Gay Marriage Battle Nears End in Hawaii, the First Front Line

Jim Wilson/The New York Times

At Hawaii’s Capitol, Maddie Sesepasara showed her support Friday for legalizing gay marriage.

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HONOLULU — When, as most everyone expects, Gov. Neil Abercrombie signs into law same-sex marriage here in the coming days, it may almost seem like a routine event. Hawaii is poised to be among 16 states to approve gay marriage, along with Illinois and shortly after Minnesota, New Jersey and Rhode Island.

But the step in Hawaii has special resonance because the contemporary battle over same-sex marriage was born here two decades ago. Such marriages existed nowhere when Ninia Baehr and Genora Dancel, along with two other couples, filed what seemed like an utterly quixotic lawsuit seeking a marriage license. To near universal shock, Hawaii’s Supreme Court granted them a victory in 1993, ruling that a refusal to allow gay and lesbian couples to marry was discriminatory and illegal.

It was the first judicial expression of an idea that soon caught fire across the country and the world.

The ruling prompted a national backlash, with Congress barring federal recognition of same-sex marriage and dozens of states amending their constitutions to define marriage as between a man and a woman, and it was even overruled by Hawaii’s voters. But it also opened a huge new front for the gay rights movement, laying the groundwork for scores of legal and political battles ever since.

So when it became clear this week in a raucous special session of the State Legislature that same-sex marriage would finally come to Hawaii, it was the closing of a circle.

“I’ve got what we Hawaiians call chicken skin — goose bumps,” said Daniel R. Foley, now a state judge. As a private lawyer in Honolulu in 1990, he took on the case of same-sex couples seeking marriage licenses after national rights groups had declined it as far-fetched.

On Friday, hundreds of gleeful advocates of same-sex marriage waved rainbow flags at the Capitol while hundreds of opponents shouted “Let the people decide” and sang “God Bless America.” Friday night, after a day of emotional debate, the House of Representatives passed the bill to expand marriage rights, making its final adoption next week a near certainty as it heads to the Senate before being signed by the governor.

The 1993 Hawaii ruling spurred advocacy groups to make marriage equality a prime goal. It energized campaigns that would bring the country’s first civil unions in Vermont in 2000 and the country’s first same-sex marriage vows in Massachusetts only nine years ago.

“The case in Hawaii launched the global movement for the right to marry,” said Evan Wolfson, president of Freedom to Marry, based in New York, and a longtime strategist on the issue who became co-counsel with Mr. Foley in the follow-up litigation.

Mary L. Bonauto, another legal advocate for same-sex marriage, said that “Hawaii really encouraged people on the marriage issue; it showed that a court can get it.”

Today, more than 30 lawsuits in at least 20 states are testing marriage restrictions in what Ms. Bonauto, a project director of Gay and Lesbian Advocates and Defenders, in Boston, called an “explosion in litigation.” They include challenges to state amendments barring same-sex marriage in Nevada and Virginia, demands that Texas grant divorces to same-sex couples married elsewhere and a suit to be decided soon in New Mexico arguing that same-sex marriages are permitted by state law.

For Steven H. Levinson, the State Supreme Court justice who wrote the 1993 opinion in Baehr v. Lewin, it is a moment of reckoning. He looks back on his failure to grasp the forces that were unleashed.

The few previous suits pushing for same-sex marriage in other states “had been laughed out of court,” Mr. Levinson recalled. “I soon realized that this opinion was going to be major.”

“But I was naïve about how the Baehr decision would be received,” he said between meetings this week at the State Capitol, where in retirement he has helped campaign for the long-elusive legislative victory.

Correction: November 9, 2013

An earlier version of this article misstated the name of a former state Supreme Court justice on second reference. It was Steven H. Levinson who said previous suits pushing for same-sex marriage in other states “had been laughed out of court,” not Mr. Stevenson
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