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Judge OKs same-sex marriages Ruling in Hawaii applies only to that state; Appeal is expected; Test case involved three couples, 1 living in Baltimore


WASHINGTON -- Homosexual couples have the same right as others to marry in Hawaii, a state judge ruled yesterday in a historic sex-discrimination case that could send social and political echoes through other states.

The ruling by Circuit Judge Kevin S. C. Chang, sure to be appealed to the Hawaii Supreme Court, marks the first time any state's marriage law has been required to include same-sex unions.

"In Hawaii, and elsewhere, same-sex couples can, and do, have successful, loving and committed relationships," the judge declared.

The state failed, he said, to show that allowing same-sex marriages would destroy "the institution of traditional marriage."

Chang also said the state had not convinced him that permitting same-sex marriage would be harmful to children raised in such households.

"Gay and lesbian parents and same-sex couples can be as fit and loving parents as non-gay men and women and different-sex couples," he declared.

He ordered state officials not to use a couple's sex as a basis for denying a marriage license -- a temporary victory for three same-sex couples, including a couple now living in Baltimore: Ninia Baehr and Genora Dancel.

His decision may turn out to be as much symbol as real, at least in the short term: It was confined to Hawaii, was based only on that state's constitution, and is threatened by a campaign to change the Hawaii Constitution to see that no same-sex marriages occur.

In November, a ballot measure calling for a constitutional convention passed with a bare 50.6 percent majority. Any amendment that results must be put before the state's voters.

Marriage is one of two basic social institutions that gay rights activists have campaigned to open to homosexuals.

The other is military service; the right of gays and lesbians to serve in the military is under review in federal courts.

The marriage issue has been an emotionally charged civil rights fight in Hawaii for more than five years, and it still roils the state's political and judicial waters.

Beyond Hawaii, there may be other limits to the newly gained right of homosexuals to marry.

A federal law passed by Congress this year and signed by President Clinton allows other states to refuse to recognize any same-sex marriages that might be allowed somewhere else. Sixteen states have adopted such bans.

Similar proposed bans have been rejected in 20 states, including Maryland.

The new federal law also denies married homosexuals any federal benefits keyed to marriage. A constitutional challenge to the federal law, eventually reaching the Supreme Court, is likely in the future, gay rights advocates have said.

The ruling yesterday, and any future decision by the Hawaii Supreme Court, could not be appealed to the Supreme Court because they are based solely on the state constitution.

Hawaii's marriage law defines a legal marriage as one between "the man and woman." The Hawaii Supreme Court had ruled in May 1993 that the law would violate the state constitution's guarantee of sex equality -- unless the state could offer reasons, at a trial in Chang's court, to justify treating homosexuals differently.

Chang ruled yesterday that the state had failed that test; he rejected every reason the state had given for its law.

Lawyers for the state claimed that children would be harmed by being raised by homosexuals, individually or as couples.

The state also contended that its law fosters the birth of children within traditional marriage, protects the state from claims for benefits based on marriage, protects the recognition elsewhere of marriages licensed in Hawaii and protects religious groups in Hawaii from having their state endorse marriages they oppose as a matter of belief.

The Baltimore couple involved in the case hopes to return to Hawaii to obtain a license and marry.

"I'm looking forward to our love getting us to our wedding on a mountain slope in Maui," Baehr said in a statement.

Dancel added: "While we face much more work ahead to secure this right nationally, Ninia and I are deeply honored to be part of today's victory."

Kerry Lobel, executive director of the National Gay and Lesbian Task Force, described the decision as "one small but crucial step forward in a long march toward civil equality" for homosexuals and bisexuals.

Rep. Bob Barr, a Georgia Republican and chief sponsor of the federal law against same-sex marriage, said the ruling vindicated the effort to pass such a law. Without the law, he said, there would have been "an onslaught of cases in the state courts around the country demanding legal recognition of same-sex marriage."

The law, he said, "holds the line against homosexual extremists to claim for themselves the institution of marriage. It also prevents a potential raid on the federal Treasury by homosexual activists claiming 'spousal status.' "

Robert Knight, director of Cultural Studies for the Family Research Council, a group that is working nationwide against same-sex marriage, said the Hawaii judge "has ignored the wisdom of the ages, the will of the Hawaiian people and ample evidence of the state's compelling interest in preserving this vital institution."

State officials did not react immediately. They had promised an appeal to the state Supreme Court if same-sex marriages were allowed.

In their challenge to Hawaii's marriage law, Baehr and Dancel, along with another lesbian couple and a gay couple, made two claims under the state constitution: that their right of privacy included the right to marry, and that their right to equality based on sex granted them the same opportunity as heterosexual couples to be married. They made no claim based on the U.S. Constitution.

The state Supreme Court, in its 1993 ruling, rejected their privacy-right claim but said they could not be denied equal treatment merely because they were of the same sex -- unless the state offered a "compelling" reason for treating them differently.

Chang said there was no basis for "withholding the legal status of marriage" from lesbian and gay couples.

Pub Date: 12/04/96

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