Preliminary Notes on the Hawaii Supreme Court's 12/9/99 Decision
On December 9, 1999, the Hawaii Supreme Court summarily held that Baehr v. Anderson, the landmark case of three lesbian and gay couples seeking state marriage licenses now is "moot" because of last year’s change in the state constitution. The Court held that the 1998 constitutional amendment "[took] the statute out of the ambit of the equal protection clause of the Hawai'i Constitution" at least as regards marriage licenses.
The Court did not overrule its 1993 decision that the denial of the freedom to marry is sex discrimination, although it did hold that the 1998 constitutional amendment removed access to marriage licenses from the reach of the state constitution's equal protection clause.
The Court did not disagree with Judge Kevin S.C. Chang who found after the 1996 trial that the state has no legitimate reason for excluding same-sex couples from civil marriage.
The Court did limit its ruling to access to marriage licenses, suggesting that the amendment might only exempt the issuance of marriage licenses from constitutional scrutiny, but that future claims for the protections, benefits, and responsibilities that come with civil marriage might be considered as a separate issue.
The Court states that Hawaii's constitution prohibits sexual orientation discrimination, and that both sex and sexual orientation discrimination warrant strict scrutiny by the Hawaii courts.