statement asking that they be dismissed since "they failed
to state a
claim upon relief can be granted" (id.). Siting the following reasons:
"(1) the states marriage laws 'contemplate marriage as a union
between a man and a woman'. (2) because the only legally recognized
right to marry 'is the right to enter a heterosexual marriage, [the]
plaintiffs do not have a cognizable right, fundamental or otherwise,
to enter into state-licensed marriages'...(5) the state's marriage laws
'protect and foster and may help to perpetuate the basic family unit,
regarded as vital to society..."(Baher v. Lewin, 1993).
The circuit court heard the motion on September
3, 1991 and
handed down its decision in favor of Mr. Lewin's motion for dismal
on October 1, 1991. The case was appealed to the state appellate
court where the court held that "although same-sex couples do not
have a fundamental privacy right to marry...the Hawaii marriage law
is presumably unconstitutional because it creates a sex based
classification" (Homer, 1994, p. 507). The case was remanded to the
Hawaii State Supreme Court where a ruling is expected sometime in
the the summer of 1996 OutNOW!).
The outcome of this case is eagerly awaited
by Queer America
since the constitutions Full Faith and Credit Clause, requiring other
states to recognize the judicial opinions of other states, would mean
that homosexual marriages might become legal in all 50 states
allowing same-sex couples the access to those "social, political,
and
economic rights which they otherwise would be entitled to" (Kozuma,
1994, p. 891-892). Among these rights are: pension benefits, tax
preferences, health insurance, and estates (Findlin, 1995, p. 89).
Giving Queer America the right to marry empowers it to live and be
a vital part of American society. As Mr. Liebman puts it, "It is the
beginning of our acceptance as full and equal citizens of the United
States" (Liebman, 1995).
In preparation for Baehr v. Lewin decisions,
several states have
sought to enact legislation which would forbid homosexual unions.
In Utah, state governor Mike Leavitt signed a bill that bans any
marriage that "does not meet Utah standards, and singles out
same-sex marriages" (OutNOW!, 1995). Since the constitution
states in amendment 10 that "powers not delegated to the United
States by the constitution, nor prohibited by it to the States, are
reserved to the States respectively", states such as Utah, Colorado,
South Dakota, and Hawaii have full legal right to enact laws which
would effectively stifle any grounds made by the decision of
Baehr v. Lewin.
Though this is the case, it may be possible
for Queer America to
garner this right by implementation of the fourteenth amendment
which requires that no state shall "deprive any person of life, liberty,
or property, without due process of the law; nor deny any person
within its jurisdiction equal protection of the law." Further support
could be sought through amendment number thirteen for, although
not physical slavery, denying same-sex couples the right to marry
effectively enslaves them socially by denying acceptance of their
difference, economically by denying the benefits of marriage, and
politically by creating a second class citizenship that is as unfair to
gays and lesbians as segregation was to African-Americans and
unequal as not allowing women the right to vote. Around this nation
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