Sarah
D

Ninia
Baehr
and
Genora
Dancel
et
al.
v.
John
Lewin
Hawaii
Supreme
Court,
1993

Facts In
1991,
the
plaintiff
couples‐
Ninia
Baehr
and
Genora
Dancel;
Tammy

Rodriguez
and
Antoinette
Pregil;
Pat
Lagon
and
Joseph
Melilio‐
Kiled
a

lawsuit
for
declaratory
judgment
that
Hawaii’s
Marriage
Law

unconstitutionally
denied
same‐sex
couples
the
same
rights
to
marriage
as

different‐sex
couples.


Question(s) Does
Hawaii’s
Marriage
Law,
Hawaii
Revised
Statutes
572‐1,
violate
the

privacy
and
equal
protection
clauses
of
the
Hawaii
Constitution?

Answer(s) Presumed
unconstitutional‐
remanded
to
circuit
court

Reasons
 J.Levinson,
joined
by
C.J.
Moon

Precedent
&
Framer’s
Intent
Loving
v.
Virginia
“‘The
freedom
to
marry
has
long
been
recognized
as
one
of
the
vital

personal
rights
essential
to
the
orderly
pursuit
of
happiness
by
free

[people.]’
So
‘fundamental’
does
the
United
States
Supreme
Court
consider

the
institution
of
marriage
that
it
has
deemed
marriage
to
be
‘one
of
the

‘basic
civil
rights
of
[men
and
women].’’”
(305)

Textual,
Strict
Scrutiny,
State’s
Interest
Equal
Protection
Clause
(of
the
state)

The
Hawaii
Marriage
Law,
and
Lewin
acting
accordingly,
discrimated

against
the
plaintiff
couples
because
of
their
“‘sex,’
one
of
the

classiKications
in
the
state
equal
protection
clause
that
triggers
‘strict’
or

(at
the
very
least)
‘intermediate’
scrutiny.”
The
Hawaii
Marriage
Law
is,

thus,
presumed
unconstitutional
unless
Lewin
can
show
that
(a)
the
sex‐
based
classiKication
of
the
statute
is
justiKied
by
“compelling
state

interests”
and
(b)
the
statute
is
“narrowly
drawn
to
avoid
unnecessary

abridgements
of
the
applicant
couples’
constitutional
rights.”
(306)

Textual
Equal
Protection
Clause
“On
its
face
and
as
applied,
[the
Law]
denies
same‐sex
couples
access
to

the
marital
status
and
its
concomitant
rights
and
beneKits.”
(306)

Question
of
Fact
Hormonal
and
genetic
basis
for
homosexual
orientation
“If
heterosexuality,
homosexuality,
bisexuality,
and
asexuality
are

‘biologically
fated’
then
the
word
‘sex’
also
includes
these
differences.”

 Sarah
D

These
are
“relevant
questions
of
fact
which
must
be
determined
before
the

issue
presented
in
this
case
can
be
answered.”
(307)

Dissenting
 J.
Heen
Opinion(s)
Textual
Hawaii
Marriage
Law
“[The
Law]
treats
everyone
alike
and
applied
equally
to
both
sexes...
and

does
not
effect
an
invidious
discrimination.”
(307)
“All
males
and
females
are
treated
alike...
Neither
sex
is
being
granted
a

right
or
beneKit
the
other
does
not
have,
and
neither
sex
is
being
denied
a

right
or
beneKit
the
other
has.”
(307)

State’s
Interest
&
Natural
Law
“The
statute’s
classiKication
is
clearly
designed
to
promote
the
legislative

purpose
of
fostering
and
protecting
the
propagation
of
the
human
race

through
heterosexual
marriage
and
bears
a
reasonable
relationship
to
that

purpose.”
(307)