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Hawaii’s About-Face On Gay Marriage

Much of the media coverage concerning Hawaii’s legalization of same-sex marriage observes that the issue has come full circle. Hawaii was the first state to even consider extending marriage rights to same-sex couples, a discussion it began back in 1990.

While the “full circle” imagery is not inappropriate, it isn’t the most interesting part of this story. What intrigues me most about Hawaii is how the first state whose voters rejected gay marriage has now joined a growing list of those that permit it.

Hawaii became the 15th state to legalize same-sex marriage when Gov. Neil Abercrombie signed the legislation yesterday. Abercrombie had called the state’s legislature back into a special session specifically to pass the measure, which will allow couples to secure marriage licenses as soon as Dec. 2.

Twenty-three years ago, three same-sex couples applied for marriage licenses in Honolulu. When the state rejected their applications, they sued. Three years later, the Hawaii Supreme Court dared to think the then-unthinkable when it ruled in Baehr v. Lewin that denying the couples’ marriage license applications was a presumed violation of their rights. Though that decision did not lead to same-sex marriage in Hawaii at the time (because the state’s voters changed their Constitution to permit the Legislature to ban gay marriage), it got the ball rolling for the changes that have since taken place nationwide.

The cultural climate 20 years ago was radically different than it is today. At the time, civil unions had only just started to appear internationally and did not yet exist in any U.S. state. (Vermont would become the first to offer such unions in 2000.) The same year that the Hawaiian Supreme Court decided Baehr v. Lewin, the country adopted the compromise “Don’t Ask, Don’t Tell” policy to address the role of gay and bisexual servicemen and women in the armed forces. “Don’t Ask, Don’t Tell” would not be repealed until 2010. Just three years later, we hear nary a peep about gays in the military.

Courts in Hawaii, and other states, were accused of overstepping their bounds by recognizing that same-sex couples have a right to get married. But the courts, as has often been the case in matters of civil liberties, simply pointed out where existing statutes failed to live up to not only our country’s stated ideals, but to our basic law - specifically, the constitutional provision that everyone is entitled to equal treatment. Our society has an admirable talent for reconsidering long-held assumptions and beliefs when the courts are right. Change sometimes comes remarkably fast once the process gets started.

In 1994, I wrote a book entitled “Financial Self-Defense for Unmarried Couples.” In an overview of the legal landscape at the time, I asked, “Should our government, founded on respect for pluralism, proscribe certain partners as ‘inappropriate’ for the minority who would choose them, merely because that choice would offend the moral or religious sensibilities of others?” The answer that I felt was obvious then has become more widely accepted now, as legislatures catch up to the courts in affirming equal treatment for same-sex couples in state after state.

For those who wonder what this process may look like going forward, I suggest looking north to Canada, which has had nationwide same-sex marriage since 2005. Opinion polls since the change in the law have suggested that legalizing same-sex marriage helped further legitimize it on a cultural level there. And there, as here, court cases paved the way for legislation; a 2003 case ruled that excluding same-sex couples from marriage violated the Canadian Charter of Rights and Freedoms, which is analogous to the American Bill of Rights. Judicial decisions came first; legislative action followed.

After United States v. Windsor partially struck down the Defense of Marriage Act earlier this year, it seems likely that we will see more legislative change of our own. Since June, some New Mexico counties and the state of New Jersey began issuing marriage licenses amid ongoing legal battles (since resolved in favor of gay marriage in New Jersey), and Illinois lawmakers passed a bill legalizing same-sex marriage that Gov. Pat Quinn is expected to sign next week.

The greater significance of what has happened in Hawaii is that the state has joined a growing list of those that first barred gay marriage and later reversed course. Washington state forbade same-sex marriage through its 1998 Defense of Marriage Act, but a bill allowing the practice passed by referendum in 2012. Minnesota, which specifically amended state law to require mixed-gender marriage back in 1977 and, for good measure, passed its own Defense of Marriage Act in 1997, reversed course and authorized gay marriage earlier this year.

Gay rights advocates in Oregon are seeking to get a measure on the ballot for 2014, The Washington Post reported. If the measure succeeds, Oregon will be the first state to repeal a constitutional amendment barring same-sex couples from marrying.

With nearly a third of U.S. states permitting same-sex marriage, the trend is accelerating toward national recognition. We are fast approaching consensus on the idea that, in the eyes of the law, everyone has a right to share their life with the person of their choosing, no matter that person’s gender.

Larry M. Elkin is the founder and president of Palisades Hudson, and is based out of Palisades Hudson’s Fort Lauderdale, Florida headquarters. He wrote several of the chapters in the firm’s most recent book, The High Achiever’s Guide To Wealth. His contributions include Chapter 1, “Anyone Can Achieve Wealth,” and Chapter 19, “Assisting Aging Parents.” Larry was also among the authors of the firm’s previous book, Looking Ahead: Life, Family, Wealth and Business After 55.

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