How Do Judges Decide?

Abstract

It all began in December 1990, but few Americans were aware of it until the spring of 1996, when the issue leapt into our national consciousness and initiated an intense debate. At issue: the legality of same-sex marriages. In Hawaii three same-sex couples (a pair of men and two pairs of women) had applied for marriage licenses, based on their reading of that state’s Equal Rights Amendment. Their requests were quickly rejected by a judge. (The denial of the application was not a surprise, as detailed below). When the couples appealed the decision, the supreme court of the state of Hawaii ruled in May of 1993 (in the case of Baehr v. Lewin, later retitled Baehr v. Miike) that the denial of marriage licenses to these couples conflicted with provisions against sex discrimination in Hawaii’s state constitution. But rather than summarily proclaiming that the state must honor same-sex marriages, the court remanded the case to the trial judge “to undertake a strict-scrutiny review to determine whether a compelling state interest justifies the discriminatory effects of not recognizing same-sex marriages” (Greenberg & Gasman, 1996, p. B8). Unless such a “compelling” interest could be demonstrated, such requests would henceforth be honored by the courts.