“Hawaii Comes Full Circle on Same-Sex Marriage,” Joanna L. Grossman is the Sidney and Walter Siben Distinguished Professor of Family Law at the Maurice A. Deane School of Law at Hofstra University. Her column is a featured commentary at Verdict.Justia.com.

She highlights the role of the Hawaii Supreme Court decision in the case of Baehr v. Lewin in triggering the backlash across the country, leading to state laws and constitutional bans on same-sex marriages, as well as the federal Defense of Marriage Act.

The animating force behind this first wave of federal and state anti-same-sex-marriage statutes was the belief that Hawaii was on the cusp of legalizing same-sex marriage—and, perhaps more importantly, the belief that this would mean same-sex marriage was effectively everywhere. Hawaii’s impact on both federal, and eventually state law, was exacerbated by the mistaken perception that recognition of Hawaii same-sex marriages by other states would be both compelled and automatic. Adding fuel to the fire was the fact that both opponents and proponents assumed this to be true. For proponents of same-sex marriage, the claim represented both wishful thinking and a component of their strategy to gain marriage rights nationwide. For opponents of same-sex marriage generally, this assertion galvanized forces, imposed time pressure on states to protect themselves from an exported marriage policy, and provided powerful rhetoric to motivate quick legislative reactions.

Within the specific context of DOMA, the assertion gave opponents the ability to argue for passage of the law on grounds of federalism—to stop Hawaii’s purported ability to export its national marriage policy to sister states over their ardent objections—rather than having to assume an express anti-gay-rights or even a pro-traditional-marriage platform. In the debate over DOMA, the full faith and credit claim provided the legal predicate necessary to justify Congressional intervention.

It’s a very good legal/political history. Highly recommended.