challenging marriage bans under state constitutions with robust equality provisions.
- It triggered a substantial political backlash, leading directly or indirectly to Hawaii’s amendment and the federal DOMA.
- It shaped the narratives, strategies, and legal reasoning that would later support nationwide marriage equality in Obergefell v. Hodges.
Practical Lessons for Understanding Marriage Equality Law
For students, advocates, or anyone trying to understand how marriage equality developed in the United States, Baehr illustrates several broader constitutional themes:
- State constitutions matter: They can offer protections that go beyond the U.S. Constitution, allowing earlier or broader recognition of rights.
- Equality and classification: How a court characterizes a law’s classification—here, as discrimination based on sex—often determines the level of scrutiny and the likelihood that the law will survive review.
- Interaction of courts and politics: Judicial decisions can spur both rights-expanding legislation and restrictive amendments, showing the dynamic interplay between courts and the political process.
- Symbolic impact: Even when plaintiffs do not ultimately win concrete relief, a case can still reshape legal doctrine and public understanding in ways that influence later victories.
Frequently Asked Questions (FAQs)
Q1: Did Baehr v. Lewin legalize same-sex marriage in Hawaii?
No. The 1993 decision did not immediately legalize same-sex marriage. It held that excluding same-sex couples from marriage was sex discrimination and required the state to justify the exclusion under strict scrutiny. On remand, the trial court ruled in favor of the couples, but a later constitutional amendment in Hawaii authorized the legislature to restrict marriage to opposite-sex couples, and the Hawaii Supreme Court ultimately ruled against the plaintiffs.
Q2: Why is Baehr v. Lewin considered so important if the plaintiffs ultimately lost?
The case is significant because it was the first high court decision to say that excluding same-sex couples from marriage is presumptively unconstitutional discrimination. It influenced later state and federal litigation, shaped public debate, and helped prompt both the creation of DOMA and the development of legal strategies that would eventually succeed in achieving nationwide marriage equality.
Q3: How did Baehr influence the federal Defense of Marriage Act (DOMA)?
The prospect that Hawaii might be required to allow same-sex couples to marry—and that those marriages could be recognized elsewhere—was a central concern raised in congressional debates over DOMA. The 1993 Baehr decision is widely cited as a major impetus for Congress to pass DOMA in 1996, which allowed states to refuse recognition of same-sex marriages performed in other states and defined marriage as between one man and one woman for federal purposes.
Q4: What role did Hawaii’s Equal Rights Amendment play in the decision?
Hawaii’s Equal Rights Amendment prohibited sex-based discrimination by the state. The Hawaii Supreme Court interpreted the marriage restriction as discrimination on the basis of sex and therefore applied strict scrutiny under that provision. Without this explicit sex equality language, the court might have been more reluctant to treat the exclusion as presumptively unconstitutional.
Q5: How does Baehr connect to Obergefell v. Hodges?
Baehr did not directly control Obergefell, which was decided under the U.S. Constitution, but it provided an early doctrinal and strategic foundation. By re-framing the issue as a matter of equality and by testing the arguments and evidence about the alleged harms of same-sex marriage, Baehr helped to shape the legal and factual record that later courts, advocates, and scholars drew upon in the years leading up to Obergefell.
References
- Baehr v. Lewin, Case Brief — Quimbee. 2024-01-01. https://www.quimbee.com/cases/baehr-v-lewin
- Baehr v. Lewin — Family Laws (USLegal). 2023-06-01. https://familylaws.uslegal.com/same-sex-couples/baehr-v-lewin/
- Baehr v. Miike — Lambda Legal. 2022-05-01. https://lambdalegal.org/case/baehr-v-miike/
- Baehr v. Miike — Supreme Court of Hawaii summary (via secondary source). 2019-01-01. https://en.wikipedia.org/wiki/Baehr_v._Miike
- Some Thoughts on Selling Same-Sex Marriage — William N. Eskridge Jr., Yale Law School Legal Scholarship Repository. 1996-01-01. https://openyls.law.yale.edu/handle/20.500.13051/16834
- Baehr v. Lewin and the Long Road to Marriage Equality — SSRN (Douglas NeJaime or other scholar). 2011-01-01. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1855065
- Gay Marriage, DOMA, and the Supreme Court — DP Injury Attorneys (summarizing federal developments following Baehr). 2013-07-01. https://dpinjuryattorneys.com/gay-marriage-doma-and-the-supreme-court-8/
Similar Articles
Read full bio of medha deb
