The First Major Same-Sex Marriage Case: Baehr v. Lewin (Miike)

In Baehr, the Hawaii Department of Health (DOH) denied the plaintiffs' respective marriage license applications. Honolulu attorney Dan Foley represented the couples.

Obergefell v. Hodges, a 2015 United States Supreme Court decision, was a watershed civil rights moment for same-sex couples in America. Though it established a fundamental right to marry for gay couples, it was not the first major same-sex marriage case. Though short-lived, that honor goes to Baehr v. Lewin (or Baehr v. Miike), the first significant victory for same-sex marriage.

Baehr was the first time a state court recognized the discrimination inherent in restricting marriage to opposite-sex couples.

This article explores Baehr's history and background.


The DOH relied on an opinion from Hawaii's then-Attorney General in denying the plaintiffs' applications. This opinion narrowly interpreted Hawaii's marriage statute. According to the then-Attorney General, the marriage statute only applied to opposite-sex couples.

The plaintiffs argued that this sex-based classification amounted to unlawful discrimination. The State believed that marriage's primary purpose was procreation, which excluded same-sex couples. The circuit court (trial court) dismissed the case.

The plaintiffs appealed this decision to the Hawaii Supreme Court. Organizations such as Lambda Legal filed supporting briefs.

Hawaii Supreme Court Decision

The Hawaii Supreme Court determined that denying marriage licenses on the basis of sex violated the equal protection clause of the Hawaiian Constitution. It found sex classifications banning same-sex marriage violated the Hawaiian Constitution. The Hawaiian Supreme Court relied on Loving v. Virginia in its analysis.

Loving v. Virginia

In 1967, Virginia and other states, such as Georgia and Delaware, banned interracial marriage. The Lovings married in the District of Columbia, but Virginia refused to recognize their marriage.

The Lovings challenged Virginia's law. The U.S. Supreme Court ruled that laws based on racial classifications were unconstitutional.

Hawaii Supreme Court Opinions

Chief Justice Moon and Justice Levinson joined the plurality opinion. The court found the DOH discriminated against the appellants based on sexual orientation. The court also found the marriage statute did not pass the strict scrutiny test. Judge James Burns of the Hawaii Court of Appeals filed a dissenting opinion.

Strict Scrutiny

Strict scrutiny is a legal standard applied whenever the government tries to limit a Constitutional right. Strict scrutiny was first articulated in U.S. Supreme Court decisions. It requires the government to narrowly tailor laws that limit a Constitutional right. These laws must meet a compelling state interest. First Amendment cases offer many examples of strict scrutiny.

Per the federal constitution, all Americans have a right to free speech. This includes the right to protest. The government can pass a law that limits the hours citizens may protest. The law must meet a compelling interest and be narrowly tailored. In this example, the compelling state interest is public safety. The law is narrowly tailored because it limits the time for a protest, not the protest itself.


The Hawaii Supreme Court then ordered a remand back to the trial court. In 1996, the trial court ruled against the DOH. It found that Hawaii had no compelling reason to discriminate against same-sex couples. It further found even if a compelling reason existed, the rule was not narrowly tailored.

This was the first time a state court ruled in favor of gay marriage. Although this was a victory for gay rights, it triggered a local and national backlash.

Full Faith And Credit Clause

The Full Faith and Credit Clause of the United States Constitution requires states to respect the laws of other states. The Full Faith and Credit Clause applies to "out-of-state laws, regulations, and judgments." This clause helped ensure jurisdictions nationwide recognized other state laws, regulations, and judgments.

Same-Sex Marriage

The clause requires states to grant full weight to out-of-state laws, including marriage law. Under the clause, all states must recognize same-sex marriages performed in Hawaii. The Hawaiian Legislature and Congress responded with legislation limiting marriage to opposite-sex couples.

Defense of Marriage Act

In 1996, Congress passed the Defense of Marriage Act (DOMA). DOMA had a dual-core purpose. First, DOMA had to "defend the institution of marriage." The second purpose was to "protect the right of the States to formulate their own public policy regarding the legal recognition of" same-sex marriage.

In 2023 the Respect for Marriage Act repealed the Defense of Marriage Act, ensuring equal rights for same-sex couples.

Hawaiian Constitutional Amendment

In 1998, Hawaiian voters approved a constitutional amendment to the Hawaii State Constitution. This amendment limited marriage to opposite-sex couples. This amendment gave the state legislature the power to ban same-sex marriage.

The Hawaii Supreme Court then reversed the trial court's decision and issued a court ruling in favor of the state.

Get Legal Help

Same-sex marriage is now legal in the United States. Despite this, some same-sex couples may face opposition when applying for a marriage license. Speak to an experienced family law attorney if you have any questions.

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