IIV susan murray n December 9, the Hawaii osupreme Court dismissed Hawaii's same-sex mar- riage case, Baehr v. Anderson, concluding that a constitution- al amendment ratified by Hawaii's voters in November, 1998, made Hawaii's ban on same-sex marriage constitu- tional. In a short written order, the Hawaii Supreme Court reaffirmed that Hawaii's refusal to allow same-sex cou- ples to marry ran afoul of the equal protection principles in the Hawaii constitution, but concluded that the constitu- tional amendment removed Hawaii's discrimination from the protection of Hawaii's equal protection clause. A Brief Review The Hawaii high court's» decision marks the last chapter in a nearly decade-long saga. In the early 1990s, three same-sex couples sued Hawaii seeking the legal status, protections, supports and obligations of civil marriage. Although the trial court dismissed their case, in 1993 the Hawaii Supreme Court ruled in the case of Baehr v. Lewin that Hawaii's refusal to allow the couples to marry con- stituted sex discrimination. (The only reason Ninia Baehr was not allowed to marry Genora Dancel is because Ninia Baehr was a woman, not a man). The Hawaii constitu- tion only allows the state to dis- criminate on the basis of sex if its discrimination is "narrowly tailored" to serve a "compelling state interest." Accordingly, the Hawaii Supreme Court sent the case back to the trial court for a trial to determine whether Hawaii had a good enough rea- son to discriminate against the plaintiffs by denying them mar- riage licenses. After a several-week trial, with a great deal of expert evi- dence, the trial court concluded in December, 1996, that the state had failed to demonstrate a compelling state interest to justify its discrimination. Although the state had argued that the marriage laws were designed to protect children, the court found that the state had failed to show that its dis- crimination served that interest. lE(illl BRIEFS & hell: I-ullinsnn The Hawaii Effect The state and the trial court's decision was put on hold until the state's highest court could review the decision. tional amendment, the Hawaii Supreme Court has concluded that its hands are tied in terms of protecting gay and lesbian January 2000 | Out in the Mountains [11 in the face of Vermont's long- standing commitment to free- dom, tolerance and equality. What Vermont does have, like Hawaii, is a constitutional provision designed to protect citizens from discrimination on the basis of sex. Significantly, the Hawaii Supreme Court reafflrmed that, in the absence of the recent constitutional amendment, Hawaii's refusal to allow same-sex couples to marry would violate the Hawaii Constitution's prohibition of state discrimination on the basis of sex. If the Hawaii court's deci- sion had had any influence at all on the Vermont Supreme Significantly,'the Hawaii Supreme Court reaffirmed that, in the absence of the recent constitutional amendment, Hawaii's refusal to allow same-sex couples to marry would violate the Hawaii Constitution's prohibition of state discrimination on the basis of sex. While the case was on appeal, -the legislature and vot- ers of Hawaii took the highly unusual step of amending the Hawaii Constitution to limit the ‘ ‘marriage rightsof a portion of the Hawaii population — name- ly, same-sex couples. In partic- ular, the constitutional amend- ment stated, "The legislature shall have the power to reserve marriage to opposite-sex cou- ples." The amendment vote, in November, 1998, followed months of intense campaigning by both sides (and all-out fear- mongering by those opposed to equal rights and protections for the families formed by same- sex couples). As a result of the constitu- Hawaiians from the discrimina- tory marriage laws. What does it mean for Vermont? The first question most Vermonters are asking is, "What does this mean for us?" The short answer: absolutely nothing. Comparing the Hawaii case and the Vermont case is like comparing apples and oranges, because Hawaii has a specific constitutional provi- sion essentially authorizing the legislature to discriminate against an unpopular minority in this case. Vermont has no such provision, and any attempt to amend Vermont's constitu- tion in the same way would fly Court's thinking, then, it would have been to support the plain- tiffs' position in the Vermont. case. What does it mean nafionafly? No one court decision and no one vote in any state is going to determine the fate of marriage and family rights for same-sex couples. The Hawaii case opened a whole new chapter in our movement for equality and inclusion, and launched an important social and political conversation about gay and les- bian people and our families. To a degree many of us could not have imagined a decade ago, the broader public has had 18 South Main'Street' P.O. Box 1455 Rutland, VT 05701 e-mail: Sabu234@AOL.com Laurie S. Rosenzweig Attorney at Law 802-786-2251 Residential Real Estate, Wills & Trusts, General Practice of Law 9.0‘ e°“ \’\°\°SL <50 blackwdlaw@aol.com +Q;\$ M e0 ,. *° @ to BLACKWO OD “’°;>_ ‘Z’ ASSQCIATES, PC attorn :31: Employment and Special Education Law, Civil Rights Law, Wills and Mediation, LGBTAdoptians and Domestic Issues, - Personal Injury Law and other litigation fax: 802-863-0262 more opportunities to see the love and commitment that characterizes many of our fam- ilies, and to consider the patent unfairness of denying us rights that most Americans take for granted. According to an NBC News/Wall Street Journal poll reported on September 16, two- thirds of Americans now believe that gay and lesbian people will win the freedom to marry. Meanwhile, the political center has shifted toward recognition of our need for and entitlement to broader protec- tions and supports for our fam- ilies. Throughout the nation, pro- ponents of equal civil rights for gay and lesbian people and their families will continue to carry the torch lit by our brave and committed brothers and sisters in Hawaii. Susan Murray and Beth Robinson are attorneys at Langrock Sperry & Wool in Middlebury, Vermont, whose practices include employment issues, family matters, estate planning, personal injury and worker's compensation cases, and general commercial and - civil litigation. This column features timely information about legal issues of interest to our community. We hope to provide information about important laws and court cases that may aflect our rights, as well as practical nuts and bolts advice for protecting ourselves and our families. If you'd like to see us cover a particular topic, please feel free to write OITM or call us at 388-6356. V Good legal advice can make all the difference. V Langrock Sperry & Wool offers the services of 22 lawyers with over 300 years combined experience in all areas of the law —— including two lesbian attorneys I‘ with special expertise serving the legal needs of the g/l/b/t/q community. ll SUSAN MURRAY & BETH ROBINSON With offices in Middlebury and Burlington Middlebury (802) 388-6356 'BurIington (802) 864-0217 ll smurray@langrock.com brobinson@langrock.com Langrock Sperry & Wool, LLP ATTORNEYS AT LAW