After explaining his plan, Woods led his six charges down Beretania Street to the health department. There were registered license agents scattered across Hawaii, including government officials and even employees of large resort hotels that catered to wedding parties, but Woods, with an eye towards dramatic confrontation, selected the most highly trafficked of the available locations.
A cluster of journalists awaited them beneath an oleander canopy that shaded the entryway. With Woods looking on, each of the three couples took an application and completed it. Two by two, they entered through a door marked MARRIAGE LICENSE, and were greeted by a woman at a desk to whom they presented their completed forms and $25 fee. The clerk calmly said that given the unprecedented nature of their request she could not summarily approve the applications the way she would if heterosexual couples had submitted them. She directed the six applicants and their chaperone towards the back of the office, to speak with her boss.
The seven visitors crowded into the small office belonging to Robert Worth, the state’s acting chief health status monitor, who despite his sympathy for the couples’ ambitions said he couldn’t act on them without further legal guidance. “We will hold your applications until such time as the attorney general gives us a ruling about these specific applications,” Worth said. Woods led everyone back to the Blaisdell Hotel to the ACLU’s office to complete the organization’s two-page “Application for Legal Assistance.”
No one knew what would happen next, and the group disbanded, unsure they would ever have reason to see each other again. Baehr and Dancel retreated to a TGI Friday’s where they had gone on their first date just six months before. The two ordered cheeseburgers and reflected on the dizzying sequence of events. “What was that?” Genora asked Ninia. “What did we just do?
What they had done was set in motion a chain of events that would send a novel legal question from the outskirts of the American imagination to the floor of Congress and the Oval Office in a little more than five years. Within a quarter-century, the U.S. Supreme Court would end the debate for good. Over many of the years in between, whether gays and lesbians should be permitted to marry was the most divisive social question in the country.
But in December 1990, same-sex marriage was in no meaningful way a political or legal issue. There was hardly a public figure in the country who had been forced to articulate an argument either for or against it. (To the extent that there were active disagreements about the topic, they were aired within gay and lesbian legal circles, where differences persisted on both the principle and strategy of pursuing marriage rights.) Not a single major gay-rights group formally embraced marriage rights for its core constituency until the Hawaii Supreme Court in May 1993 gave unexpected blessing to the cause, the unexpected outcome of the legal process that Bill Woods began that morning in Honolulu.
Since the Supreme Court’s landmark decision in Obergefell v. Hodges, which in 2015 made same-sex marriage the law of the land, there’s been a default impulse to assume that this breakthrough was the result of a deliberately plotted national strategy to deliver on a long-defined civil-rights objective. But the truth is messier. The defining social movement of the 21st century began as a public-relations stunt, hatched by a relentless and entrepreneurial local activist competing with rivals for control of a single event-planning committee.
***
The history of gay activism in Oahu, Hawaii’s most populous island, was largely the story of Bill Woods’ coming-out. He first saw Hawaii while accompanying a friend and her husband on vacation, and the next year transferred from his small Illinois Presbyterian college to the University of Hawaii, studying psychology as an undergraduate before seeking a master’s in public health. Island life offered a new start, and from the moment Woods touched down he decided, for the first time in his life, to be open about his sexuality.
Soon Woods’ public profile was inextricably linked with his status as a gay man. In 1972, he founded a gay social-service organization he called the Sexual Identity Center because he didn’t think the prominent, largely straight psychologists and lawyers whose involvement he sought would flock to serve on a board whose name bore an explicit reference to homosexuality. Woods used the position to place himself at the forefront of everything within Hawaii’s emergent gay community. In 1974, when Oahu held its first gay-pride parade, a curiosity to onlookers along a Waikiki sidewalk, Woods was there. Years later, he became the first openly gay person to testify before the Hawaii legislature, then the first to address a state Democratic party convention.
Woods joyfully took up arms in the culture wars. When conservative televangelist Jerry Falwell traveled to Hawaii in May 1981 to “save the 50th state” by opening a chapter of his Moral Majority, Inc.—anyone who stood in his way must be “a Nazi, a communist, or a homosexual,” he warned—Woods led a group that beat him to register the name with state authorities. Their “Moral Majority of Hawaii,” as newspaper ads announced, would defend “family planning, civil rights for all people, pro-choice in abortion, child care programs, freedom of speech and religion, and the separation of church and state.” When he held a rally outside the state capitol in Honolulu, Falwell was confronted by a sheriff presenting him with a summons: the Moral Majority of Hawaii was suing his Moral Majority, Inc. for using its name. Concerned they could get ensnared in the litigation, other venues which had agreed to host stops on Falwell’s Hawaii tour cancelled. Before retreating back to Virginia, a disconsolate Falwell gave a farewell speech that mentioned only two names: Jesus Christ and Bill Woods.
Woods’ marriage-license stunt grew out of a similar feud. In 1989, he began attending meetings of the Official Gay & Lesbian Pride Week Association of Oahu, to argue the festivities being planned for June 1990 should include a parade. The association’s co-treasurer, Cheryl Embry, was a familiar antagonist to Woods—her Island Lifestyle Magazine had begun publishing to compete with his more established Gay Community News—and she led her fellow board members in dismissing the proposed parade. Woods promptly formed his own non-profit corporation, the Pride Parade and Rally Council, and set to work staging a rival event. Woods requested an event permit for the day before the pride-week association’s scheduled rally, and schemed to design an event that would upstage it. Woods asked the governor to be his grand marshal, the Royal Hawaiian Band to perform and a caterer to design an International Cuisine Festival.
He also plotted a wedding ceremony for as many as two dozen same-sex couples. Woods wasn’t interested in getting married himself—“Bill wasn’t a great romantic,” says his friend Terry Gregson, “and not a big believer in monogamous relationships”—yet understood the iconic power of such a spectacle. He sought legal guidance from the ACLU, but its leadership in Hawaii was wary of being pulled into one of Woods’ schemes. Throughout the summer and fall of 1990, ACLU officials kept deflecting his request for help, apparently hoping that Woods would lose interest and move on to another project. When Woods did run out of patience, he decided to head to the health department with the first couples he could find—hoping that media coverage would force the ACLU into action.
***
Twelve days after the three couples applied for marriage licenses, Hawaii attorney general Warren Price advised the health department that it was right not to have issued them. Both he and health director John Lewin said that even as there was no room for the state to recognize same-sex marriages, they would work with legislators to provide other support to gays and lesbians. For Lewin, the issue prompted “a lot of soul searching,” as he put it, since “the trend among homosexuals is to form long-lasting relationships, which is better for themselves and society.” Nonetheless he appeared happy to have the matter removed from his domain. “It’s a legal issue, not a health issue,” Lewin told the media upon receiving Price’s opinion. “It’s out of the department’s hands and into the legislature.”
The couples, however, were intent on heading first to the courts. Without any immediate offers of help from the ACLU, Woods led the couples to seek out a lawyer of their own.
When Bill Woods arrived in Partington & Foley’s 24th-floor law suite looking for an ally ready to challenge Hawaii’s conception of marriage, he wasn’t so much delivering Dan Foley a case as much as six plaintiffs in search of one. At first glance, Foley’s office—its walls covered with pictures of his wife and two young children—may as well have been a shrine to the traditional nuclear family. “I had never thought of marriage as anything other than a man and a woman, just like everybody else,” he later said. “But I felt, well, being married, having children, having the rights and benefits of marriage, who am I to say no to them?”
Foley was already becoming known around Honolulu as a lawyer drawn to unpopular, even unimaginable, causes. His path to the law was itself untraditional. As a young University of San Francisco graduate with experience in anti-war activism and an interest in cultural anthropology, he had joined the Peace Corps and was assigned to serve as an agricultural-extension officer in Lesotho. Observing firsthand how a weak constitution hobbled the young country, Foley gained a new appreciation for the rule of law. He returned to the Bay Area for law school and, revering the Warren Court and its success using the constitution as a driver of social change, joined a Marin County firm that specialized in civil-rights work.
His sympathies often turned specifically west across the Pacific. He had first visited Hawaii as a teenager, when he came to visit an aunt who had moved to the islands after marrying a Hawaiian man. Foley was struck by how the indigenous population had found itself disempowered upon statehood, their language and culture relegated by an ascendant political class of relocated outsiders. When he learned of an opportunity to head to Micronesia just as the series of islands was securing their sovereignty from the United States, Foley quit his firm—“to help them avoid the Hawaiians’ fate,” as he later put it.
By the time Bill Woods walked into his office, Foley had moved into private practice, where the two men had found themselves allied on cases of interest to the islands’ gay community. In the most prominent, Foley successfully defended the Miss Gay Molokai Pageant after a local official, under pressure from religious conservatives, refused to grant a permit to the hula carnival and cited the potential spread of HIV to justify it.
Even as he made his living as a litigator, Foley maintained the affect of the cultural anthropologist. He wore a neatly cropped salt-and-pepper beard and round, thin-frame tortoise-shell glasses, and a high forehead that exposed thick lines when he concentrated. Like many Hawaii lawyers, he usually wore a suit and tie only when he had to appear in court; on days spent in his office, Foley was as likely to be found in an aloha shirt untucked over jeans. Yet for Foley, modesty and humility weren’t merely aesthetic preferences. Raised Catholic and educated by Jesuits, he converted to Buddhism upon marriage to a Japanese-Chinese-Hawaiian woman and he saw diversity as central to the island temperament. “There’s no dominant group, religion, race or culture,” Foley said of Hawaii. “It breeds tolerance. On the mainland, it’s clear who’s in control.”
Now it was Hawaii’s marriage code that presented Foley his most immediate obstacle. On April 12, 1991, each of the three couples received a formal notice that the health department would not recognize same-sex unions. The letter from state registrar Alvin T. Onaka cited chapter 572 of Hawaii Revised Statutes, the same part of the code whose ambiguity about questions of gender emboldened Woods in the first place. “Even if we did issue a marriage license to you, it would not be a valid marriage under Hawaiian law,” Onaka wrote them all in identical letters. The couples visited Foley and committed themselves to a long fight. “We’re not happy with the way the state is interpreting the law,” Joe Melillo said. “We want to do it legally—the right way.”
The social taboos that persisted around gay couples resembled the ones that had long justified anti-miscegenation laws, and those who had considered strategies to legalize same-sex marriages often found themselves drawn to the example of Loving v. Virginia. The unanimous U.S. Supreme Court decision in 1967 overturned state laws forbidding interracial marriages, on the grounds that such bans served no function other than racial discrimination. “Marriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival,” Chief Justice Earl Warren wrote in his opinion. “Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.”
Foley may have come of age revering Warren’s progressive jurisprudence, but he no longer counted the Supreme Court as a welcoming venue for civil-rights litigation. Indeed, after a decade’s worth of appointments by Republican presidents, the federal bench bore a newly conservative finish, and had proven itself particularly hostile to sexual minorities. Just five years earlier, in 1986, the Supreme Court upheld state laws criminalizing sodomy.
Just five years later, Foley reasoned, gay marriage would be an automatic loser if the matter found its way into federal courts. Instead, he schemed to develop a case that would rely solely on interpretation of state law. In that regard, Foley understood what a useful ally Hawaii’s constitution would prove to be: the state is one of only five in the country that explicitly defines a right to privacy. Looking to the language that the Warren Court used in its decisions on contraception and abortion rights, Hawaii’s 1978 Constitutional Convention pledged in its first article that “the right of the people to privacy is recognized and shall not be infringed without the showing of a compelling state interest.”
When Foley listed the six plaintiffs on the lawsuit he filed on the morning of May 1, he was pleased to see the alphabet placed Ninia Baehr’s name first. All the information he had about his clients’ backgrounds had come from small talk at their first meeting. But Foley knew instantly he wanted Baehr — an experienced activist who, unlike the others, was comfortable with both public speaking and fundraising—to be the face associated with a case that would become known as Baehr v. Lewin.
Foley’s five-page lawsuit demanded injunctive and declaratory relief so that his plaintiffs would receive the marriage licenses they had been denied. A state court could compel the health department to adjust its policy, Foley argued, on the basis that both the equal-protection and privacy guarantees in Hawaii’s constitution applied to the right of all couples to marry on equal terms.
In November 1991, Judge Robert Klein rejected Foley’s claim, justifying the existing opposite-sex marriage stature as “clearly a rational, legislative effort to advance the general welfare of the community.” Klein methodically itemized reasons that gays did not meet the qualifications for as a class worthy of constitutional equal protection: they were not a politically powerless minority, Hawaii’s “history of tolerance for all people and their cultures” ensured they were not victims of systematic discrimination, and their sexuality was not an “immutable characteristic,” like race or gender. “Citizens cannot expect government’s policies to support their lifestyle or personal choices,” Klein wrote.
Foley had one month to prepare his appeal, and he knew he was embarking on a case whose ramifications could be felt far beyond the islands. “Should we prevail on these issues before our State Supreme Court, there is no question our victory would be nationally recognized,” Foley wrote in a memo to Woods. “Needless to say, our case is more than a gay rights case. It is a human rights case.
***
On October 13, 1992, Dan Foley awoke at 4 a.m., and began the morning with a Buddhist chanting ritual. Afterwards Foley put on a white shirt, dark blue pinstriped suit and a burgundy Christian Dior tie. Around 5:30, after resetting the alarm for his wife, Foley left the house, carrying the suit jacket and a briefcase, and traversed the dark, quiet Pali Highway towards downtown.
When he had first marked the date for oral argument in his calendar, Foley had been anticipating an appearance before a very different Supreme Court of Hawaii. A freakish series of actuarial events that summer—mandatory retirements, promotions, a death and a recusal—had turned over a majority of the five seats, some more than once. Now only two normal sitting members remained, with a combined three years of high-court experience between them, and Foley decided to aim his argument at the justice he knew best. He had faced off with Steven Levinson years before in a trial over a controversial zoning issue at Sandy Beach, with Levinson representing the developer and Foley the aggrieved residents. When Foley’s co-counsel tweaked the opposing attorney with an abrasive style, Foley pulled Levinson aside and said, reassuringly, “Don’t talk to him, talk to me.”
Now they would meet again in another courtroom, as two bearded 46-year-old children of the 1960s, both proud card-carrying members of the ACLU. (Levinson discreetly kept his membership active even while on the bench, in violation of ethics guidelines.) When, in September, Foley began scribbling notes for an opening statement on a yellow legal pad, he had Levinson in mind as his audience. He knew that if he was unable to persuade Levinson, he would be unlikely to win over any other justice. If he could get Levinson, then it would become the justice’s job to bring over two of his colleagues to form a majority.
In a dark, empty 24th-floor office, Foley read the opening argument aloud, timing himself. After completing it twice, in each instance under 20 minutes, Foley sorted his papers in a stack, scooped up his prayer beads, and turned his chair so that it was facing a back wall in the direction of his Kailua home. He began another Buddhist chant, and for an hour and a half thought only of the opening argument, focusing his will on the goal of carrying himself well and communicating clearly to the justices. At 8:15 am, he opened the door and found his office had begun to rattle with life. Foley gathered his officemates and set off on the four-block walk to Aliiolani Hale, the 19th-century building that is home to the highest rungs of the Hawaiian judiciary.
A little before 8:45, Foley arrived at the courthouse’s wooden front door and climbed two sets of steps to the floor belonging to the supreme court. On his way inside, Foley navigated a cluster of media massed in the hallway outside the chambers, larger than any he had seen before. He assumed one of two seats at a table to the right of the podium facing the chief justice and set down the three briefs that had been filed in the case, his handwritten oral argument and a yellow legal pad to take notes. On the opposite table were two assistant attorneys-general, Judy So and Sonia Faust, familiar foils to Foley in other suits against the state.
As the appellant, it was Foley’s responsibility to go first. His first words at the podium were scripted to reorient the case to what Foley considered its natural scale. “This is not just a case about whether or not homosexual couples should be allowed to marry,” he began. “This is a case about homosexuals, and their rights to privacy, equal protection and due process under the Hawaii Constitution.” Foley told the justices they would not once hear him invoke rights guaranteed by the United States Constitution. “Appellants concede that in a federal court of law,” he went on, “they could not prevail.”
The implication was clear. This was a civil-rights case whose consequences for an aggrieved minority group went well beyond the clause in the Hawaii statute that identified the qualifications for marriage. Foley’s acknowledgment of weakness before federal courts was in fact its own solicitude to the vanities of the five men before him. No appeal of theirs could take Baehr v. Lewin into federal courts, and no judge would have to worry about the eventual indignity of seeing the Supreme Court reject his reasoning. Any three men on the bench were on the precipice of making law, of expanding rights for Hawaiians that could not be easily taken away. Foley was inviting his contemporaries on the bench to do something bold.
Foley had placed his handwritten script on the podium, but he had read through it aloud enough times that he was capable of delivering nearly all of it from memory. When justice Walter M. Heen assumed the role of Foley’s antagonist, challenging the lawyer about whether the lower court’s decision had truly encroached on any fundamental liberty—“the right to practice any sexual orientation”—Levinson politely interrupted and guided the conversation elsewhere. As Foley had hoped, Levinson seemed to be on his side, quietly ushering the lawyer onto a desired path with limited interference or delay. With Levinson’s help, Foley steered his answers to cover most of the points he had drafted for his statement. When he finally found a lull in the questioning, Foley stopped and asked to reserve the rest of his time for rebuttal, turning back towards his seat as Faust rose from hers and approached the podium.
She was barely a minute into her oral argument when the justice sitting to her far left spoke for the first time that day. “Put it another way,” James S. Burns said to her. “They want you not to discriminate against them.”
“Our position is that we are not discriminating against them,” she responded.
“Okay,” Burns followed up. “A male and a female walk in and they’re not married and they want a license; you give it to them. A male and a male walk in and want a license; you won’t give it to them. You are discriminating against them.”
“Our position,” said Faust, “is that that is permissible discrimination.”
Foley felt his skin shiver and harden as he experienced what Hawaiians refer to as a chickenskin moment. Foley had always assumed that the appeal would likely be decided on procedural grounds, without the Supreme Court ever having to contend with the question of whether gays and lesbians were being denied a fundamental right. But to Foley’s surprise Burns seemed to have accepted that constitutional premise right away, and forcefully so. “This was the first time since I filed the complaint,” the lawyer reflected later, “that I felt that my clients would be able to prevail on the merits.”
They did. Six months later, in May 1993, the Hawaii Supreme Court ruled for the plaintiffs, the first time that any court on earth had acknowledged that a fundamental right to marriage could extend to gay couples.
Levinson’s majority opinion relied on the reasoning Burns had made so accessible to even a lay listener, that the pivotal issue was discrimination on the basis of sex, rather than sexual orientation.
Although the Hawaii Supreme Court had ruled for the plaintiffs, it wasn’t the end of the process. The supreme court sent the matter back to a lower court, where Hawaii authorities would have to prove a “compelling state interest” behind the denial of marriage licenses to gays and lesbians. The burden had suddenly shifted: the state would have to come up with a reason why same-sex marriage shouldn’t exist.
It took a little time for those outside Hawaii to fully appreciate the momentousness of what had happened there. The Church of Jesus Christ of Latter-day Saints was the first major mainland institution to respond, and soon leaders and activists from other religious denominations followed.
Their warnings that the future of the American family in the United States lay in the hands of a single Hawaii trial-court judge eventually found an audience in Congress, where legislators set to work on a bill designed to ensure the 49 other states and the federal government could disregard same-sex marriages celebrated there.
On September 9, 1996, the trial in Baehr v. Miike—as it was renamed upon the appointment of a new state health director—began in Honolulu
That same day, the Senate passed the Defense of Marriage Act, which was about to put the issue on a president’s desk for the first time. The bill defined marriage under federal law as only between a man and a woman, ensuring that whatever happened in Hawaii’s courts would not force any other state’s government to recognize gay and lesbian couples married in Hawaii. The law would stand until 2013, when a challenge to its constitutionality put the matter of same-sex marriage before the U.S. Supreme Court.
From THE ENGAGEMENT: America’s Quarter-Century Struggle Over Same-Sex Marriage by Sasha Issenberg, to be published by Pantheon Books on June 1, 2021. Copyright © 2021 by Sasha Issenberg.
