A 1996 General Accounting Office study found that federal statutes and regulations confer 1,096 rights and benefits to married couples. It has been estimated that state laws confer approximately 300 additional rights and responsibilities on spouses. Many of these rights and responsibilities (such as the right to sue for wrongful death, the right to family medical leave, and the spousal privilege against testifying in court) cannot be obtained through private contract; rather, they are available only through the state's grant of a marriage license.

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But marriage is more than just a bundle of rights. It is a unique institution seen by many as the building block of society. The United States Supreme Court has said that marriage is "fundamental to our very existence and survival" and that the "freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness" (Loving v. Virginia [1967]).

Committed same-sex couples seek the right to marry for the happiness, the sense of worth, and the social respect that comes with marriage. With marriage the community will mature, in the words of Professor William Eskridge, "from sexual liberty to civilized commitment."

Early Cases

The first same-sex marriage case was filed in Minnesota in May of 1970, a mere nine months after the Stonewall riots, by Jack Baker and Michael McConnell. Baker and McConnell relied on the United States Supreme Court 1967 decision in Loving v. Virginia, which struck down Virginia's ban on interracial marriage, but the Minnesota Supreme Court distinguished Loving, concluding "in commonsense and in a constitutional sense, there is a clear distinction between a marital restriction based merely on race and one based upon the fundamental difference in sex" (Baker v. Nelson [1971]).

The court refused to consider Baker and McConnell's equal protection claim, holding instead that "[t]he institution of marriage as a union of man and woman . . . is as old as the book of Genesis." Baker and McConnell appealed the decision to the United States Supreme Court, which summarily dismissed the appeal for "lack of a substantial federal question."

Two other post-Stonewall same-sex marriage cases, filed in Kentucky by a lesbian couple (Jones v. Hallahan [1973]) and in Washington State by a gay male couple (Singer v. Hara [1974]), met the same fate as Baker.

In all of these early same-sex marriage cases the courts were content to rest their decisions on the circular argument that the couples' equal protection rights were not violated because the definition of marriage excluded them from coverage. As the Kentucky court put it, "the relationship proposed by the applicants does not authorize the issuance of a marriage license because what they propose is not a marriage." The Washington court followed a similar reasoning: "Appellants were not denied a marriage license because of their sex; rather, they were denied a marriage license because of the nature of marriage itself."

The Hawaii and Alaska Cases

These early, resounding defeats, coming in quick succession, quieted the drive for marriage equality for almost twenty years. While the lesbian and gay civil rights movement focused its energies and achieved many legal victories in the twenty-five years after Stonewall on issues such as the repeal of laws, protection from workplace discrimination, and hate crimes, little was said about same-sex marriage. That changed in a heartbeat with the Hawaii Supreme Court's landmark decision in Baehr v. Lewin in 1993, a case brought by six same-sex couples seeking the right to marry.

The court reviewed the Minnesota, Kentucky, and Washington same-sex marriage cases, cases that had held sway for a generation, and forcefully rejected them, calling their reasoning an "exercise in tortured and conclusory sophistry." The court held that denying same-sex couples marriage licenses would violate Hawaii's Equal Rights Amendment unless the state could show a compelling interest justifying the exclusion. The court remanded the case to the trial court for a hearing to allow the state to present evidence satisfying the compelling interest standard.

The trial court took testimony from eight witnesses expert in the fields of sociology, psychiatry, and gender development. In a 1996 decision the trial court concluded that "same-sex couples can, and do, have successful, loving and committed relationships," and "[g]ay and lesbian parents and same-sex couples can be as fit and loving parents, as non-gay men and women and different-sex couples." The court held the state had not met its burden under the compelling interest standard, but stayed enforcement of its decision pending appeal to the Hawaii Supreme Court.