I am calling for a special legislative session because we must ensure the civil rights of every citizen are protected. There is no reason to deny the benefits of marriage to any individual. Marriage is a choice that is made by people who want to make a lifelong commitment. This is a right that is as sacred as our right to vote.
I am asking legislators to vote during the special session to allow same-sex couples to be legally married.
— Governor Neil Abercrombie, September 9, 2013
In 1993 I was working for the Hawai’i House of Representatives, in the House Majority Staff Office (and when I say majority I mean majority: 47 Democrats; 4 Republicans).
That was the year the Hawai’i State Supreme Court ruled in Baehr v. Lewin that not granting marriage licenses to same-sex couples was discriminatory under the state’s constitution. The ruling did not grant same-sex couples an immediate right to marry. Instead, the Supreme Court kicked it back to the lower courts, instructing the defendant, the State Attorney, that it would need to show a compelling state interest for refusing marriage licenses to same-sex couples.
“Compelling state interest” is a high constitutional legal standard. Suddenly, same-sex marriage was on the agenda in Hawai’i — the first time it had been on the agenda in any state. The repercussions were obvious immediately, to both supporters and opponents. Marriages in any one state are recognized by all states, per the Full Faith and Credit Clause of the Constitution. If Hawai’i were to sanction same-sex marriage, it could be a de facto legalization of same-sex marriage nationwide. People got into gear.
That session, I’d been assigned to the Judiciary Committee and was advising Terrance Tom, the Judiciary Committee Chair. Same-sex marriage was not something that Representative Tom or his Chief of Staff, Rich Dvonch, wanted to deal with that year. But Baehr v. Lewin meant one of two things: Hawai’i was going to allow same-sex marriage through the courts – the first state to do so — or the legislature was going to enact a law that would give the State Attorney a compelling reason to deny marriage licenses to same-sex couples.
What the Legislature might do, exactly, was not clear. But the first step in any legislative action is to hold hearings. So in the fall of 1993 the Hawai’i House of Representatives’ Judiciary Committee scheduled statewide hearings on same-sex marriage.
Statewide hearings in Hawai’i are not as straightforward as on the mainland. Island-hopping is required. We decided to start with the outer islands and finish up on O’ahu. Our first hearing was on Kauai.
Kauai is a sparsely populated island famous for its gorgeous white beaches and stunning windward side cliffs — the Na Pali Coast. We anticipated a fairly quiet hearing. We had our usual system in place. The Chair would read a statement and then we’d let people speak — if they wanted to speak — in the order in which they showed up. I’m not even sure the Representative from Kauai was present. All very low-key.
Except that it wasn’t. People — a lot of people — were at the hearing location before we were. Small buses emblazoned with church names sat outside. As we unlocked the door, we were rushed. “Who do we give the testimony to?” “When can I speak?” “Who is speaking first?” “How is the order decided?” We got inside and set up a sign-up sheet.
The room filled up. Filled and overfilled. More buses arrived. When Chairman Tom gaveled in the proceedings, it was standing-room only with overflow to the outside. After the Chair read his statement, we opened up the floor for testimony.
None of us were prepared for what followed. Up in the offices of the State Capitol, we’d been thinking about the constitutional and legal issues, what it would mean to legalize gay marriage; what the State Attorney’s office could consider a “compelling state interest” in prohibiting gay marriage; whether the other states would have to accept marriages made in Hawai’i, were it legalized here; what, if any, economic consequences Hawai’i would face.
The testimony that night did not address constitutional issues, or economic issues, or issues of fairness. The testimony was directed at homosexuality itself, and the idea that if Hawai’i sanctioned same-sex marriage, it would be saying that homosexuality is ok.
The bulk of the people who testified that night wanted us to know that homosexuality is not ok. Homosexuality, we were told, is a deviant lifestyle choice taken on for its promise of hedonism, sexual liberality and freedom from any kind of commitment or family responsibility.
In testimony that night we heard that boys become homosexuals when they are seduced by older men (most of the testimony against gay marriage referred only to homosexual men). Many of those testifying stated that having sex with boys is a core component of the gay lifestyle; that homosexuals are predators and pedophiles at heart.
If Hawai’i permitted same-sex marriage, those testifying that night argued, the deviant homosexual lifestyle would be sanctioned by the state. We’d have to “teach homosexuality” in the public schools. We’d be giving them permission to expand their predatory ways and recruit more young boys into the fold.
And so it went on. Speaker after speaker on the evils of homosexuality and the threat to society posed by same-sex marriage. The assembled crowd applauded and cheered. A few institutions testified in favor: the ACLU, the Hawai’i Civil Rights Commission. They were not warmly received. Chairman Tom tried numerous times to gavel the crowd into decorum, but could not quiet the loud support for anti-homosexual views.
And then a moment. A young man, slim and visibly shaking, came up to the microphone and identified himself as a gay man who supported same-sex marriage. In that room, at that moment, this was an act of heroism. It was not just gay marriage he was defending. It was himself, who he was, how he lived and who he loved. His voice was shaking and his speech was unpolished. His reception was hostile. With every thoughtwave I could muster, I willed him the courage to keep going. This time, Chairman Tom brooked no unruliness. He forced the crowd to be quiet and allow this man to speak. For the most part, they did.
After him, a few more speakers that night rose in support of same-sex marriage. Many, many more rose against it. We never had the crowd entirely under control (extraordinary in a legislative hearing) but every person who wanted to speak was heard.
We blamed ourselves entirely for the chaos. The Chair — who was by no means a gay rights supporter — felt he’d let that side down. I think he found it particularly upsetting that people exercising their right to speak at a public hearing — his hearing, in his hearing room, were made to feel threatened and unsafe.
We never let that happen again. At every future hearing we required 30 copies of written testimony in advance from anyone who wished to speak, with the speaking order determined by the order in which we received the testimony. Chairman Tom began each hearing with a strict delineation of the rules and conduct. People did not stick to it completely on such an emotional issue. But we never again had the chaos of Kauai.
I remember the distinct character of every hearing after that.
In Kona, opponents far outnumbered supporters again, and the atmosphere was angry and hostile. In Hilo, supporters outnumbered opponents (frankly, I found this a relief — a break from the nonstop homophobia). In Lahaina (Maui, Speaker Joe Souki’s district), the Speaker attended and was unexpectedly moved by the testimony of the many, many individuals who spoke in favor of gay marriage. Back on O’ahu, in late October, the hearing was held in the Mabel Smyth Auditorium, which was packed, and lasted over seven hours. Somewhat more people spoke in favor of gay marriage than against.
By O’ahu, some of the opponents had changed their language. There was more emphasis on protecting families and children and less on homosexual deviancy. Though homophobia was not entirely off the agenda.
The Christian Coalition, in a seven-page statement, testified that “[t]he homosexual lifestyle is deviant at its basis with promiscuity as the norm.” This statement was backed up with reports and statistics, including the remarkable statement that “even though homosexuals represent only 2% of the population they perpetrate more than one third of all child molestation” (a ridiculous statement based on several serious errors of thinking about sexual orientation).
One opponent submitted testimony comparing vaginal and rectal intercourse against nine factors. There were charts. Several pages of charts.
There was testimony simply imploring the Committee, who by this time they assumed (correctly) had heard it all (see above), not to allow this abomination to come into the beautiful state of Hawai’i.
Genora Dancel and Ninia Baehr, one of the plaintiff couples in the 1993 court case, testified, separately, at the Oahu hearing. Dancel is a conservative Catholic of Filipino origin, rooted in and committed to family. Baehr is a freer spirit, who wanted the legal and social protections that marriage would afford them. It was hard to see how so much hatred could be maintained in the wake of their quiet, unglamorous commitment to each other. Yet, somehow, it was.
In the end, what opponents of same-sex marriage wanted was for “the people to decide,” either directly, through a referendum or constitutional amendment, or indirectly, via their elected representatives, who could pass legislation outlawing same-sex marriage. Opponents knew the majority of “the people” were not in favor of same-sex marriage.
Or perhaps more to the point, of homosexuality itself. The Christian Coalition bluntly stated in its testimony that “[t]he majority of Hawai’i residents, along with most Americans, oppose homosexuality.”
I find this a particularly insidious argument. You can’t put basic civil rights up to a vote. And the Supreme Court had affirmed marriage as a basic civil right in Loving v. Virginia. A hostile majority does not get to deny an unpopular minority their basic civil rights, just because it can (see James Madison in Federalist #10).
Supporters, of course, wanted the legislature to stay out of it, and let Baehr v. Lewin proceed through the courts. What they knew was that without legislative interference, there could be no compelling state interest under the Hawai’i constitution to deny same-sex couples the right to marry. Given their instruction from the Supreme Court, the lower courts would almost certainly rule in favor of the plaintiffs.
In the immediate aftermath of the 1993 hearings, Representative Tom decided that a constitutional amendment to ban same-sex marriage would not be on the agenda. Sitting through five hearings of bilious vitriol from one side, and heartfelt personal stories from the other had moved the previously neutral Chair toward the side of marriage equality.
There was — briefly! — a serious discussion of legislation to that effect. I remember a meeting with the State Attorney’s office where Chairman Tom wanted to know what would happen if the legislature introduced a marriage equality bill. The State Attorney experienced a brief moment of respiratory failure.
Speaker Souki, however, would not expose the House to a vote on a bill promoting marriage equality. Rich Dvonch also steered Chairman Tom away from a marriage equality bill. Rich wanted to keep his boss in office, and knew it would be political suicide in the Chair’s home district. Better to have him around to fight another day.
The bill the Legislature passed that session amended HRS § 572-1, the Hawai’i marriage statute, to explicitly state that marriage is between a man and a woman. It also created a Commission on Sexual Orientation and the Law to study discrimination against same-sex couples in Hawai’i and make recommendations to the legislature on what actions, if any, they should take to eliminate it.
After the law passed, the courts postponed hearing Baehr v. Lewin so the Commission could assemble and begin its work. The case was postponed again when the composition of the Commission was challenged, and the legislature had to start over. Finally, the court had enough stalling and ruled in December 1996 that Hawai’i had not shown a compelling state interest that would override the presumption of unconstitutionality in the 1993 Supreme Court ruling. The court ordered the state to grant marriage licenses to same-sex couples. The state appealed back to the Supreme Court.
Before the case was heard in the Supreme Court, however, a constitutional amendment was put on the ballot in Hawai’i, in 1998. The amendment did not prohibit same-sex marriage outright, but gave the Legislature the right to define marriage (which it had already done, in the 1994 bill, but without constitutional authority).
This distinction may seem minor, but it isn’t. What the Legislature has done, it can undo, whereas it requires another constitutional amendment to undo a constitutional amendment.
The citizens of Hawai’i passed the constitutional amendment. By that time, alarmed citizens in other states had passed constitutional amendments with outright bans on same-sex marriage. And, of course, at the federal level, in 1996, our national legislators passed DOMA, which was signed into law by President Bill Clinton.
But now DOMA is history. And twenty years after the issue first blasted onto the scene in the Aloha state, the Governor is calling a special session to give same-sex couples the right to marry (the regular session doesn’t start until January 2014).
Many of the same opponents will be there, making many of the same arguments. Interestingly, they are playing the victim – the quiet majority cowed in the face of a vocal, “rabid” minority. But that is not true. I remember. I was there. Quiet and restrained the opponents were not.
You don’t have to take my word for it, however. All testimony from those hearings is preserved in the Hawai’i Legislative Archives, where interested citizens are welcome to read it.
In 1993 and beyond, a hostile, homophobic majority prevented a small minority of their fellow citizens from exercising one of their basic civil rights.
Not this time, I think. It’s twenty years on. Hawai’i is ready.
*Special thanks to my former HMSO colleague, Mary James, who went to the archives to review the testimony and photograph it for me. There were a few things I’d forgotten. Deliberately, I suspect.