Hawaii Homosexual "Marriage" Case Rated Worst in History of American Law

[Traditional marriage supporters are still awaiting the final decision from the Hawai’i Supreme Court on Baehr vs Anderson (formerly Lewin and Miike. Name change due to resignations of DOH directors. Bruce Anderson is presently the new director of Health in Hawaii). Interesting that Bernard Schwartz, the Chapman Distinguished Professor of Law at the University of Tulsa has written A Book of Legal Lists: The Best and Worst in American Law, Oxford University Press,1997. Chapter 9 is called the “Ten Worst Non-Supreme Court Decisions” (pp. 182-184) and guess what No.8 is? That’s right, Baehr v. Lewin. Following is what Mr. Scwartz has to say about the notorious case:]

Baehr v. Lewin

The great judges and great decisions have adapted the law to the needs of their day. This has enabled the traditional legal technique to serve the welfare of the constantly changing society. The masters of the judicial craft have made the emerging law appear the logical product of established doctrines; in their hands, the changing common law was made a blend of both continuity and creativeness.

Judicial creativeness should, however, go only so far. For the judge to make quantum leaps is to risk a transforming role more appropriate to the legislator. Justice Frankfurter once wrote, in a letter to Justice Black, “the problem is not whether the judges make the law, but when and how and how much. Holmes put it in his highbrow way, that ‘they can do so only interstitially; they are confined from molar to molecular motions.’ I used to say to my students that legislatures make law wholesale, judges retail.”

In Baehr v. Lewin (1993), the Hawaii Supreme Court made law wholesale. The case involved men whose applications for marriage licenses were denied solely because they were of the same sex. They sued, claiming that the denials violated their right to equal protection. The Hawaii court stated that the statute providing for marriage between husband and wife established a sex-based classification. To determine the validity of such a classification under the equal protection clause, the court ruled, the strict-scrutiny standard of review must be applied. This meant that the classification may be upheld only if it is supported by a compelling state interest and is narrowly drawn to avoid unnecessary abridgment of the applicant couples’ constitutional rights.

All this may sound like only technical legal jargon. But it is of crucial importance. The review standard used by the court in a given case determines whether a statute violates equal protection. Most statutes meet the usual standard of being supported by a “rational basis” or even what is called the intermediate standard of support by a significant state interest. On the other hand, as the Supreme Court put it in 1995, “strict scrutiny is ‘strict in theory but fatal in fact.’” Justice Thurgood Marshall explained the difference in result in a 1976 opinion: “If a statute is subject to strict scrutiny, the statue [sic] always, or nearly always,…is struck down.” A less strict review standard, “too…leaves little doubt about the outcome; the challenged legislation is always upheld.”

Technically, all the Baehr court did was to remand to the lower court to determine whether, “in accordance with the strict-scrutiny standard, the state could meet the burden of overcoming the presumption that [the statute] is unconstitutional by demonstrating that it furthers compelling state interests and is narrowly drawn.” But the Baehr decision plainly indicated the decision that would have to be made on remand. In effect, then, Baehr held that the same-sex marriage requirement, to quote a dissent, “unconstitutionally discriminates against Appellants who seek a license to enter into a same-sex marriage.”

The Baehr decision is so contrary to both established law and common sense that one is almost speechless before this patent reductio ad absurdum of equal-protection jurisprudence. In the first place, there is the universal meaning of “marriage”—for example, the Oxford English Dictionary definition: “an act, of marrying, the ceremony or procedure by which two persons are made husband and wife.” If the state is to follow the method of Humpty Dumpty in Through the Looking-Glass—“When I use a word … , it means just what I choose it to mean”—it is surely for the legislature, not the courts, to redefine “marriage.” The legislature has, however, continued to use the term in its universally accepted sense.

Aside from Baehr, stated a Federal court of appeals in 1995, “unanimously American courts have held that same-sex couples are not constitutionally entitled to attain the legal and civil status of marriage.” The Baehr holding that such legislative use of the word is presumptively unconstitutional is contrary to that of every other court which has considered the matter. The legislative confirmation of the accepted definition of marriage as limited to a union between husband and wife does not discriminate on the basis of gender; it is based on the nature of marriage itself. In the words of the Washington court, in reaching the opposite result from Baehr, “appellants are not being denied entry into the marriage relationship because of the recognized definition of that relationship as one which may be entered into only by two persons who are members of the opposite sex.” The Baehr decision the other way is an affront to both law and language that well deserves its place on the list of worst decisions.

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