New York University Public Law and Legal Theory Working Papers

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University of Hawaii Law Review, Vol. 33, 2011


In 1993, the Hawai‘i Supreme Court held in Baehr v. Lewin that excluding same-sex couples from marriage was presumptively invalid under the Hawai‘i Constitution because it discriminated on the basis of sex. Consequently, the exclusion could only be upheld if the State could demonstrate that it “furthers compelling state interests and is narrowly drawn to avoid unnecessary abridgments of constitutional rights.” This decision marked the first victory in the marriage equality movement in America.

Baehr and its progeny have generated an important debate in legal and social science literature about whether “early” civil rights victories are incremental steps forward or precipitate a damaging backlash. The paper argues that, on balance, Baehr was an important step forward for lesbian, gay, bisexual, and transgender (LGBT) rights and gender equality. By asking the State to explain why same-sex couples could not be married, the Hawai‘i Supreme Court opened a dialogue that continues to this day.

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