Justice Levinson reflects on why marriage matters 20 years after historic HI ruling
April 24, 2013
Twenty years ago, Steven Levinson and the Hawaii Supreme Court made history.
In May of 1993, Levinson authored the Hawaii Supreme Court opinion in Baehr v. Lewin (later, it became Baehr v. Miike), which became the the first appellate court decision in global history to find that a state constitution presumptively prohibited the exclusion of same-sex couples from access to marriage. In his opinion, Levinson declared that denying marriage to same-sex couples violates the equal protection clause of the Hawaii Constitution, and that if the state could not show sufficient justification for its denial of the freedom to marry, the ban on same-sex couples marrying would be overturned.
"This was a first," Levinson said, looking back on the historic ruling. "When I first became aware of the appeal, just a couple of days before hearing the oral argument, it was obvious to me that this was the Big One. Cases like this don't come down the pike very often; you rarely see these kinds of cases that are potentially such game-changers."
When Levinson began his tenure as an associate justice on the HI Supreme Court in 1992, he had very little exposure to gay and lesbian people - and he had no idea he'd have the opportunity to make such an impact on the lives of gay and lesbian people by hearing a "game-changer" like Baehr. But even from his first day as a justice, he had been upfront about his views on gay and lesbian Americans. In 1992, shortly after he was nominated to the Supreme Court by the governor of Hawaii, he was asked in his confirmation hearing, "What is your opinion of the equal protection of the laws for gay and lesbian people?" His response was simple: "I believe in the equal protection of the laws for everyone, including gay and lesbian people."
Kickstarting a Movement
It would be an understatement to simply say that the Baehr case generated a lot of interest; in many ways, it ignited the movement to win marriage nationwide for same-sex couples.
In addition to kickstarting the movement, however, the decision prompted serious attempts at backlash - both in Hawaii and at the federal level. After Levinson and the Supreme Court ruled in favor of the plaintiffs and argued that the state needed to show justification for its exclusion of same-sex couples from marriage, it passed the case back down to the circuit court for trial. The case went to trial in 1996, and the plaintiffs won handily, building on the Supreme Court's previous ruling. The state of Hawaii appealed to the Supreme Court again.
But before the circuit court even heard the case, the United States Congress - aware that the Baehr lawsuit had the potential to pave the way for the freedom to marry nationwide - passed the so-called Defense of Marriage Act, which federally restricts marriage to different-sex couples, denying legally married same-sex couples over 1,100 protections and responsibilities of marriage; and declaring that no state would be required to recognize lawful marriages between same-sex couples.
As the Baehr case awaited its appeal in the Hawaii Supreme Court, the Hawaii legislature began considering a constitutional amendment to provide that only the legislature should have the power to decide who is permitted to marry in the state of Hawaii. The proposed amendment went to the ballot in 1998, and it passed. "That was beyond disappointing," Levinson said about the 1998 anti-marriage amendment. "But there it was. And so, when we heard the appeal we reversed the trial court ruling based on the constitutional amendment of 1998. The HI marriage laws denying same-sex couples the freedom to marry were unconstitutional before the amendment, but they weren't unconstitutional now, because the legislature had the monopoly over the decision of who could marry."
In the years that followed, anti-marriage forces pushed through more anti-gay constitutional amendments, and many states adopted statutes prohibiting same-sex couples from marrying. But in 2004, just over 10 years after the historic initial ruling by the Hawaii Supreme Court, the Massachusetts Supreme Judicial Court ended the exclusion of same-sex couples from marriage, reigniting the momentum for marriage nationwide.
The national climate regarding the freedom to marry in the early 1990s, Levinson remembers, stood in stark contrast with the climate today, when 58% of the U.S. population supports the freedom to marry and 10 U.S. jurisdictions - with several more on the horizon - passing marriage laws. "For the past five years, the snowball has been rolling down the hill at a very rapid rate," Levinson said. He reflected on the Hawaii Supreme Court's role in the snowball, saying, "I think Baehr v. Lewin 20 years ago was the game-starter. I think that but for our decision in 1993, it would have been a much slower process."
A Deep Respect for Marriage
Levinson said he's recognized the importance of marriage for 60 years - beginning in 1953. At the age of 7, he said he became innately aware of why marriage matters. "I became obsessed with the idea of being married," he said - "not obsessed with being married someday, but rather being married right now." He laughed, adding, "Obviously, a 7-year-old's handle on what marriage meant was a little rudimentary, but I believe I got the idea as to what it meant symbolically: Two people 'owning' one another's souls. The ultimate intimacy."
In 1968, two weeks after graduating from college, Levinson married his high school sweet heart, Lynn. "Getting married was a very high priority for me - and when I did get married, I felt like I had really arrived."
As someone who had long had a deep respect for marriage, Levinson said when he saw the Baehr case, he couldn't understand why any loving, committed couple should be excluded from the institution. Although he didn't know too much about gay and lesbian people, he knew that committed couples should be able to join together in marriage, regardless of who they love.
"When I saw Baehr, I had been a judge for three and a half years," he explained. "A judge's job is to apply facts to the law and rule on the basis of the laws. I think I would have ruled the same way in any event, but I was very excited about the case because of the potential that it had to change the way that business got done - not just in Hawaii, but in other places, too."
A year and a half after filing his opinions in Baehr, Levinson's daughter Jen "came out" to her father. Jen, a college student home for winter break, asked her dad one night if she could accompany him on a drive.
"She had been making small talk, and at the end of our drive, I turned to her and said, 'So, what do you want to talk about?,' Levinson said. "She asked me a one-sentence question that took her two minutes to deliver. She said: 'How would you feel if I were to tell you that I was more attracted to women than men?' And when that question mark got put on the end of that sentence, I said to her, 'See - that wasn't so hard, was it?'"
Ever since that conversation, Levinson has dreamt of officiating her wedding to a woman. He wanted to serve as the officiant for the first-ever wedding between an American same-sex couple, and he wanted to do so in Hawaii for his daughter nearly two decades ago, before Hawaii's anti-marriage amendment passed in 1998. "It would have been pretty neat to perform the first same-sex marriage in America," he said.
Fulfilling Two Dreams?
This year, the retired justice has been watching closely and contributing heartily to the movement he, in part, kickstarted 20 years ago by authoring the Baehr decision.
In the next year, advocates in Hawaii will continue to work on passing a marriage bill through the state legislature; earlier this year, Levinson was just one of the marriage advocates in Hawaii who invested energy in Hawaii United for Marriage, the coalition to pass a marriage bill in the state.
More pressingly, Levinson has his eye on the Supreme Court of the United States, which heard oral arguments last month in a legal challenge to California's Proposition 8, which stripped same-sex couples of the freedom to marry in 2008, and the so-called Defense of Marriage Act, the federal law pushed through the U.S. Congress in 1996.
When the Supreme Court announces its decisions in the two marriage cases in June 2013, Levinson stands to see two of his dreams come true.
First, he could witness the end of DOMA, the law that functioned as a direct response to the potential reality of same-sex couples having the freedom to marry in Hawaii.
But more personally, he could finally be able to make good on his dream of officiating his daughter Jen's wedding. She and her partner of over 5 years, Patty, have decided to host a commitment ceremony on July 20 in San Francisco, CA, where they've made their lives together. The women are registered as domestic partners, but they want to officially celebrate their love and commitment in front of their friends and family.
By July, Proposition 8, which prohibits marriages between same-sex couples in California, could be struck down. Jen and Patty's commitment ceremony could be a wedding, one where the couple is granted all of the protections and responsibilities of marriage.
"I'll be officiating their ceremony," Levinson said. "And it's a fulfillment of a dream for me that I've had for a long time."
Levinson lives in Manoa Valley in Honolulu with his wife, Cathy, who he married after mourning the death of his first wife Lynn. There, he serves as a member of the board of directors of the ACLU of Hawaii, as well as Equality Hawaii, the state's largest LGBT advocacy organization.
Levinson is excited to see how far the marriage movement has come in the past 20 years. He is excited to see the country's sudden shift on respecting the love and commitment of same-sex couples across the country. And he is excited to help his daughter celebrate her love for her partner.
Perhaps more than anything, Levinson is excited to be retired, able to reflect on his decades-long career as a judge and keep tabs on how his rulings have left their mark on the world. "It's gratifying in my retirement to have my first amendment rights fully restored," he said. "When you're a judge, you can't be partisan," he explained. "Now that I'm retired, I can be! I can speak out. I can advocate."