In a ruling issued late December 9, the Hawai'i Supreme Court upheld a ban on marriage licenses for same-gender couples, yet affirmed that the state constitution prohibits discrimination based on sexual orientation -- and may have left the door open for gay and lesbian couples to win every substantive benefit of marriage in the future. The long-awaited decision marks the last major chapter in the controversial long-running "Baehr" case, which transformed the public discourse on same-gender marriage from a joke to something two-thirds of U.S. citizens believe will someday become law. The only other state where a similar case has reached the level of the state supreme court is Vermont, where a decision is pending.

What the Hawai'i Supreme Court has finally unanimously determined is that the passage of the 1998 ballot initiative authorizing the legislature to amend the state constitution to restrict legal marriage to one man and one woman, has served to legitimate the state law to that effect passed in 1994, rendering moot the earlier judgments on marriage licenses for gay and lesbian couples. It has therefore reversed Hawai'i first District Court Judge Kevin Chang's 1996 ruling ordering the state Department of Health to award marriage licenses to the three plaintiff gay and lesbian couples, and the case is being sent back to Circuit Court to enter that reversal. Chang had also awarded the couples court costs from the state, and the high court has rejected that award as well.

But the Hawai'i Supreme Court did not reverse its own historic 1993 ruling that the state constitution protects the rights of same-gender couples, although one justice believed strongly that it should have, nor did it reverse Chang's finding that the state has failed to present a compelling state interest to deny those rights. The current decision is narrowly focused on marriage licenses, and denies them, but the 1993 ruling together with Chang's finding could potentially allow gay and lesbian couples to sue successfully for each benefit of marriage. Lambda Legal Defense and Education Fund said in a statement that, "The justices also reaffirmed the state constitution's protections against discrimination on the basis of sex and sexual orientation, and indicated that the 'Baehr' precedent could be relied upon in future litigation challenging the denial of individual marriage benefits and protections denied to same-sex couples." The reaffirmation came in a footnote by four of the justices in response to the separate concurring opinion by Associate Justice Mario Ramil.

Dan Foley, counsel for the gay and lesbian couples throughout the long case at considerable personal cost, said in a statement, "The [state Supreme] Court held that its hands were tied with regard to marriage licenses but left intact its holding that denial of the protections that come with marriage violates the [Hawai'i] constitution. We now look to the legislature to end the Catch-22 that links protections to marriage and then tells same-sex couples they may not marry." Foley told the "Honolulu Star Bulletin" that, "The way I read the opinion is that same-sex couples now are entitled to all the rights and benefits of marriage, and if the Legislature doesn't extend it to them, the state will be litigating into the next millennium." He told the "Honolulu Advertiser" that, "Every time a same-sex couple is denied a right or benefit granted to a married couple, there will be a lawsuit." Foley indicated that he may ask the Hawai'i Supreme Court for some further clarification.

But Deputy Attorney General Dorothy Sellers told the "Star Bulletin" that, "It means the issue of same-sex marriage is over in Hawai'i."

KNHL-NBC reporter Linda Hosek seemed to agree with Foley, saying, "This ruling leaves the door open for any rights for same-sex couples. The justices let stand a significant part of their initial 1993 ruling, which was based on the equal protection clause of the state constitution. It means that the state can't discriminate against same-sex couples in any other area [than marriage licenses] without a compelling reason and that sets the stage for domestic partnerships."

The religious right Family Research Council's senior director of legal studies Jan LaRue said in a statement that, "Homosexual activists contended the state's support of traditional marriage amounted to gender discrimination. But the law applies equally to men and women as well as homosexuals and heterosexuals. Just as two heterosexual men cannot marry, so two homosexual men cannot marry."

LaRue's argument is rather different from that of Hawai'i Supreme Court Associate Justice Mario Ramil, who in his separate concurring opinion also took issue with the majority reading of heterosexual-only marriage as gender discrimination. In a footnote, he wrote, "In my view, the trait ... which ... distinguishes applicants for marriage is not gender, but rather sexual orientation. For example, if a male plaintiff in this case somehow changed his gender to become a woman, but remained homosexual (i.e., lesbian), she would still be disadvantaged by the prohibition on same-sex marriage inasmuch as she would not be permitted to marry another woman. However, if that same male plaintiff somehow changed his homosexual orientation, he would not be disadvantaged ... inasmuch as he would be able to marry a female. In short [the law] disadvantages homosexuals, whether male or female, on account of their desire to enter into a marriage relationship with a person of the same sex."