Reflections On The Respect For Marriage Act - Honolulu Civil Beat

About the Author

Daniel Foley

Daniel Foley is a former associate justice on the Hawaii Intermediate Court of Appeals and a prominent attorney known for his civil rights record.

The United States Congress will pass the Respect for Marriage Act and President Biden will sign it into law in December 2022. The act will repeal the 1996 Defense of Marriage Act that rejected same-sex marriage, and require federal and state governments to recognize same-sex marriages.

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As the attorney who filed the first successful same-sex marriage case in Hawaii in 1991, Baehr v. Lewin, I am deeply moved by what has transpired in the last 31 years — from zero states and countries recognizing same-sex marriage to all 50 states and 30-plus countries recognizing same-sex marriage today.

When Baehr v. Lewin was filed in 1991, same-sex marriage was considered an oxymoron. Few, other than the plaintiffs in the lawsuit, believed it was possible.

Then on May 5, 1993, the Hawaii Supreme Court issued a decision that said the three same-sex couples had the constitutional right to marry unless the state of Hawaii could demonstrate a compelling state interest in denying the marriage licenses.

There was shock in Hawaii and across the nation. People asked — how can that be, same-sex couples can’t marry, marriage is between a man and a woman?

I remember a CNN reporter flying to Hawaii a few days after the decision was issued, sitting in front of me at my office and asking, “Is this really happening, am I missing something, aren’t you concerned about a backlash?”

Arguments were held at the U.S. Supreme Court for same-sex marriage on April 28, 2015. Flickr: Ted Eytan

I naively responded that I didn’t think there would be much of a backlash. Same-sex couples lived together, with and without children, as families, but were just not legally recognized and given the rights and benefits of marriage.

I said opposite-sex marriage would not be affected. I said once those uncomfortable with the idea of same-sex marriage see same-sex marriages, that no harm comes from them, that no one would be forced to enter a same-sex marriage and no church would be required to recognize one, then the shock would wear off, and the public would come around.

Boy, was I wrong. There was a backlash in Hawaii and across the nation with states adopting statutes and constitutional amendments rejecting same-sex marriage and the Congress enacting DOMA.

‘Compelling State Interest’

After a Hawaii judge in December 1996 ruled that the state of Hawaii failed to demonstrate a compelling state interest after a two week trial where experts in psychology, psychiatry, sociology and pediatrics testified that same-sex marriage would be beneficial to families of same-sex couples and parents and have no detrimental impact on the families of opposite-sex couples or society at large, the Hawaii legislature in 1997 proposed a constitutional amendment authorizing itself to ban same-sex marriage.

The amendment was adopted by an overwhelming majority of 69% of the voters in 1998.

But it didn’t end there. Largely due to the energy and leadership of my co-counsel in Baehr v. Lewin, Evan Wolfson, and attorney Mary Bonauto, same-sex marriage cases were filed in Vermont and Massachusetts, with a civil unions victory in Vermont in 2000 (almost marriage) and a complete victory in Massachusetts in 2003.

With that, things began to change. Finally, the public was able to see same-sex couples and families were not so different after all (as I told that CNN reporter).

However, the fight continued between proponents and opponents of same-sex marriage, state by state, in the courts and legislatures, with more and more states recognizing same-sex marriage and public opinion changing from opposition to support.

Finally in 2013, the United States Supreme Court overturned DOMA as unconstitutional discrimination against same-sex couples and in 2015 the same court ruled states could not ban same-sex marriage. Complete victory was achieved in just 24 years from the time Baehr v. Lewin was filed in Hawaii. A remarkable achievement for a civil rights movement.

But it turns out, it wasn’t over. The United States Supreme Court, with a turnover in justices, made the court a threat to civil rights and established precedent, overturning a woman’s constitutional right to abortion and threatening to do the same with same-sex marriage.

Hawaii can be proud of initiating the marriage equality movement.

That is why the Respect for Marriage Act became so important. And that is why its enactment into law, supported by Democrats and Republicans (no small achievement) and now 70% of the American public is reason for celebration and reflection.

The Reverend Martin Luther King Jr. once said, “The arc of the moral universe is long, but it bends toward justice.” However, that bending requires tremendous effort and persistence by those who believe in justice.

Hawaii can be proud of initiating the marriage equality movement, despite its ups and downs along the way (Hawaii became the 15th state to approve same-sex marriage in 2013, after the Supreme Court overturned DOMA).

Those of you who have been part of this movement can be proud as well as you watch President Biden sign the Respect for Marriage Act into law. Mahalo to you all.

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About the Author

Daniel Foley

Daniel Foley is a former associate justice on the Hawaii Intermediate Court of Appeals and a prominent attorney known for his civil rights record.

Latest Comments (0)

mahalo judge!

BEN · 6 months ago

Appreciate the background story on Hawaii's past with the rainbow crew. I'm also pleased that Biden signed it into law. Keep up the good work Dan!

Scotty_Poppins · 6 months ago

"Boy, was I wrong. There was a backlash....But it didn’t end there.....things began to change. Finally, the public was able to see same-sex couples and families were not so different after all"The arc of social change is slow, uncomfortable, and difficult in the land of the free and home of the Brave.Thanks for being an agent of change, Mr. Foley.

Joseppi · 6 months ago

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