Ex-judge proud of stance on gays


POSTED: Monday, February 16, 2009

Seventeen years ago, Steven Levinson was asked during his Senate hearing on his appointment to the Hawaii Supreme Court what he thought about the equal protection of the laws for gays and lesbians.

Levinson paused. “;I believe in the equal protection of the laws for everybody, including gay and lesbian people,”; he told the committee.

The exchange would be the former associate justice's first brush with a topic that would lead to his 1993 pioneering and signature opinion paving the way for Hawaii to be the first state to legalize same-sex marriages for gays and lesbians.

His decision would later be negated by a 1998 constitutional amendment approved by voters, but it is still viewed as a key “;defining moment”; in the civil rights movement for gays and lesbians.

Jennifer Pizer, senior counsel for Lambda Legal Defense, the country's oldest and largest civil rights organization for gays and lesbians, said that in 1993 most people could not accept the notion of same-sex marriage.

“;The historical significance of Judge Levinson's opinion is that it took this claim for basic equality and dignity seriously and prompted the rest of the country to have a serious conversation about the subject,”; she said.

In Hawaii the state Legislature is considering adopting civil unions for gays and lesbians, a move that opponents say is tantamount to marriage. Connecticut and Massachusetts permit gay marriages, and three other states recognize civil unions.

But it was Levinson's 50-page opinion that cracked the legal barrier as well as social attitudes against gay marriages.

Speaking in his first interview since leaving the Hawaii Supreme Court on Dec. 31, Levinson talked to the Star-Bulletin at his Manoa home about the opinion—his proudest achievement during his nearly 18-year tenure on the high court.

Levinson, 62, a Democrat who came of age during the civil rights movement in the 1960s, acknowledges that he never thought seriously about gay marriage until about five months into his term. He received his law clerk's memo in September 1992 prepping him for a case that was up for a hearing before the high court two days later.

The case was Baehr v. Lewin.

Three lesbian and gay couples were denied marriage applications because state law prohibited same-sex marriages. They sued, but a state judge threw out their lawsuit. The couples appealed.

Levinson recalled reading the memo at his second-floor chambers of the Supreme Court's Aliiolani Hale. The memo recommended that the lawsuit be reinstated.

“;I looked at that and felt, wasn't that interesting,”; he said. “;And the more I thought about it, the more of a no-brainer it became to me that what was going on here was sex discrimination, and I couldn't think of any compelling state interest that would justify depriving same-sex couples of the access to the status of marriage.”;

He said state lawmakers eliminated in the 1980s an archaic provision that disqualified marriage for couples who could not biologically have children. To Levinson it meant lawmakers had already decided marriage served “;all sorts of needs, in addition to procreation.”;

The attitudes toward gay marriage splintered the court.

Levinson's opinion was joined by current Chief Justice Ronald Moon. Substitute Associate Justice James Burns agreed the lawsuit should be reinstated, but for different reasons. Substitute Associate Justice Walter Heen dissented and said he would have upheld the dismissal of the lawsuit. Retired Associate Justice Yoshimi Hayashi, who heard the case, said he agreed with Heen.

But Levinson's plurality decision spoke for the court. He said his opinion went through various drafts as it was circulated among the justices.

Seven months later the decision was released.

“;I knew this was the big one,”; Levinson said.

He said that in their research, they could find only four published legal opinions on the issue, and all upheld same-sex marriage bans.

“;So I knew we were going to be the first and, to my knowledge, the first in the world ever in a published legal opinion form to take the position that it was presumptively unconstitutional to deprive same-sex couples of access to the status of marriage,”; he said.

It was heady times for the relatively new associate justice in his first year on the court and also the youngest of the justices in the case. His ruling was only the 14th in more than 220 published opinions he wrote for the court during his tenure.

“;I was excited because this was a first and it was coming from little Hawaii, though my mouth, as it were,”; he said. “;I was changing the history of the world.”;

His ruling sent the case back to trial to determine whether the state could come up with a reason to justify the marriage ban.

Kevin Chang, now a federal magistrate judge, was the circuit judge who presided over the nine-day nonjury trial in 1996. Chang was not convinced by the state's assertion that children are better off raised by opposite-sex parents. Gays and lesbians can be just as loving and fit parents, he said.

Chang's ruling meant Hawaii would be the first state to allow gays and lesbians to be married, but while the ruling was on appeal, the state Legislature placed on the 1998 ballot a constitutional amendment that leaves the marriage issue to the Legislature, which made clear it was to be only between a man and a woman. About 70 percent of the voters approved the amendment.

“;I felt despair and heartbreak,”; Levinson said.

“;I felt as if I'd been mugged,”; he added later.

“;We flatter ourselves that this is the land of aloha and that we treat people equally, and many of the very people who themselves or whose forebears were themselves the object of unforgivable discrimination were themselves attempting to hurt a class of people in a discriminatory way, gratuitously,”; he said.

“;I mean we weren't dealing in a zero-sum game as in their gain is my loss. It was a matter of you can't have it. I can have it but you can't, and generally in the name of God, which, by the way, was the justification of the old miscegenation laws.”;

Levinson's decision asserted that the ban on same-sex marriage was the same as the ban on mixed racial marriages, which was struck down by the U.S. Supreme Court in 1967.

To Levinson as well as many gay rights activists, bans against gay marriage are the “;last frontier”; of discrimination.

While he believes civil union legislation being debated among state lawmakers is overdue, Levinson said the legislation falls short. “;My guess is that the proponents of the civil unions bill see it as a sufficient step forward so that most of the constituency that is advocating same-sex marriage will be satisfied at least for now,”; he said.

But he said he suspects gay and lesbian supporters will not give up until they get full marriage rights.

Levinson might join their cause. He still plans to relax, but is considering volunteer work. He said he has had discussions about getting involved with the American Civil Liberties Union of Hawaii, and he is also interested in Lambda Legal Defense issues involving gays and lesbians.

“;I hope to spend a lot of enjoyable years taking advantage of my retirement, and I also don't expect people to have heard the last of me,”; he said. “;I want to be involved, and I want to be involved on my own terms so that if I want to take time off again, I can.”;