 Good afternoon. Welcome back to another special edition of Out and About. Today is October 19, 2020. We are in five months here in Hawaii. Even though we are in a special lockdown case, we have an extra special guest coming back who has been pivotal in the expansion of rights for LGBTQ people both in Hawaii, the nation and the world. We're delighted to have Justice Steve and Levinson back with us. As you may have caught our show two weeks ago, and if you haven't, go back on the think tech profile. Justice Levinson and I were discussing the case bear versus Lewin, the first marriage equality case. It was the first appellate court decision in American history that granted that a state's marriage laws were presumptively unconstitutional for discriminatorily prohibiting same sex couples from marrying. At the time same sex marriage was legally recognized nowhere in the world, this marriage decision catalyzed the push for marriage equality in the US and beyond. And as you know today in most of Western Europe, South Africa, Australia, New Zealand, Taiwan, almost all of Latin America, it is the law of the land. Justice Levinson has authored many opinions. He has a very storied history as a jurist and we are happy to welcome him back today. So thank you so much for being with us. Well, it's great fun and a pleasure to be back. Thanks so much Winston. Well, we were we left off a couple last time and there's just so much to unpack here and especially because this is not a, this is not a done deal. We're seeing right now people are very interested in who's getting appointed to the Supreme Court and what does that mean for a lot of different laws in our land and well the entire process is I suppose a bit troubling but it's just it is what it is. So as we look in terms of where we left off with this marriage equality case and I thought it was very interesting that Judge Amy there did not would not comment on Obergefell and other very important issues and probably wise not to say anything about anything but something seem what she could have opined on but given the state of things I understand what you did. Where we left off last time. We've gone through what Bear versus Lou and had come down to and we were just getting to the back glass so run us through the what happens with with the ruling and then where does it go from there in Domas and the change to the state constitution here in Hawaii. We last time. We talked about the tizzy that the the bear be luan. lawsuit. The state legislature into the state legislature is the immediate impact of bear be luan was on the state of Hawaii in terms of what the Hawaii state constitution had to say about whether marriage was needed to be or must or was required to be opened up to same sex couples. The the bear be luan decision by the wise cream court held that as you said withholding access of the legal status status of marriage in the state of Hawaii. The same sex couples presumptively violated Hawaii's equal protection clause which prohibited invidious discrimination on the basis of sex. The court remanded the matter sent the matter back to the trial court because there had been no trial yet and the court had come up because the circuit court had essentially thrown the the case out very early on. And so we have no the the plaintiffs the bear plaintiffs the three couples had alleged facts or constitutional relief that the state's equal protection clause prohibiting invidious sex discrimination presumed that marriage should be available to same sex couples unless the state could demonstrate a compelling interest in its sex discrimination and withholding the act the legal status of marriage from same sex couples. So the matter went to trial finally in 1996 about three years after the decision came down the trial court Kevin Chang wrote his decision at the end of 1996 and no surprise he found in favor of the three same sex couples and against the state or the director of health. The compelling interest that the state claimed that it had in limiting marriage to opposite sex couples was that children are ideally raised child rearing ideally takes place in an environment where there is a nuclear family consisting of a mom a dad and the kids the at trial the plaintiffs had two expert witnesses the only witnesses at the trial were expert witnesses because everybody agreed to the essential facts which were that in late 1990 the plaintiffs the three couples had asked for marriage license applications they had been refused on the basis that they were same sex couples and therefore not eligible for marriage therefore it was pointless to give them marriage license applications and that that was it so at trial as the party stipulated to those facts agreed that those things happen and so the state which had the initial burden of demonstrating a compelling state interest in that sex discrimination had two expert witnesses and their job was to prove that child rearing takes place best with a mom and a dad the three couples also had two expert witnesses and their expert witnesses testified that of all the research that had been done up to that date on the subject of child rearing and the most beneficial form of the family in which the children are being raised did not prove that children are raised any better by a mom and a dad than they are by two same sex people by a grandmother by a mom only by a dad only and on cross examination the state's witnesses essentially crumbled and conceded yes that's true there is no research supporting our opinion that a mom and a dad and the kids are the ideal environment for child rearing and based on that judge Chang ruled in favor of the three same sex couples was that and was and was that the state's only real argument was that this was just a better situation for kids yes okay because they had to come up with a compelling interest in a withholding marriage from same sex couples and they certainly couldn't advance homophobia as that compelling state interest and in fact they didn't they weren't they weren't relying on homophobia as the reason for withholding marriage from same sex couples and they lost now at that point Congress fearing this result that the plaintiffs would win and that same sex marriage would be recognized in Hawaii and that therefore married things couples same sex couples married in Hawaii would come to the mainland and hold themselves out and as married and pollute the mainland with their tainted marriages Congress enacted the defense of marriage as a direct response to what was happening in Hawaii in Bear v. Lewin and my God what will happen if married people of the same sex come to the mainland from Hawaii and was that was that was that was the defense of marriage act that was passed that was the defense of marriage act which said two things it said marriage that doesn't require state B to recognize those people as married if they come to state B and it also said and not only that the federal government does not recognize same sex marriage and so you may say you're married but we say for purposes of getting the benefit of federal law you aren't married and I was I misspoke the last time we were together we were talking about the rights and benefits that flow from marriage that Dan Foley had recited in his briefing to the Hawaii Supreme Court came from state law alone didn't even get to the matter of the rights and benefits duties and obligations as well of marriage under federal law and so the defense of marriage act became law in 1996 when the negotiation was taking place in the Hawaii legislature what are we going to do about this case in which the Hawaii courts have held that the Hawaii Constitution requires that access to be met to marriage be extended to same sex couples and the first thought that came to opponents was let's amend the Constitution to do away with what the Hawaii Supreme Court and then the circuit court at trial have created and so the legislature proposed an amendment to the state constitution directly addressing the matter of same sex marriage ironically this new provision will be placed in the bill of rights of the Hawaii Constitution and it ultimately was in November 1998 I mistakenly said 96 two weeks ago but on November 1998 ballot the good people of the land of aloha overwhelmingly by roughly a 70 to 30% margin ratified the proposed constitutional amendment that reserved to the legislature the sole power to restrict marriage to opposite sex couples or to open marriage up to same sex couples sometime in the future and most people in Hawaii found that that was the end of it that the Hawaii legislature would never recognize same sex marriage but things change and as many of us remember states began to recognize same sex civil union as a kind of second class form of marriage giving same sex marriage same sex couples access to all of the bennies and also all of the duties of marriage but calling the relationship something else calling it civil union but it was definitely second class and also restricted just to a state and didn't I mean it was we have the reciprocal beneficiaries law which is different still I think you can name your sibling or your parent and not one can't you almost nobody took advantage of that so it's really not even worth talking about we could get into those weeds in the negotiation one of the possibilities urged by opponents of same sex marriage and that's what we do in the second class status called reciprocal beneficiaries in which brothers and sisters could be reciprocal beneficiaries parents and children could be reciprocal beneficiaries in other words making it very very different from marriage and also limiting the rights and benefits that would flow from that pension or rights to the hospital idea but it was obvious to everyone proponents and opponents would be satisfied with a reciprocal beneficiary status and so what was ultimately negotiated was the amendment that was put out for ratification by the electorate on the November ballot and that was overwhelmingly approved by the Hawaii electorate which showed that the level of opposition to same sex marriage in Hawaii was virtually the same it was identical to the level of opposition to same sex marriage in the rest of the country in the rest of the United States and at that time was there was some attempt made to make civil unions or did that come down the road much later in Hawaii? In the meantime other states were getting on the bandwagon I think Vermont may have been the first judicially to recognize civil union for same sex couples that afforded all of the rights and benefits under state law to partners to a civil union as partners to a marriage received under state law in Vermont other states followed suit and then in the early 2000s Massachusetts became the first state judicially to decree under its state constitution that it was unlawful, unconstitutional to deny same sex couples who were otherwise eligible to be married but for their gender access to the legal status of same sex marriage and after Massachusetts opened the door other states began jumping on the bandwagon too in the meantime back in Hawaii proponents were taking first things first and were lobbying the Hawaii state legislature for a bill that would recognize same sex civil union or same sex couples but it was strictly speaking civil union could be available to opposite sex couples also wasn't marriage but it would afford all of the rights and benefits of marriage to partners to a civil union and it one could argue was marriage in everything but not called marriage made it unacceptable to a lot of proponents because of the implications of having to create a new animal a new status that same sex couples could have access to but still barring them from access to marriage so the idea from the very beginning was to try to get civil union first and then go for full marriage equality and so marriage equality I mean equality Hawaii that I sat on the board of for a number of years which was the then largest single union of all GVTQ advocacy group in Hawaii began lobbying hard for same sex marriage glad lobbying hard for civil union glad did and other local organizations did and so the American Civil Liberties Union of Hawaii began to become part of that mix in a big way some outside big guns like Evan Wolfson who I think everybody knows of became part of the effort as well in which Linda Lingle was the governor of the state of Hawaii and for those who may not know what years are you talking about he was the governor beginning in 2002 and ending in 2010 so in 2009 the advocacy group succeeded in persuading the legislature to get behind civil union and pass it into law and the House of Representatives passed it it crossed it went over to the Senate and at the very last minute as a result of some parliamentary maneuvering engaged in by the president of the Senate who at the time was Colleen Hanabusa and the Senate majority leader who I believe at the time was Sean Tsutsui the bill was deferred was recommitted was sent back to committee and effectively killed for that legislative session that upset a lot of people we got some assurances from the leadership and the legislature that we should not worry because next year they would actually do it in 2010 the Hawaii legislature passed a civil union bill which then went to the governor for signature and the governor had 30 days from the day that she received the civil union bill to sign it allow it to go into law and on the very last day she announced a press conference invited people who had been active in support of civil union and in opposition to the press conference which took place in the anti-room of the governor's offices on the fourth floor of the Capitol with that audience present and the matter being filmed by the media and recorded by the media the governor announced her veto of the civil union bill people were pretty upset by that who had supported civil union and felt that they had been stabbed in the back but the governor lingels term was about up and lo and behold the next year Neil Abercrombie became the governor of Hawaii and he announced publicly and made it very clear that he would be happy to sign a civil union bill and in fact if that were the first bill to reach his desk he would not be able to go into law and so the legislature repass the civil union bill and governor Abercrombie immediately signed it and so and by that time it was 2011 and so in very early 2012 civil union became legal and available so that's status I civil unioned a lot of couples including interestingly enough one opposite sex couple who I asked why do you want civil union if you can have marriage and they didn't have a very clear answer to that but they wanted civil union so that was fine they were eligible but for about two years lots and lots of same sex couples took advantage of the newly created status of civil union in Hawaii in the meantime proponents of marriage equality were following through on their game plan and I was part of that and that was once civil union was in the bag go for full on marriage equality and that's interesting because Massachusetts in 2004 when they legalized marriage here we're still in the land of aloha eight years later when we're just getting civil unions passed where when did it first come up in 91 or something like that the lawsuit was filed in 91 and the supreme court decision was filed in 93 and the trial ended with the trial judges judgment in favor of the same sex couples at the end of 1996 yes and so the shot that we fired went all around the world but in the meantime the ripples hadn't come back to Hawaii and it's unbelievable because we've just gotten up to this point now in history and we are just on about 30 minutes which is incredible because there's so much more to unpack here so that's 20 years time frame we're talking about there we've been talking for 30 minutes again we haven't gotten to to a Windsor to Obergefell to what's coming down the pike here a lot of different questions about like Kim Davis haven't even gotten the marriage equality we haven't got the marriage equality which I will say for the record before you have to sign off went into effect on December 2, 2013 in Hawaii making Hawaii I think the 15th state in the United States to recognize marriage equality the federal government not yet having done it which we are going to have to get to in our next installment because there's a lot of history here but it's also a lot of jurisprudence that you will be able to help us with explain there and we did have a question from a viewer who asked us there's cases where people refuse to sell houses to LGBTQ people how much further do you think to get LGBTQ people to the same rights so I think that is a great question and maybe one we can leave until the next time because let's just say we're not there yet and we still got a lot of work to do but what you've done what you contributed to the shot around the world that's reverberating came back to Hawaii we've gotten up to a certain point now here in Hawaii so if you will be so kind as to continue this discussion in a couple of weeks it would be my honor and privilege to have you back happy to do it okay because it's a lot to unpack here and then there's other questions I just want to ask like what keeps you up at night right now and you know those sorts of things that are beyond the scope of this right here but for right now we have to unfortunately wrap it up but this is our Pride Month so this is our little contribution to you know a fuller, freer, expanded America, Hawaii and we thank you for your part and I thank you for taking part in this today helping us to understand the background of this and that this is not ancient history this is very recent and relevant and important and still kind of ongoing well it's been a pleasure thanks Winspen I look forward to continuing it in two weeks thank you Justice and for all you watching catch our first installment from a couple weeks ago and then look forward to us being back here in a couple weeks Aloha everyone