Steven Levinson

Steven Levinson wrote almost 300 legal opinions during his long career as a judge in Hawaii, but probably none has reverberated more widely than the one he wrote in 1993 while an associate justice with the Hawaii Supreme Court that set the ball rolling toward the legalization of same-sex marriage — not only in Hawaii but nationwide as well.

Just last week the U.S. Supreme Court declared that same-sex couples have a right to marry, effectively striking down laws against such marriages that still existed in 13 states. Two years earlier, the high court had overturned the federal Defense of Marriage Act, which limited marriage for federal purposes to heterosexual couples and allowed states to refuse to recognize same-sex marriages from other states.

But the case Levinson ruled on 22 years ago, Baehr v. Lewin, was the first anywhere to hold that it was presumtively unconstitutional to prohibit access to legal marriage by same-sex couples.

The case had been initiated in 1990 by three same-sex couples against state Health Director John Lewin, whose department had refused to issue them marriage license applications. (Their attorney was Dan Foley, who now is an associate justice on the state Intermediate Court of Appeals.) They lost in Circuit Court, but Levinson agreed with their appeal and sent the case back to Circuit Court “for further proceedings consistent with this opinion,” unless it could be shown that the state had a compelling reason to do otherwise.

What happened next — after one more state trial (Baehr v. Miike) that echoed Levinson’s ruling, and before the state Supreme Court could consider the issue a second time — was that Hawaii adopted a constitutional amendment reserving the right to define marriage to the Legislature, which at the time opposed same-sex marriage. That’s how it remained until 2013, when the Legislature sent a bill legalizing it to Gov. Neil Abercrombie, who signed it.

Before retiring in 2008, Levinson had served on the state Supreme Court for almost 17 years, before which he was a Circuit Court judge, appointed by Gov. John Waihee in 1989. Before that he had been in private practice, since 1972, after moving to Hawaii in 1971 to clerk for his uncle, state Supreme Court Associate Justice Bernard Levinson.

Steven Levinson graduated from Walnut Hills High School in Cincinnati, then earned a bachelor’s degree in political science from Stanford University and a law degree from the University of Michigan.

After retiring, he joined groups such as Equality Hawaii, Hawaii United for Marriage (now defunct), and ACLU of Hawaii, enjoying his restored freedom to publicly speak out. He also has found joy in officiating same-sex weddings — 35 so far.

He is the father of two adult children by his first wife, Lynn (“my childhood sweetheart”), who died in 2000. He subsequently remarried and with his wife, Cathy, lives in Manoa.

Question: I get the impression that you’re a happy man right now, considering how the U.S. Supreme Court ruled about same-sex marriage on June 26. Is happy the right word?

Answer: Well, “happy” is certainly an accurate word. The events leading up to this decision since June of 2013, when Justice (Anthony) Kennedy authored the Windsor decision (striking down the federal Defense of Marriage Act), had made it fairly likely. In fact, I don’t think a bookmaker with any professional sense would have given odds that the court would go the other way. … So I’m happy primarily because this is it. It’s over. It’s closure.

Basically the only thing that could change this outcome would be an amendment to the United States Constitution, which I know some opponents of same-sex marriage are talking about. I think the odds of such an amendment being ratified … are next to zero. So there may be a lot of breast-beating and lamentation from the other side, but for all practical purposes, we finally have gotten where we wanted to go, and that makes me very happy.

Q: Regarding a possible amendment, that reminds me of Hawaii and what happened here after your ruling. And I think it pointed out the danger of democracy as well, don’t you?

A: Right. I mean, the primary purpose of the Bill of Rights in the United States Constitution, and the parallel protections that we’ve got in our state Constitution, is precisely to deal with the tyranny of the majority. … They protect the individual against the popular will when the popular will is tyrannical.

So, sure, although in all my naiveté I didn’t foresee it happening, the Baehr v. Lewin decision prompted Congress to pass the Defense of Marriage Act. Congress said so expressly in the committee reports relating to the bill, … that Congress was trying to quarantine in Hawaii same-sex marriage, if it actually happened in Hawaii. And then, of course, lots of states around the country (passed laws against same-sex marriage). …

The one that was ultimately proposed here by the Hawaii Legislature in 1997 and ratified by the electorate in 1998 was probably the most benign, or least malignant, of all of these constitutional amendments because it didn’t prohibit same-sex marriage. It essentially gave the Legislature a monopoly over the decision as to whether there would be same-marriage. Of course, in 1997-98, the general sense of the Legislature was that it didn’t want same-sex marriage. …

In 2010, the Legislature took the half-way step of creating the status of civil union for same-sex couples. And then Gov. (Linda) Lingle promptly vetoed it. Her veto message is of record; you can find it. I think it was completely lacking in integrity and intellectually dishonest. But in any event, she vetoed the civil union bill. And then that, of course, was the year of the gubernatorial campaign, and then-candidate Neil Abercrombie went on record … that he would quite gladly sign a civil union bill, if it was sent to his desk by the Legislature. So in 2011 the Legislature passed a civil union bill again, tinkering a little bit with the language, and then-Gov. Abercrombie signed the bill.

Q: What’s the difference between civil union and actual marriage?

A: From a legal standpoint, … the civil union law … said very clearly that any state-conferred right or benefit that a couple would be entitled to by virtue of being married, partners to a civil union would also be entitled to. So in terms of what the state could do for loving, committed couples, the civil union bill did everything that marriage could do, other than to put same-sex couples on an equal footing with opposite-sex couples in terms of the social significance of marriage, the symbolic significance of marriage and equal status. It was kind of an attempt at separate-but-equal: “You folks can ride the bus, but you have to ride in the back of the bus.”

Q: Would Hawaii civil unions be recognized in other states?

A: That depended on the state. … Most importantly, after Congress passed the Defense of Marriage Act, in 1996, the federal government did not recognize civil unions as having any legal significance, and would not recognize same-sex marriage as having any federal legal significance, either. It stayed that way until 2013 when the Supreme Court … struck down part of the Defense of Marriage Act, which provided that the federal government viewed marriage as consisting of a union between a man and a woman. … From that point on, the federal government recognized same-sex marriages that were lawfully performed and recognized in the states where they occurred.

Q: Did that include IRS issues?

A: Very much so. In fact, it was an IRS-related issue that prompted Edie Windsor to sue in the first place, because she and her late spouse had gotten married in New York when that became legal. They were elderly when they were married; they had been waiting a very long time for the right to get married. Then, sad to say, Edie Windsor’s spouse died, and that left Edie Windsor and the house …, the title to which was in the name of the deceased spouse. So Edie Windsor had to claim, as a tax matter, inheritance of the house as the surviving spouse, and the IRS said, “Sorry, we don’t recognize your marriage, and here’s a bill for $380,000 — it was either a gift tax or an estate tax, I forget which — “and unless you want us to foreclose on the house, pay us the $380,000.” So she got a lawyer and sued, and ultimately won.

Q: Would you say the Supreme Court ruling just the other day was similar to the one you wrote in 1993?

A: Well, the short answer is that the Supreme Court decision that came down on Friday went much, much, much, much further than the Baehr v. Lewin did in 1993. … By the time (the issue) got to the Supreme Court this time, 37 states, depending on how you figure it, plus the District of Columbia, had legalized same-sex marriage, and the language that Justice Kennedy uses in his decision is breathtakingly broad.

In effect, what he says is that LGBT (lesbian, gay, bisexual, transgender) people have gotten a raw deal for years, and it’s unfair, and lots of LGBT people want to marry the person with whom they’ve been in a loving and committed relationship, in many cases for 30 years or more.

And they have children, and the effect of their not being permitted to marry is harming the children, and this involves a great humiliation of same-sex couples and their children, and a tremendous legal disadvantage and social stigma, and all of that is just abhorrent to the Due Process clause of the 14th Amendment, which requires the states to give everybody due process of law, because the right to marry is a fundamental right — our court has said so for years — and it’s just wrong that same-sex couples are not being given access to this fundamental right. Because they’re being treated differently from opposite-sex couples, that violates the equal-protection clause of the 14th Amendment also. Well, nobody 10 years ago could have gotten away with that analysis. If anybody had gone to the United States Supreme Court, they would have been squashed like a bug.

Q: Well, that’s interesting that you opened the door way back then (in 1993). Did you realize that at the time?

A: The funny thing is that I didn’t. At the time I knew, at least for Hawaii, this was the Big One, with a capital “B” and a capital “O.” And that issues like this didn’t come to the court more than once in a lifetime, generally speaking. And that its importance to the state of Hawaii was tremendous. And because we were deciding the case on strictly state-law grounds, I really didn’t think about what impact it might have beyond the borders of the state.

The real impact didn’t become clear until the United States Congress, in a fit of hysteria and fear that the possibility of same-sex marriage in Hawaii might leap onto the mainland, and therefore they needed to put a stop to this and pass the Defense of Marriage Act, did I fully realize that we had let a genie out of the bottle.

And then, of course, various countries around the world began sitting up and taking notice, like the Netherlands, which was the first to legalize same-sex marriage, and then Massachusetts in 2004, then more states and more countries, and then at that point it became a matter of Hawaii catching up with the rest of the world.

Q: How much of the reasoning did you borrow from the plaintiffs’ lawyer, Dan Foley?

A: Well, we had Dan Foley’s brief, which was a very good one, and he made passing reference to the idea that what was going on here was sex discrimination. … Very cleverly in his complaint he never alleged what the sexual orientation was. All that the lawsuit claimed was that these were three same-sex couples. So when it finally sank in with us, that we didn’t have to get to the question of sexual orientation, because the plaintiffs hadn’t alleged it, and there was no record, and so it hadn’t been established anywhere what the plaintiffs’ sexual orientation was, then clearly we had sex discrimination, and everything fell into place from there, in terms of equal-protection analysis.

Q: Looking forward, a lot of people are afraid that now there will be all kinds of efforts to compel them to bake cakes and such for same-sex couples who are having weddings, even if they don’t want to, perhaps for religious reasons. Is that a legitimate fear?

A: I personally believe that the fear is vastly overblown. Public accommodations laws vary from state to state. Hawaii has one of the stronger ones, and as a general proposition what these laws say is if you’re in business and serving the general public in whatever service it is you’re providing, you can’t discriminate on the basis of sex, race, national origin, religion, … so a bakery in Hawaii legally has to bake a cake for whoever asks for it and has the money to pay for it.

But, you know, I think as a practical matter, if I were planning my wedding again, I certainly wouldn’t want to do business with someone who thought I was an abomination. And it’s always been the case that clergy people don’t have to marry anybody they don’t want to marry.

I think the fear is that this is kind of a political game and that there’s this great agenda underway, and advocates of rights for LGBT people are going to go searching for people to sue. While it’s possible that somebody might do that on an intermittent, ad hoc basis, I would be astounded if there were any concerted efforts along those lines.