LGBT history in Hawaii

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Baehr v. Lewin(1993)
Baehr v. Miike (1996, 1999)
Constitutional Amendment 2 (1998)
House Bill 444 (2009)
Senate Bill 232 (2011)
Hawaii Marriage Equality Act (2013)
Equality Hawaii
LGBT rights in the United States
Same-sex marriage in Hawaii
Reciprocal beneficiary relationships in Hawaii
LGBT history in Hawaii
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In Hawaii, the LGBT laws have been evolving for the past hundred years. In the pre-19th century, the influence of Polynesian culture led to a more open-minded state. After the first Christian missionaries began arriving in Hawaii, strict sodomy laws were enacted. Territory v. Bell (1958) was the last sodomy case argued in Hawaii. After the turn of the 20th century, LGBT issues began being taken to and decided by the Supreme Court. In 2013, Hawaii voted in favor of gay marriage, and marriage licenses began to be issued to LGBT couples.

Contents

Pre-19th century

In the Polynesian culture, which had spread to Hawaii, the māhū were classified as a third gender of person alongside male and female persons.

Aikāne relationships were widely practiced and accepted by precolonial Hawaiian society.

19th century

The first Christian missionaries to arrive in Hawaii were adept at encouraging locals and officials to convert to Christianity and observe Christian morality, succeeding in converting Kamehameha III. Under Kamehameha III, the Blue Laws were enacted in 1833, [1] prohibiting a number of activities which were common to the Hawaiian population. A set of three statutes enacted in 1844 would criminalize vagrancy, lewdness and undefined crimes. An explicit sodomy law was enacted in 1850, punishing offenders with a fine of up to $1,000 and confinement at hard labor for up to 20 years. Eventually, an 1876 law allowed trial juries to convict offenders of assault to commit sodomy if actual sodomy could not be proven.

The first reported sodomy trial case before the Hawaii Supreme Court (by this time under the Republican government), Republic of Hawaii v. Edwards (1898), resulted in a conviction. [2]

20th century

However, in 1900's Ex Parte Edwards, the defendant from the prior trial was ordered to be released by the Territorial Supreme Court, as his prior trial under the Republican government had taken place without an indictment, as was required by U.S. law.

Numerous convictions would be upheld by the Supreme Court for the first few decades of the 20th century. The 1949 "disorderly conduct" law enacted in the Territory also prohibited solicitation or loitering of same-sex sexual favors in public places.

1950–1969

In 1958, the last reported Supreme Court case of sodomy in Hawaii, Territory v. Bell, held that persons of the opposite sex could also be convicted for the offense of sodomy.

1970–1989

In 1972, the criminal code was substantially revised. Among other things, the revision retained the abrogation of common-law crimes, eliminated the solicitation provision of the disorderly conduct law, abolished the crime against nature law and set varying ages of consent for different sexual activities. [3]

In 1978, the constitution was amended to provide the right to privacy for the first time. Despite the State v. Mueller (1983) ruling which interpreted this amendment conservatively and ruled out any consideration for sexual privacy, the State legislature acted in 1986 to lower the age of consent to 14 years of age, the lowest in the nation at the time.

1990–1994

On December 10, 1990, three same-sex couples applied for marriage licenses at the Hawaii Department of Health. When denied licenses, the couples sue to have the prohibition on licenses for same-sex couples declared unconstitutional and discriminatory, resulting in Baehr v. Miike (originally Baehr v. Lewin). After the case was dismissed by the trial court, the couples appealed to the State Supreme Court. In the plurality opinion delivered by Judge Steven H. Levinson in 1993, the court ruled that while the right to privacy in the Hawaii state constitution does not include a fundamental right to same-sex marriage, denying marriage to same-sex couples constituted discrimination based on sex in violation of the constitutional right to equal protection. The court remanded the case to the trial court, instructing that "in accordance with the 'strict scrutiny' standard, the burden will rest on Lewin to overcome the presumption that HRS § 572-1 [the state's marriage statute] is unconstitutional by demonstrating that it furthers compelling state interests and is narrowly drawn to avoid unnecessary abridgments of constitutional rights." [4]

1995–1999

In 1996, in Baehr v. Miike , Judge Kevin K.S. Chang ruled that the State did not meet its evidentiary burden. It did not prove that the State had a compelling interest in denying marriage licenses to same-sex couples and even assuming that it had it did not prove that HRS § 572-1 was narrowly tailored to avoid unnecessary abridgement of constitutional rights. He enjoined the State from refusing to issue marriage licenses to otherwise-qualified same-sex couples. [5] The following day Chang stayed his ruling, acknowledging the "legally untenable" position couples would be in should the Hawaii Supreme Court reverse him on appeal. [6]

In 1997, reciprocal beneficiary relationships were enacted into law by the State Legislature, marking the first state recognition of same-sex couples. It was intended to be an alternative to the same-sex marriages which were currently being debated in the Supreme Court trial.

In 1998, the legislature referred Constitutional Amendment 2, a constitutional amendment empowering the Hawaii State Legislature to limit marriage to mixed-sex couples, [7] to the plebiscite for approval. The amendment won and was enacted by a total of 69.2–28.6%. [8]

On December 9, 1999, the Hawaii Supreme Court, following the passage of the amendment, ruled that "The passage of the marriage amendment placed HRS § 572-1 on new footing. The marriage amendment validated HRS § 572-1 by taking the statute out of the ambit of the equal protection clause of the Hawai'i Constitution, at least insofar as the statute, both on its face and as applied, purported to limit access to the marital status to opposite-sex couples. Accordingly, whether or not in the past it was violative of the equal protection clause in the foregoing respect, HRS § 572-1 no longer is. In light of the marriage amendment, HRS § 572-1 must be given full force and effect." Because the remedy sought by the plaintiffs – access to marriage licenses – was no longer available, this reversed Chang's ruling and remanded the case for entry of judgment in favor of the defendant. [9]

21st century

2001–2009

In 2001, the Legislature reversed itself and raised the age of consent from 14 to 16. When then-Governor Ben Cayetano vetoed the bill, the Legislature overrode his veto, the first legislative override in the state's history.

In 2006, Joe Bertram became the first openly LGBT member of the Hawaii State Legislature, serving in the office until 2011.

In 2009, Hawaii House Bill 444 became the first pro-civil unions bill to pass committee level. It was passed in February by the House of Representatives and was referred to the Senate for approval. However, it remained on the table for the 2009 session.

2010–present

Hawaii House Bill 444 continued to remain in limbo in the Senate for much of the 2010 session. It was finally passed on April 29, 2010. Then-governor Linda Lingle vetoed the bill on July 6, saying that such matters regarding same-sex unions should be decided by a referendum.

The bill and its defeat figured in the following gubernatorial election, with Neil Abercrombie coming out in support of the bill and opponent Duke Aiona coming out against. Abercrombie won the election, and the Democratic majority in both chambers set to enact the bill. The new bill, Hawaii Senate Bill 232, was passed on January 26, 2011, by the Senate Judiciary and Labor Committee in a 3-2 vote [10] and was passed by the full Senate 19-6 on January 28. [11] A modification to the bill was then made in the House of Representatives before passage on February 11 by a vote of 31-19,; [12] [13] the Senate passed the modified bill on February 16 by a vote of 18-5.

Abercrombie's office confirmed after the passage of the bill by the Legislature that he would sign the bill within 10 legislative days of the passage. The bill was signed into law under the name Act 1 [14] on February 23. [15]

Blake Oshiro became the first openly gay majority leader in the House of Representatives on May 3, 2010, during the debate over the bill. [16] He was re-elected to his seat in the election.

On December 17, 2013, Genora Dancel, one of the original plaintiffs who was denied the right to obtain her marriage license in the state of Hawaii back in 1990, legally married her partner Kathryn Dennis in Honolulu, Hawaii at Aliiolani Hale (The Hawaii Supreme Court). The honorable Dan Foley, who now serves as Intermediate Court of Appeals judge in Hawaii, presided over the marriage ceremony. Foley married the couple in the same Supreme Court room where he represented Dancel in 1990. Dancel and Dennis were married on the 23rd anniversary that Dancel was denied a marriage license. [17]

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Steven H. Levinson is a former Associate Justice of the Supreme Court of Hawaii. Levinson served his first term from 1992 to 2002 and was retained by the Judicial Selection Commission to serve a second ten-year term. He retired from the court, effective December 31, 2008.

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<i>Baehr v. Miike</i> Lawsuit against Hawaiis prohibition of same-sex marriage

Baehr v. Miike was a lawsuit in which three same-sex couples argued that Hawaii's prohibition of same-sex marriage violated the state constitution. Initiated in 1990, as the case moved through the state courts, the passage of an amendment to the state constitution in 1998 led to the dismissal of the case in 1999. The Full Faith and Credit Clause of the Constitution would have provided that all states would be potentially required to recognize marriages obtained in Hawaii, prompting the passage of the federal Defense of Marriage Act (DOMA) in 1996 under Bill Clinton. Dozens of statutes and constitutional amendments banning same-sex unions at the state level also followed Baehr.

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<span class="mw-page-title-main">LGBT rights in Hawaii</span>

Lesbian, gay, bisexual, and transgender (LGBT) persons in the U.S. state of Hawaii enjoy the same rights as non-LGBT people. Same-sex sexual activity has been legal since 1973; Hawaii being one of the first six states to legalize it. In 1993, a ruling by the Hawaiʻi Supreme Court made Hawaii the first state to consider legalizing same-sex marriage. Following the approval of the Hawaii Marriage Equality Act in November 2013, same-sex couples have been allowed to marry on the islands. Additionally, Hawaii law prohibits discrimination on the basis of both sexual orientation and gender identity, and the use of conversion therapy on minors has been banned since July 2018. Gay and lesbian couples enjoy the same rights, benefits and treatment as opposite-sex couples, including the right to marry and adopt.

<span class="mw-page-title-main">LGBT rights in Colorado</span>

Lesbian, gay, bisexual, and transgender (LGBT) persons in the U.S. state of Colorado enjoy most of the same rights as non-LGBT people. Same-sex sexual activity has been legal in Colorado since 1972. Same-sex marriage has been recognized since October 2014, and the state enacted civil unions in 2013, which provide some of the rights and benefits of marriage. State law also prohibits discrimination on account of sexual orientation and gender identity in employment, housing and public accommodations and the use of conversion therapy on minors. In July 2020, Colorado became the 11th US state to abolish the gay panic defense.

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<span class="mw-page-title-main">Hawaii Marriage Equality Act</span> Hawaiʻi law allowing same-sex marriages

The Hawaii Marriage Equality Act of 2013 is legislation passed by the Hawaii State Legislature as Senate Bill 1 (SB1) and signed by Governor Neil Abercrombie which legalized same-sex marriage in the U.S. state of Hawaii. Prior to the bill's enactment, same-sex couples in the state of Hawaii were allowed to form civil unions or reciprocal beneficiary relationships ; however, civil unions are both legally limited to civil officials in their performance and unrecognized by the federal government, and RBRs are even more limited by the rights and privileges accorded.

In the United States, the history of same-sex marriage dates from the early 1940s, when the first lawsuits seeking legal recognition of same-sex relationships brought the question of civil marriage rights and benefits for same-sex couples to public attention though they proved unsuccessful. However marriage wasn't a request for the LGBTQ movement until the Second National March on Washington for Lesbian and Gay Rights in Washington (1987). The subject became increasingly prominent in U.S. politics following the 1993 Hawaii Supreme Court decision in Baehr v. Miike that suggested the possibility that the state's prohibition might be unconstitutional. That decision was met by actions at both the federal and state level to restrict marriage to male-female couples, notably the enactment at the federal level of the Defense of Marriage Act.

Daniel R. Foley is an American retired attorney and judge, who served on the Hawaii Intermediate Court of Appeals from 2000 to 2016. A civil rights attorney known for his support of legalizing same-sex marriage, Foley was appointed by Governor Ben Cayetano in July 2000 and confirmed in August of that year. Known primarily for representing three couples in Baehr v. Miike, the first American case in which gay couples sued a state for the right to marry, Foley was appointed to the Supreme Court of Palau as an Associate Justice in 2011.

References

  1. ↑ Hawaii's 'Blue' Laws. Constitution and Laws of 1840. A Practical Illustration of the Missionaries' Love for the HAWAIIANS. [Honolulu?]:Holomua Publishing Company. 1894.
  2. ↑ 11 Haw. 571, decided Nov. 4, 1898.
  3. ↑ Laws of Hawaii 1972, page 32, Act 9, enacted Apr. 7, 1972, effective Jan. 1, 1973.
  4. ↑ Baehr v. Lewin 74 Haw. 530, 852 P.2d 44 (1993), reconsideration and clarification granted in part, 74 Haw. 645, 852 P.2d 74 (1993)
  5. ↑ Baehr v. Miike, Circuit Court for the First Circuit, Hawaii No. 91-1394
  6. ↑ Oshiro, Sandra (1996-12-06). "Hawaiian judge puts same-sex marriage ruling on hold". The Nation. Thailand: Reuter. p. A12. Retrieved 2010-08-18.
  7. ↑ Hawai'i State Constitution Archived 2010-07-30 at the Wayback Machine , Article I, section 23, Hawaii Legislative Reference Bureau.
  8. ↑ General Election 1998, Hawaii Office of Elections, 1998-11-03, retrieved 2010-07-06
  9. ↑ Baehr v. Miike ,No. 20371(Hawaii Supreme Court1999-12-09).
  10. ↑ Staff (Jan 24, 2011). "Civil unions bill advances out of Senate committee". Honolulu Star Adviser.
  11. ↑ "Hawaii Senate approves same-sex civil unions". Associated Press via NECN Boston. Jan 28, 2011. Archived from the original on 2012-09-09.
  12. ↑ "Hawaii House passes same-sex civil unions bill". KHON 2. Associated Press. February 11, 2011. Archived from the original on February 12, 2011.
  13. ↑ BJ Reyes (Feb 11, 2011). "House approves civil unions bill in 31-19 vote". Honolulu Star-Advertiser.
  14. ↑ Chad Blair (February 23, 2011). "Hawaii Civil Unions Signed Into Law". Honolulu Civil Beat. Archived from the original on July 8, 2011.
  15. ↑ B.J. Reyes (February 23, 2011). "Hawaii now seventh state to legalize civil unions". Honolulu Star-Advertiser.
  16. ↑ "Gay Hawaiian Rep Talks Civil Unions" Archived 2011-06-05 at the Wayback Machine . The Advocate , May 3, 2010.
  17. ↑ Staff Reports (2013-12-18). "Hawaii same-sex marriage pioneer who sparked national debate weds partner". LGBTQ Nation. Retrieved 2018-06-15.
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