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Hawaii Can’t Ban Gay Marriages, Judge Rules Legal Battle Far From Over, But Gay Rights Advocates Praise Historic Decision

Hawaii, known for its progressive social streak, became the first state in the nation to legalize marriage between same-sex couples Tuesday when a judge ruled that banning such unions is unjustified discrimination.

“We hope to get married in the next couple of days,” said an elated Joseph Melillo, who brought suit with his partner, Patrick Lagon, and two lesbian couples. “It’s a very strong decision.”

In his opinion, Hawaii Circuit Judge Kevin S.C. Chang said that the state had failed to prove it had a compelling interest in preventing such marriages. He issued an injunction to prevent the state Department of Health from denying licenses solely because applicants are of the same sex, basing his reasoning on the equal protection clause of the state constitution.

Deputy Attorney General Rick J. Eichor, however, said no marriage licenses will be issued immediately because he will ask Chang to suspend his decision until it can be appealed to the state supreme court. “We violently disagree with it,” he said.

“We’ll know in a few days whether the licenses will be issued,” predicted plaintiffs’ attorney Daniel R. Foley. If the request for a stay is denied by Chang and the high court, “There’s a very good chance we would have same-sex marriage this year.”

Although the legal battle is far from over, gay rights advocates hailed Tuesday’s decision as a momentuous one.

“This is the first court in the United States that has ever said it is unconstitutional to deny gay men and lesbians the right to marry,” said Matt Coles, director of the Lesbian and Gay Rights Project of the American Civil Liberties Union.

“It’s the first time a respected, important institution has … acknowledged that lesbian and gay relationships are functionally the equivalent of heterosexual relationships,” he said.

Conservative opponents condemned the opinion as an outrageous example of a court thumbing its nose at public opinion.

“This is a slap in the face of the Hawaiian people and Americans everywhere,” said Robert H. Knight, director of cultural studies at the Family Research Council in Washington, D.C.

“Once again an activist judge has flouted public opinion and a perfectly reasonable law and imposed his own agenda,” Knight said, predicting that the court action will give new impetus to efforts to bar recognition of Hawaii same-sex marriages elsewhere in the country.

Fears that Hawaii would legalize same-sex marriage has launched a wave of pre-emptive legislation nationwide. The Defense of Marriage Act, signed by President Clinton this year, denies federal benefits to same-sex couples and allows states to ignore the unions.

Although polls show that Hawaii residents oppose gay marriages by a 70 percent margin, the state is known for its live-and-let-live atmosphere and for being on the cutting edge of social issues. It was the first state to pass the Equal Rights Amendment and to pass a law allowing abortion. In 1991, it outlawed discrimination against homosexuals in employment.

“Hawaii has had a tradition,” Foley said, “of protecting civil liberties more broadly than they are protected by the U.S. Constitution and the U.S. Supreme Court.”

In his decision, Chang picked apart the testimony of the expert witnesses called by the state, highlighting where they had actually supported the plaintiffs’ case.

“There certainly is a benefit to children which comes from being raised by their mother and father in an intact and relatively stress-free home,” he wrote. “However, there is a diversity in the structure and configuration of families” today, including single parents, stepparents, adoptive parents and gay and lesbian parents.

“The evidence presented by (the) plaintiffs and defendant establishes that the single most important factor in the development of a happy, healthy and well-adjusted child is the nurturing relationship between parent and child,” he concluded.

Leina’ala Pregil, 19, daughter of one of the lesbian couples who filed suit, burst into tears when she heard the news. “I am so happy,” she said. “A lot of kids grow up with parents who don’t care for them. I have two parents who love me and care for me and support me.”

The case began six years ago when Melillo and Lagon and two lesbian couples - Antoinette Pregil and Tammy Rodrigues, and Ninia Baehr and Genora Dancel - stepped up to the counter at the health department to request marriage licenses. As expected, their applications were denied.

The couples appealed their case to the state Supreme Court, whose 1993 ruling ignited an emotional debate in legislatures and living rooms across the country. The justices found that denying same-sex couples the right to marry violated the equal protection clause of Hawaii constitution, unless the state could prove such discrimination was justified.

It sent the case back to the circuit court for trial.