HAWAIIAN COURTSHIP

By JAMES KUNEN

Six years ago next week, three couples, all longtime residents of Hawaii, decided to challenge that state's proscription of same-sex marriage by applying for marriage licenses in Honolulu. It was not a decision they entered into lightly. Joe Melillo and Patrick Lagon had been a couple for 13 years; Antoinette Pregil and Tammy Rodrigues--who raised Antoinette's daughter together--for nine; and Ninia Baehr and Genora Dancel for 18 months. The health department refused to issue the licenses on the ground that only a man can marry a woman, and only a woman can marry a man.

The couples went to court, claiming sex discrimination. In 1993 the Hawaii Supreme Court ruled that prohibiting one individual from marrying another on account of his or her gender would violate the Hawaii state constitution's guarantee of equal protection under the laws, unless the government could prove that the state had some compelling, legitimate reason to ban same-sex marriage.

The case was sent back to Hawaii's First Circuit Court, and last week, after extensive testimony from psychologists and sociologists, Judge Kevin S.C. Chang found the state had failed to prove that same-sex marriages would harm children or anybody else. The state immediately appealed the ruling back to the Hawaii Supreme Court. But given its earlier reasoning, that panel is likely to uphold Judge Chang--and there is no further appeal, because the decision is based on the state constitution. By 1998 gay couples may be free to marry in Hawaii.

But what does last week's ruling mean for the other states? Conservatives fear that it will usher in an era of "moral anarchy," in the words of Robert Knight, director of cultural studies for the Family Research Council in Washington. "It will lead to calls for other relationships to be recognized, because if feelings are the key to recognizing a marriage, there's no logical reason why three or four people who say 'We sincerely love each other' should be denied this status," he explains. Gay-rights groups also expect wide repercussions, though of a very different kind. "This decision was an extraordinary turning point," declares Evan Wolfson, an attorney at the Lambda Legal Defense and Education Fund who served as co-counsel for the three couples, "because we now have in the cool, clear light of a courtroom a judge saying that there is no reason for government discrimination in marriage."

According to legal experts, however, the right of gay couples to marry in Hawaii won't have a broad impact on the mainland for some time to come. The state supreme court's decision has no binding effect as a precedent in other states, though gays elsewhere could invoke the persuasiveness of its reasoning. Other states remain free to set gender-based restrictions on marriage because the U.S. Supreme Court has never decided whether the Federal Constitution bans such restrictions. (The high courts of several states have ruled that it does not.)

The closer questions arise when Hawaiian gay couples move out of state or when individuals who live in other states marry in Hawaii and return home. If they try to sign up for family health-insurance coverage, seek pension benefits or claim to inherit in the absence of a will--to cite a few of hundreds of spousal benefits and obligations--in 16 states they will run up against laws explicitly prohibiting the recognition of same-sex marriages. And the recently passed Defense of Marriage Act forbids the U.S. government to recognize same-sex unions--ruling out joint federal-tax returns.

The Defense of Marriage Act also, somewhat superfluously, provides that no state need recognize a same-sex marriage from another state. The activists who pressed the Hawaii case argue that the Federal Constitution's Full Faith and Credit clause ought to compel such recognition, but the clause has never been held to require one state to honor a marriage from another. States must respect the judgments of one another's courts--that's why a valid Nevada divorce is good anywhere--but states have not been required to apply one another's laws. A pair of love-struck kids too young to wed in New Jersey can go get hitched in Indiana, but New Jersey can uncouple them the moment they return home.

"A state doesn't have to apply someone else's law when it has a justification for applying its own," says Linda Silberman, a professor of family law and conflict of laws at the New York University School of Law. When state laws conflict, the court asks which of the states has a greater interest in the matter, and generally that is "the state where the parties were living before and after the marriage." And if, for example, a New York court found the Hawaiian marriage of a couple of New Yorkers to be void, it would probably be void in Hawaii as well, because Hawaii must extend full faith and credit to the judgment of a New York court.

Eventually, the U.S. Supreme Court may have to resolve these questions of federalism and equal protection. But that day probably won't come for at least two years. Meanwhile, conservative groups may move to amend state constitutions to prohibit same-sex unions--and even introduce a federal constitutional amendment. Conceivably, some travelers may have to reset their marital status like their watches.

"Most people would agree that this is one country, and you should not have to get a marriage visa every time you cross a state border," says Wolfson. Perhaps. But Americans of all sexual and political orientations can count on one thing: the legal status of same-sex marriage will keep a lot of lawyers busy, till death do us part.