 Good afternoon. Today is October 5th, 2020. How can it be October already? It's crazy this year is just flying by the year of COVID. We are so delighted and honored to have a very special guest on our show about and about today. A title of our show is Bear vs. Lewin, Marriage Equality Case, and our tagline is LGBTQ rights, pre and post Bear vs. Lewin. We are honored to have Justice Stephen Levinson, who's retired from the Supreme Court of Hawaii, who wrote the opinion of the court there, and I would just like to read a little bit about that so our viewers have an idea of what's going on there. In 1991, a lawsuit Bear vs. Lewin in the Hawaii Supreme Court held the denying access to marriage to same-sex couples amounted to sex discrimination under the Hawaii Constitution Equal Protection Clause. At that trial, the Director of Health would have the burden of demonstrating that the state had a compelling interest in the otherwise prohibited sex discrimination clause. This ruling created an enormous shift in the cultural landscape, setting off a series of events that culminated in the US Supreme Court's 2012 Windsor and 2015 Obergefell decisions, recognizing marriage equality nationwide, and it's had impacts worldwide in the LGBTQ rights movement. Today, we're going to discuss some of the background of the case, the rulings involved, the backlash, and the progress we find ourselves today. If time will look at some current climate forefront challenges to equality on the edge here for LGBTQ folks and elsewhere, we are not going to have time to do that because there's so much to unpack here, but Justice Levinson is a graduate of Stanford and then University of Michigan Law School, where he received his JD in 1971 and came to Hawaii shortly after that, worked in a couple of private firms and then served on the Hawaii Supreme Court from April of 92 until retirement at the end of December 2008. Justice Levinson authored 271 published opinions of which 231 were published opinions of the court, and he did write the lead decision in Bear versus Lewin, which was the first appellate court decision in American history to hold that a state's marriage laws were presumptively unconstitutional or discriminatorily prohibiting same-sex couples from marrying. At the time, let's remember, this is not that long ago, same-sex marriage was legally recognized nowhere in the world, the bear decision catalyzed the push for marriage equality in the US beyond, and it is now the law of the land of the US, virtually the entire Western hemisphere, most of Western Europe, South Africa, Iceland, New Zealand, Taiwan. Justice Levinson has authored numerous opinions addressing the application of statutory constriction, lawful limits of government intrusion and private affairs of individuals, legitimacy of police interrogation, searches, seizures, and other matters, and he has very storied record and serving on many different law-related and non-related entities, and most recently the Honolulu Police Commission. And so thank you so much for joining us today. I'm sorry for that long introduction, but it's a pleasure and honor to have you here, Justice Levinson. Well, it's a pleasure and honor to be here and to have been asked, and I'm really looking forward to this discussion. Well, you know, it's here today that we're, it's 2020, so when was, tell us about the, what's the background of the case of Bear versus Lewin? What was the situation that led to that case going to the Supreme Court? Okay, so this is the Bear story. Toward the end of 1990, three couples, two of them, woman, woman, one man, man, appeared at the Department of Health on Punchbowl Street and asked for marriage license applications. The clerk of the, of the, at the Department of Health was flustered. That had never happened before. So the three couples were told to come back later, and they came back later. They were handed letters that had been signed by the director of the Department of Health, Jack Lewin, a very fine guy, but probably written by the then attorney general for Hawaii, Warren Price, also a very fine guy, telling them that they couldn't have marriage license applications because they were ineligible to marry being same sex couples, and therefore there wasn't any point in giving them applications. They looked around for a lawyer, had some difficulty, lamb to legal, turned them down, didn't think they could win. The American Civil Liberties Union of Hawaii turned them down, didn't think they could win, but they found Dan Foley, who had been previously the legal director of the ACLU of Hawaii, and he agreed to take their case. So they filed a lawsuit in early 1991 in the state circuit court, the trial court, and they claimed on two grounds, one under the state's equal protection clause and two under the state's due process clause, that denying them access to the legal status of marriage was unconstitutional. And therefore they were entitled to receive marriage license applications. They were otherwise eligible to marry, but for the fact of their genders, and therefore they asked for judgment in their favor and against the state. The Department of the Attorney General representing Jack Lewin, the director of health, rather filed an answer to the complaint denying any obligation to give the three couples marriage license applications. But then immediately after that filed what's called a motion for judgment on the pleadings in the circuit court. And what the motion basically said was that assuming that every factual claim that the plaintiffs lay out in their complaint is true, even then they can't win under any legal theory, and therefore judge you should enter judgment in favor of the director of health and against the plaintiffs. The circuit court judge happened to be Bob Klein, a very old friend of mine who came up to the Supreme Court with me from the circuit court, and he was persuaded by the state's argument. And therefore he entered judgment in favor of the state and against the three couples. The three couples then filed an application for a writ of certiorari in the Hawaii Supreme Court. And that's the way normally in the course of a regular lawsuit, the losing party at the circuit court level seeks further review either in the intermediate court of appeals or in the Hawaii Supreme Court. Our court granted the application for further review. And that's basically when I came on to the court. I had been on the court for about four months when a staff attorney circulated the calendar for the next week or the next months oral arguments. 15 different cases. And either number seven or number eight on that list was Bear V. Lewin. I had never heard of it. I didn't know what the issues were. I two days before the oral argument was scheduled, I got the file out, I read it, thought the issue was exotic. It had never, the matter of same sex marriage or the idea of it was something that had never occurred to me. So I hadn't thought about it one way or another. My law clerk or one of my two law clerks submitted a memorandum working the case up for me analyzing it and making a recommendation. And based on her memo and my reading of the record, I was persuaded that denying these couples marriage license applications probably violated the state's equal protection clause by way of sex discrimination. Because if John and Jill apply for a marriage license application and are otherwise eligible, they get one. If Jill and Jill apply, they don't. If John and Bob apply, they don't. Why? Not for any reason having to do with their sexual orientation, but purely because they are not a potential groom or a potential husband and a potential wife. Dan Foley was sophisticated enough in the complaint that the three couples filed in the circuit court not even to allege his client's sexual orientation. So nowhere in the record that came up to us on appeal from Bob Kline's order denying or granting the motion for judgment on the pleading was there any claim of the sexual orientation of any of the six plaintiffs. But the fact that they were three same sex couples was claimed. And that then made it easy to decide the case based on sex discrimination under the state's constitution. Fortunately, the only issues that were involved in this matter were state law questions, not federal questions. And so there was really nothing that the United States Supreme Court could do about our opinion. So that's how it came up and that's how it was decided. The court was very, very divided on the question. Initially, I wrote the lead opinion, but it was joined in by only one other justice. Initially, Associate Justice Ron Moon, by the time that the package of opinions was filed, Chief Justice Ron Moon, for reasons of his own, the Chief Judge of the Intermediate Court of Appeals, James Burns, who was assigned to the appeal by reason of vacancy, concurred in the result of our decision, but for different reasons. Intermediate Court of Appeals Judge Walter Heane, who was assigned temporarily to sit for oral argument on the case, dissented, disagreed with our opinion, agreed with the decision of the circuit court below, and retired Justice Yoshimi Hayashi, who had been assigned to sit as a substitute judge, had turned 70 years old by the time the decisions were filed and therefore was prohibited by law from signing any opinion, but he insisted on a Roger Maras sort of asterisk appearing on the caption of the opinion after his name, which said at the bottom of the page that if he had been allowed to decide the case, he would have joined in Judge Heane's dissent. So it was basically a 2-1-2 decision, which became a 3-2 decision shortly after that, when the state filed a motion for reconsideration of our decision, or in the alternative for clarification of what was supposed to happen next, and by that time Justice Paula Nakayama had joined the court. And so CJ Moon replaced Judge Heane with Justice Nakayama, Justice Hayashi was out of the picture by then, and on reconsideration we clarified that we meant what we said, but that what had to happen next was that when the matter went to trial in the state trial or circuit court, the burden would be on the state to demonstrate a compelling interest in the sex discrimination that would justify what would otherwise be unconstitutional, a very, very, very difficult burden to meet. Did that mean it wasn't a suspect class because it wasn't sexual orientation, I guess, or was it? We have an interesting Equal Protection Clause. The Equal Protection Clause that appears in the 14th Amendment of the United States Constitution basically says everyone's entitled to the Equal Protection of the Laws, and that's it. That's all it says. Our Equal Protection Clause basically says that all people are entitled to the Equal Protection of the Laws and the enjoyment of their civil rights and may not be deprived of them based on race, religion, sex, national origin, and the like. Sexual orientation was not mentioned, but there's a story about that too. If we had had to reach the issue, at least in my opinion, we would have ruled that sexual orientation is a subset of sex and lives within it, inside of it. The history of the Constitutional Convention of 1978 bears that out, no pun intended. If I need to get it, I can walk over to my bookshelf and get it, but we didn't have to reach the issue of sexual orientation because it wasn't alleged and it wasn't at issue, at least in the record before it's on appeal, but sex very much was. That argument's been used very recently, I think even last year at the federal level. Last June, that's right. In the Title VII, employment discrimination on the basis of the fact that someone was a homosexual and someone else was in the process of transitioning from woman to man, there was a third. The funeral home case and it was based on gender or on sex. It was an interesting strategy, which you employed, obviously, successfully. I was overjoyed at Justice Gorsuch's opinion because if I had had to write the opinion, I would have done it exactly the way he did. And it's interesting because it was in a theoretically more conservative court that that came up. A lot of these questions about the state and the arguments for the state, what were their arguments that they put forth to try and have you rule in another way or the court to rule in another way? Well, on appeal and remember that this was on a very minimal record. No evidence had been gathered at all. It was simply what was alleged in the complaint, period. And so the state's main argument was that there's no discrimination involved because by its very nature, marriage is a union between a man and a woman. And so there's no sex discrimination when you deny access to marriage to a same-sex couple because by its very nature, marriage can't be a union between two people of the same sex. That was the first argument. And the second argument was that assuming that they at least get to first base on that issue, there is a compelling interest in restricting marriage to opposite sex couples. And that is that children are optimally raised in an environment where there is a mom and a dad. And therefore that in itself justifies the state discriminating against same-sex couples. Those were the two primary arguments. Among some other smaller ones, which had been then as evidence poured out then, which we saw again and again and again, especially on the national stage, I thought, by Theodore, who was the fellow that took the cause of the brilliant lawyer. Oh, Ted Olson. Ted Olson and David Boyes. David Boyes. It was wonderful to watch that. And I think that people need to understand that your ruling and the court's ruling here set off this chain of events. It didn't exist before this ruling. And it had an effect on society. So what happened? What happened when your ruling came down? What happened in society? What happened in America? I should say that I was fairly naive in approaching the bear appeal. I wasn't thinking beyond the state because the issues were purely questions of state law. And I imagined that the decision was going to attract a lot of attention. Around the country and probably around the world. But I really didn't think a whole lot about what immediate effect the decision would have on the rest of the country and not to mention the rest of the world. But it didn't take the United States Congress very long to hear about our 1993 bear decision. And the question then began to arise, what are we going to do if same-sex marriage actually becomes the law in Hawaii? Same-sex couples are married in Hawaii and they move to the mainland. And for people that may not know the Constitution, why is that an issue? Because ordinarily, under the full faith and credit clause of the federal Constitution, one state has to respect the law of another state and defer to it when there's a clash between its own law and the law of another state when a dispute arises initially in the other state. So that if a same-sex marriage couple had moved, say, from Hawaii to Missouri and Missouri didn't recognize same-sex marriage, what was supposed to happen then? And the United States government at the time did not recognize same-sex marriage. Dan Foley, in his briefing on the appeal, listed every single federal law that dealt with the rights and benefits of marriage and all of them referred to the man and the woman or the husband and the wife. And how many rights and benefits were there? Do you remember? There were over a thousand. And so in 1996, around three years after the bear decision came down, the federal Congress enacted the Defense of Marriage Act, otherwise known as DOMA, which consisted of three sections. The first section was essentially devoted to the bear cake and it recited legislative findings. And in effect, what section one said was this might happen in Hawaii. And if it happens, same-sex married couples may come to the rest of the United States with their contagion, their contagious marriage and infect the rest of the country. So we have to do something about it. And so the Congress did two things about it. In section two of DOMA, Congress decreed that if state A recognized same-sex marriage, state B was not required to. Oh, okay. State B would not have to recognize the same-sex marriage consummated in Hawaii, even if the married couple moved to state B. And what section three of DOMA did was to say, and not only that, the United States government does not recognize same-sex marriage so that even if Hawaii says you're married, we say you're not for purposes of federal law and the rights and benefits that flow from federal law. Like getting Social Security or anything else. Survivor benefits, yes. That kind of thing. Or as in Edie Windsor's case, having inheritance rights when your same-sex spouse dies. Right. Like you said, over a thousand rights and benefits. And then many states enacted their own DOMAs, including Hawaii, which must have been pretty bitter pill to see that happen. It was. And that, so when Bayer came down, the Hawaii legislature went into a tizzy. And there was a lot of sackcloth and ashes and rending of garments over what to do about it. But ultimately what happened was that the legislature proposed an amendment to the Hawaii constitution. This was after a lot of negotiation had taken place. Some of which involved Dan Foley very centrally. And we now know in retrospect we can thank Dan Foley for the amendment to the Hawaii constitution ultimately being presented to the electorate in the form it was. But what it said in effect was not that Hawaii does not recognize same-sex marriage. Didn't say that. What it said was that the legislature shall have the sole prerogative or shall have the prerogative to restrict marriage to opposite sex couples. Which basically sawed off at the knees the court's equal protection analysis basically said the equal protection clause no longer has anything to do with the right to marry in Hawaii. At least when it comes to the sex of the couples who want to get married. We the legislature say whether marriage is restricted to opposite sex couples or whether it isn't. And that amendment went on the ballot in November 1996 and was overwhelmingly ratified by the good people of the land of Aloha by a margin of roughly 70 percent to 30 percent. Which was the rate the national rate as as determined by various polling in terms of who favored same-sex marriage and who opposed it. And so everybody assumed at that point that that was the case was closed. That there would never be same-sex marriage in Hawaii because obviously the legislature would never change its mind and allow it. Well little did they know. A lot of water went under the bridge after the amendment to the Hawaii Constitution and we can talk about that if you want to. You know I would love to talk about it and I think we're going to have to wait for another show on this because this is so unbelievably this has been a half an hour already that's gone by. But I think that's a teaser for our next show and if you would if you would be so kind as to join me and and continue the story I would be honored to pick up here. Well let's make it a series. Okay let's make it a series because this is so important for us to understand this ruling and where we are today and the importance of the courts and of and and how we are have become a more perfect union and how our rights have been expanded as a peoples and it's not just gay rights but it expands our all of our rights and your role in this was so critical and and just the story is so interesting as well. So when we come back without without being arrogant I mean it's simply a fact that the bare decision changed the history of the world. It changed the history of the world and I think that is a absolutely fair thing to say and so we're going to find out more about that when we come back for the next installment of this because we didn't get through two of my questions that I got a ton of them but I will just give a spoiler alert that we can get married today in Hawaii and probably that ratio of the 70-30 has flipped and it's probably 80-20 now in the opposite direction. That wouldn't surprise me at all. I don't know but I will try and find that out. So Justice Levinson I would like to thank you so much for coming on today. I'm looking forward to of continuing this because it's it really is a series so that we can understand you know what's happening right now what's continuing to happen. We had a ruling about Kim Davis today or maybe not a ruling but a denial to hear her case at the Supreme Court. There's a lot of issues right before us right now. And some very interesting thoughts expressed by Justice Clarence Thomas. Very interesting. We'll definitely want to talk about that later. Yes and and I would say disturbing thoughts but we couldn't we'll pick those up next time and anyway for our viewers out there if you have questions about this please send them along because we're going to continue this discussion. So for today I would just like to thank you for being here Justice and we will look forward to our next installment of this Bayer versus Lewin and your impact on it and where we're going from here. Thanks so much. It was a pleasure. Thank you. Aloha everyone.