Full Faith and Credit for Same-Sex Marriages?

Abstract

On 5 May 1993, the Hawaii Supreme Court handed down a now wellknown decision in Baehr v. Lewin, a case involving same-sex marriages.' In Baehr, the court held by a three-to-one margin that the state's marriage statute, which restricts the status (and benefits) of marriage to male-female couples, discriminates on the basis of sex. Under the terms of the Hawaii state constitution's equal protection clause, such discrimination is permissible only if it serves a compelling state interest.2 The court reversed a lower-court decision that had employed a lower level of scrutiny, a rational-basis test to uphold the restrictions on same-sex marriages. It then remanded the case to a lower court for retrial under a strict-scrutiny standard. On 3 December of last year, the lower court held the state's ban on same-sex marriages unconstitutional.3 Barring an amendment to the state's constitution, all that stands in the way of same-sex marriages in Hawaii is a final appeal to the state's highest court. Given its past votes on the issue and its increasingly liberal composition, the court is unlikely to hold that the state has a compelling interest in banning such marriages.