Chad Blair: How Hawaii Helped Lead The Fight For Marriage Equality - Honolulu Civil Beat


About the Author

Chad Blair

Chad Blair is the politics and opinion editor for Civil Beat. You can reach him by email at cblair@civilbeat.org or follow him on Twitter at @chadblairCB.


It’s been almost six years since the U.S. Supreme Court, on June 26, 2015, ruled in Obergefell v. Hodges that state prohibitions on marriage for same-sex couples were unconstitutional, thus making it the law of the land.

“Love is love,” President Barack Obama said shortly afterward, even though it was just three years earlier that he dinged Vice President Joe Biden for saying he was in favor of such unions. Biden “probably got out a little bit over his skis,” said POTUS of his VPOTUS.

Turns out that Obama was on the beginner’s slope while Uncle Joe was ahead of his time. But what can easily be forgotten was just how much a near run thing the legal and legislative battles were, even though the just outcome seems inevitable in retrospect.

“The Engagement,” a new book (Pantheon; 2021) from Sasha Issenberg, is an essential account of just how complicated the conflict was and how fierce was the opposition. Subtitled “America’s Quarter-Century Struggle Over Same-Sex Marriage,” Issenberg’s book is also an invaluable reminder of just how crucial was Hawaii’s role in making it happen.

A marriage equality supporter celebrates passage of same-sex marriage legislation at the Hawaii State Capitol in November 2013. A new book tells the story of Hawaii’s role in the national struggle. PF Bentley/Civil Beat

“It is a story that begins in Hawaii in 1990, when a rivalry among local activists triggered a sequence of events that forced the state to justify excluding gay couples from marriage,” a promo for the book explains.

What elevates “The Engagement” over other recent histories is that it manages to balance a deep attention to detail, a mastery of the facts and a smooth narration that takes the reader from Hawaii to other battleground states such as California and Vermont and to D.C. and back again. Issenberg also has an ability to make the lead characters in the book come alive on the page.

They include Ninia Baehr and Genora Dancel, the Hawaii couple at the center of the 1990 Baehr v. Lewin case (later Baehr v. Miike and Baehr v. Anderson, taking the names of the state health directors at the time) that challenged the constitutionality of denying gay couples the right to wed.

The book also profiles Dan Foley, the Honolulu attorney that represented Baehr and Dancel and two other same-sex couples. That case led, two and a half years later, to the first-ever court decision to validate a claim for same-sex marriage and — as Issenberg puts it — to begin “to align individual aspirations with tools of civil-rights law.”

In its 1993 Baehr v. Lewin decision, the Hawaii Supreme Court — through Associate Justice Steven Levinson — vacated the judgment that the Circuit Court had entered against the three same sex couples and in favor of the state and remanded the couples’ claim to the Circuit Court. The ruling held that Hawaii’s marriage laws  presumptively violated the couples’ right to equal protection of the law under the Hawaii constitution and that, at trial, the state would have the burden of demonstrating a compelling interest in the sex discrimination.

A Social Movement

My guess is that “The Engagement,” due out June 1, will garner lots of attention and be assigned in college classrooms.

“I see this book as comparable to ‘Simple Justice’ by Richard Kluger — the road to Brown v. Board of Education — which was a finalist for the National Book Award,” Foley told me. “It is not only instructive as to how marriage equality came about, but also how a successful social movement happens against what appears to be impossible odds.”

Indeed, Foley reminded me that from 1990 to 2015 — in just 25 years — the world went from zero same-sex marriages to all 50 states and 30 countries permitting them.

“Compare that to other civil rights struggles — African Americans and women,” he said.

“The Engagement” is 928 pages in length, which may seem off-putting. But there is a reason that The New York Times includes it on its 24 recommendations for summer reads.

Issenberg, an accomplished author, editor, journalist and teacher, can sometimes be playful in his language. Part one of the book, which is about what happened in Hawaii from 1990 to 1996, is titled “The Love That Ate An Island.”

Subsequent chapters often have inviting titles, such as “Dave & Ted’s Excellent Adventure,” which refers to Bush v. Gore adversaries Ted Olson and David Boies. The powerful legal eagles joined forces in Perry v. Schwarzenegger to challenge California’s Proposition 8 banning same-sex marriage.

The index and endnotes alone make for entertaining and illuminating reading. The many names and organizations from Hawaii alone include Neil Abercrombie, Ben Cayetano, John Waihee, ACLU Hawaii, First Unitarian Church of Honolulu, the Honolulu Advertiser, the Honolulu Star-Bulletin, Kamehameha V, Miss Gay Molokai Pageant, Jim Hochberg, Linda Rosehill, the Sodomy Roundtable, Blake Oshiro, Hula’s Bar & Lei Stand and Mike, Carol and Tulsi Gabbard.

Sasha Issenberg Carlos Chavarria

Mike Gabbard does not come off well in Issenberg’s telling: He had a knack for “seizing attention” but little in the way of organizational skills. Gabbard’s “supposed allies,” he says, “valued him only as a patsy.”

In 1991 Gabbard, who at the time had a radio program called “Let’s Talk Straight, Hawaii,” launched Stop Promoting Homosexuality Hawaii, although his “greater concern” at the time was the decision by Honolulu officials to award gay activist Bill Woods a permit for a second annual gay-pride parade.

While Gabbard became perhaps the most prominent face of the local opposition to marriage equality, the more effective opposition, Issenberg explains, came from the Church of Jesus Christ of Latter-day Saints and the Roman Catholic church. It was the LDS that paid for a PR campaign through McNeil Wilson Communications.

By November 1998, Hawaii voters by a 2-to-1 margin allowed for reserving marriage to opposite-sex couples, something the Hawaii Legislature soon did so statutorily. It was not until November 2013 that the Legislature, which convened in special session, sent a marriage equality bill to Gov. Abercrombie for his signature.

Gabbard, by then a state senator, voted “no” on the bill, as did Sens. Ron Kouchi, Donna Mercado Kim and Sam Slom while Sens. Donovan Dela Cruz and Brian Taniguchi were excused from the vote. In the 51-member House, 19 representatives opposed the bill including several who are still serving today: Henry Aquino, Ty Cullen, Sharon Har, Aaron Ling Johanson, Lauren Matsumoto, Bob McDermott, Jimmy Tokioka, Gene Ward, Justin Woodson and Ryan Yamane.

‘Permissible Discrimination’

Issenberg’s reporting on Hawaii is deep. Among the nuggets he shares are that Punahou School introduced an AIDS education program in 1984 followed by similar initiatives in Hawaii’s public schools. Hawaii was also the first state to approve a legal needle exchange, and “Honolulu’s two active bathhouses carried on without much debate.”

And he notes that Levinson was a member of the ACLU yet “discretely kept his membership active even while on the bench, in violation of ethics guidelines.”

Levinson provided some context to Issenberg’s reporting. He said that “at some point” while serving on the Supreme Court (1992 to 2008) he realized he was still an ACLU member but, embarrassed, soon canceled his membership.

“And as soon as I left I renewed and even served on their board,” he said.

The book also manages to invoke real drama, though not in a sensationalized fashion. Consider the following exchange before Hawaii’s high court in October 1992, when Deputy Attorney General Sonia Faust presented the state’s defense in Baehr.

Faust made the argument that there was no precedent for Hawaii to issue marriage licenses to the three gay couples. Here’s what came next:

Faust was barely a minute into her oral argument when the justice sitting to her far left spoke for the first time that day. “Put it another way,” James S. Burns said to her. “They want you not to discriminate against them.”

“Our position is that we are not discriminating against them,” she responded.

“Okay,” Burns followed up. “A male and a female walk in and they’re not married and they want a license; you give it to them. A male and a male walk in and want a license; you won’t give it to them. You are discriminating against them.”

“Our position,” said Faust, “is that that is permissible discrimination.”

“Well,” Burns replied, “let’s talk about that then.”
 “I’d like to,” Faust accepted.
 “That’s precisely the point,” Burns challenged her. “How is it permissible discrimination? You tell me; is it a fundamental right or a suspect class, or neither?”

“I believe it is neither,” Faust said.

“Okay,” Burns replied. “Is that a question of fact, or a question” — he pulled back a moment and reconsidered his words — “matter of law?”

“I believe it is a question of law,” she responded.

“As a matter of law, we don’t need to know any facts?” he pushed her. “We don’t need to know any facts?”

Burns, the son of former governor John A. Burns and at the time the chief judge of Hawaii’s Intermediate Court of Appeals, was assigned to sit in on the case to replace a recused associate justice.

‘Rainbow Town Hall’

Reached via email this week, Issenberg told me, “I knew basically nothing about Hawaii, or at least as little as I did about any state, when I started this. It was one of only a handful that I’d never visited as a political reporter, and I don’t think I’d ever read a book about or even knew anyone from Hawaii.”

Retired Judge Daniel Foley. Courtesy

Issenberg ended up making three reporting trips to Oahu, the first in early 2013. Foley said Issenberg also went through his papers at Bancroft Library’s Sexual Orientation and Social Conflict Collection at the University of California Berkeley.

On Tuesday evening, Issenberg will participate in what is being billed as “The Engagement Party and Rainbow Town Hall.”

The virtual event will celebrate the 30th anniversary of marriage equality in Hawaii. Dancel, one of the original plaintiffs, will be on hand as well as Foley, House Speaker Scott Saiki and state Sen. Chris Lee. Filmmaker Dean Hamer will moderate. Partial proceeds will go toward Honolulu Pride 2021 and the Hawaii LGBT Legacy Foundation.

Meanwhile, Issenberg tells me that he hopes to make it back to Hawaii sometime later this year, assuming pandemic conditions permit it, “to talk about this important period in the state’s history.”


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About the Author

Chad Blair

Chad Blair is the politics and opinion editor for Civil Beat. You can reach him by email at cblair@civilbeat.org or follow him on Twitter at @chadblairCB.


Latest Comments (0)

A lot has happened since the 1990s when the Hawaii Supreme Court wanted to usurp the power of the Hawaii State Legislature. Back then, nearly three-fourths of Hawaii voters said "no" to same-sex marriage and "no" to the court's efforts to legislate from the bench in Baehr v. Lewin.In the Baehr case, the majority decision was made by 3 people -- two supreme court justices and one ICA judge -- and the decision was lambasted by scores of scholars across the country as a tortured exercise in ends justify the means legal gymnastics. But by the mid 2010s, the mindset of many residents had changed as reflected by the legislature.Lesson: the judiciary is made up of a few appointed officials; it isn't and shouldn't be in the business of making new law, no matter how compelling that might seem -- that's why we have a democracy with many representatives elected by the people.

Kanaka · 2 weeks ago

Many original items related to the Hawaii fight for marriage equality have been deposited at UHM's Hamilton Library, in a special archive collection founded by Dr. David McEwan and Prof. L. Thomas Ramsey (myself).  Access is now limited due to Covid-19, but that is temporary.  The collection has fascinating items such as full page newspaper ads, articles and cartoons; many pamphlets from various sources; some videos and books, both hard to find these days; and even some T-shirts and buttons.  Some of the TV ads still rub nerves raw today.  The archive attempts to document for future generations a unique 35 year period in Hawaii, when the HIV pandemic preceded   the fight for marriage equality and set the context.

TomRamsey · 2 weeks ago

I have a strong feeling that our views on marriage will continue to evolve as we continue to seek a better balance between the interests of the individuals and the interests of the state. 1) Civil unions as an alternative to marriage continue to be denied to opposite-sex couples in many jurisdictions that allow them for same-sex couples (Quebec and a few countries in Western Europe are notable exceptions); 2) There is a considerable amount of opposition to same-sex marriage within the LGBT community itself, mostly for reasons that are progressive rather than conservative; 3) There are voices from all corners of the ideological spectrum that argue that the tax benefits and legal ramifications of a union of two people, regardless of what it is called and whether it is same-sex or opposite-sex, should be tied exclusively to the presence, number and ages of children in the relationship. It would probably take another 20-30 years for all these topics to get hashed out.

Chiquita · 2 weeks ago

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