Chapter 1
CIVILIZING GAYS, CIVILIZING STRAIGHTS
Americans are romantics. We fantasize about finding our "one true love." For most of us, that fantasy culminates in a proposal of marriage, a religious ceremony, and a honeymoon. In the fairytale romance the couple live happily ever after, sharing mutual love, perhaps creating a larger family, and parting only at death. Reality is seldom as good as fantasy, but the attractions of marriage maintain a powerful hold on our imagination and aspirations.
Ninia Baehr shares that American dream. She is engagingly intellectual, a woman of personal as well as physical beauty. Fawnlike, she has brown eyes that engulf you with understanding and alert sympathy. Slight of build, Ninia is anything but frail. She is enthusiastically engaged with life. Spiritually, she is something of a romantic. Now thirty-four years old, she wants to be able to look back on her life and know that there was someone she loved so much that she was willing to pledge lifelong fidelity to that person. Although Ninia had dated ardently in her twenties, she never found the right person. Then her mother introduced her to Genora Dancel in June 1990.
Genora has happy, dancing brown eyes. Her broad, dimpled smile and friendly, easygoing disposition belie her serious work ethic. For much of her adulthood she has held down more than one job. In 1990 one of her jobs was as a technical engineer for KHET, the PBS television station in Honolulu. There she met C. J. Baehr (Ninia's mother), who worked in another department. They liked one another, and C.J. told Genora about her wonderful daughter Ninia, a lesbian (Genora made a mental note of that). One day Genora was waiting outside the station when Ninia came to pick her mother up. Upon seeing Ninia in the car, Genora was impressed with her beauty. When Ninia saw Genora, she thought, "Oh my God, this woman is perfect!" On the ride home Ninia asked her mother about the woman she had just seen. C. J. explained, "Oh that's my wonderful friend Genora; I hear she's a lesbian. I'd be happy if she were your friend, too. Why don't you meet her?" Ninia was interested.
Several days later Ninia came calling at KHET. Both she and Genora were exceedingly nervous, but mutual friends say that sparks were flying from both sides. The two women went out for drinks. That night Genora called C. J. for advice about how to proceed, but Ninia herself happened to answer the phone. They spoke for hours, indicating to each that this was a relationship that needed to be explored. In the course of dating for several months Ninia and Genora developed a warm friendship and found they had many interests in common. Mainly they were delighted just to be with one another. Each thought of the other when they were apart, looked forward to their time together, and realized that it was becoming increasingly hard to imagine life without the other.
When Genora traveled to San Diego for a technical training course in September, the pain of separation for each woman was intense. Ninia called every day. During one call Genora said, "When I get back, you'll know that I love you." She was referring to an engagement ring she had purchased, a stunning arrangement of three rubies and two diamonds set in gold. Genora paused and then popped the question, "Will you marry me?" A microsecond later Ninia answered, "Yes!"
At this point most couples would announce their engagement to their families, friends, and coworkers. Most couples would set a date for the ceremony and obtain a marriage license. These steps were not possible for Ninia and Genora. Lesbian and gay couples are not allowed to marry in the United States.
Still, Genora Dancel and Ninia Baehr were prepared to consider themselves committed to each other. They began to plan their life together. As one step in that plan they decided to change their life insurance policies to name one another as beneficiaries. To their surprise, the insurance companies refused to make the change, allowing only legal spouses, not unmarried partners, to be named as beneficiaries. The couple sought advice about this policy from Bill Woods, a lawyer and longtime gay activist in Honolulu. Woods mentioned that Hawaii's discrimination against same-sex couples might be vulnerable to constitutional challenge and asked if Baehr and Dancel were interested in such a challenge. He suggested that other couples might be interested, too.
This was a tough decision for Baehr and Dancel. The couple strongly support domestic partnership laws, through which same-sex couples can register their partnership and obtain some of the legal benefits of marriage. The question was, should they work for Honolulu or the state of Hawaii to adopt a domestic partnership law, or should they leapfrog domestic partnership and seek full marriage rights? As a feminist scholar and historian, Baehr was aware that many women consider marriage to be an oppressive institution that has traditionally bound women to subordinate roles. Her own parents' marriage had ended in divorce, and the motive of a relative who was about to enter into a marriage had more to do with an unexpected pregnancy than lifelong love and commitment. Baehr had no illusions about marriage, but it galled her that so much fuss is made over the most ill-fated different-sex marriage while the most committed same-sex couple is typically ignored. "Why shouldn't Genora and I have the same right as everyone else?" she asked.
For Dancel it was less the feminist criticisms of marriage than the publicity from a lawsuit that presented a problem. In the closet to her family and most of her coworkers, Dancel was apprehensive about coming out. Would her parents still love her? Would her coworkers treat her differently, even shun her? Would she lose her job? Would she suffer public harassment? These were not hypothetical concerns. Dancel had occasionally heard vicious antihomosexual remarks from her coworkers. In light of Dancel's delicate situation, Baehr was perfectly willing to forgo the opportunity to mount a challenge against discrimination. Dancel, in turn, agreed with Baehr's view that their relationship stood on an equal footing with any heterosexual one and that they should not be ashamed of their sexuality or hide their union. "When you're told you can't get married, you feel like a second-class citizen," Dancel noted. After much soul searching, the couple notified Woods that they would be interested in participating in a constitutional challenge to Hawaii's discrimination against same-sex couples.
On December 17, 1990, Baehr and Dancel fried an application for a marriage license with the Hawaii Department of Health. They were joined by two other couples: Tammy Rodrigues and Antoinette Pregil, and Pat Lagon and Joseph Melilio. All three couples met the requirements for a marriage license except for the requirement that the applicants be of different sexes. Their view was that this discriminatory requirement is invalid and in conflict with both the Hawaii and United States Constitutions. John C. Lewin, the state's director of health, requested an opinion from the state attorney general as to the legality of denying same-sex couples state marriage licenses.
On December 27, the attorney general opined that the state's discrimination was lawful. Admitting that "the right to marry is considered to be a fundamental one" under the United States Constitution, the attorney general insisted that this fundamental right is not available to same-sex couples. Under his view, constitutional rights in this arena are limited to decisions "to marry and raise [a] child in a traditional family setting." The attorney general followed the approach of the Kentucky Supreme Court, which had said in 1973, "Marriage has always been considered as the union of a man and a woman."
In accord with this legal opinion, the Hawaii Department
