red
Negative treatment
Superseded by statute
Quoted verbatim 3×
41.6 score
Cite instead
G Cite
cited 2× by 1 distinct case, last quoted 2004 ·
…it is clear that states have an absolute right to prescribe the condition upon which marriage shall be created.
⚠ not in text
Treatment trajectory · 1993 → 2026 · click a year to view as-of
1993
2009
2026
Top citers, strongest first. 50 distinct citers.
How cited ↗
examined
Abrogated
Conaway v. Deane
(6×)
also: Cited as authority (rule), Cited "see, e.g."
I, § 25 (amended 1999); Baehr v. Lewin, 74 Haw. 530 , 852 P.2d 44, 64 (1993) (plurality opinion) (determining that same-sex marriage statute drew a sex-based classification), abrogated by 1997 Haw.
discussed
Cited "but see"
Samuels v. New York State Department of Health
In Valentine, we addressed an analogous assertion about the Workers’ Compensation Law and held that, since that law “is facially neutral and applies equally to males and females, we do not accept claimant’s argument that [the statute] discriminates on the basis of gender (see Baker v State, 170 Vt 194, 215 n 13, 744 A2d 864 , 880 n 13 [1999], and cases cited therein; Matter of Shields v Madigan, [supra at 906]; but see Baehr v Lewin, 74 Haw 530, 572, 852 P2d 44, 64 [1993] [based on state constitution])” (Matter of Valentine v American Airlines, supra at 41).
discussed
Cited "but see"
Claim of Valentine v. American Airlines
Because the Workers’ Compensation Law is facially neutral and applies equally to males and females, we do not accept claimant’s argument that Workers’ Compensation Law § 16 discriminates on the basis of gender (see Baker v State, 170 Vt 194, 215 n 13, 744 A2d 864 , 880 n 13 [1999], and cases cited therein; Matter of Shields v Madigan, 5 Misc 3d 901, 906 [2004]; but see Baehr v Lewin, 74 Haw 530, 572, 852 P2d 44, 64 [1993] [based on state constitution]).
examined
Cited "but see"
Baker v. State
(6×)
also: Cited as authority (rule), Cited "see"
But see Baehr v. Lewin, 74 Haw. 530 , 852 P.2d 44, 64 (1993) (plurality opinion holding that state's marriage laws discriminated on basis of sex).
examined
Cited as authority (verbatim quote)
Bostic v. Schaefer
e do not believe that a right to same-sex marriage is so rooted in the traditions and collective conscience of our people that failure to recognize it would violate the fundamental principles of liberty and justice that lie at the base of all our civil and political institutions
examined
Cited as authority (verbatim quote)
Wolf v. Walker
the result we reach today is in complete harmony with the loving court's observation that any state's powers to regulate marriage are subject to the constraints imposed by the constitutional right to the equal protection of the laws.
examined
Cited as authority (quoted)
State v. Green
(4×)
also: Cited as authority (rule)
it is clear that states have an absolute right to prescribe the condition upon which marriage shall be created.
discussed
Cited as authority (rule)
Donnelly v. Barrientos.
Ass'n, 113 Hawai#i 77, 90, 148 P.3d 1179, 1192 (2006) ("A Rule 12(c) motion for a judgment on the pleadings only has utility when all material allegations of fact are admitted in the pleadings and only questions of law remain." (quoting Baehr v. Lewin, 74 Haw. 530, 546 , 852 P.2d 44, 52 (1993), abrogated on other grounds by Obergefell v. Hodges, 576 U.S. 644 (2015))).
discussed
Cited as authority (rule)
State v. Glenn.
“In determining which rights are fundamental, we must look ‘to the traditions and collective conscience of our people to determine whether a principle is so rooted there . . . as to be ranked as fundamental.’” State v. Mallan, 86 Hawaiʻi 440, 443, 950 P.2d 178, 181 (1998) (quoting Baehr v. Lewin, 74 Haw. 530, 556 , 852 P.2d 44, 57 (1993)) (alterations omitted).
discussed
Cited as authority (rule)
Cohen v. Shushan
(2×)
See Nat’l Pride at Work, Inc. v. Governor of Mich., 274 Mich.App. 147 , 732 N.W.2d 139, 150 (2007) (“Marriage triggers legal rights, responsibilities, and benefits .... ” (emphasis added)); Tostado v. Tostado, 137 Wash.App. 136 , 151 P.3d 1060, 1063 (2007) (“Marriage is a personal, legal status, which is distinguishable ‘from the rights and privileges that are incidents of a marriage.’” (quoting State v. Rivera, 95 Wash.App. 961 , 977 P.2d 1247 (1999))); Baehr v. Lewin, 74 Haw. 530, 645 , 852 P.2d 44, 58 (1993) (“[M]arriage is a state-conferred legal status, the existence of wh…
discussed
Cited as authority (rule)
McDermott v. Ige
(2×)
Baehr v. Lewin, 74 Haw. 530, 535-37 , 852 P.2d 44, 48-49 (1993) (Baehr I).
discussed
Cited as authority (rule)
Latta v. Otter
Thus, Proposition 8 operates to restrict Perry’s choice of marital partner because of her sex.”), aff'd sub nom., Perry v. Brown, 671 F.3d 1052 (9th Cir.2012), vacated and remanded sub nom., Hollingsworth v. Perry, - U.S. -, 133 S.Ct. 2652 , 186 L.Ed.2d 768 (2013); Baehr v. Lewin, 74 Haw. 530 , 852 P.2d 44, 59 (1993) (plurality op.) (a same-sex marriage bar, "on its face, discriminates based on sex”); Baker, 744 A.2d at 905 (Johnson, J., concurring in part and dissenting in part) (a same-sex marriage bar presents "a straightforward case of sex discrimination” because it "establish[es] …
discussed
Cited as authority (rule)
SUSAN LATTA v. C. L. OTTER
Hollingsworth v. Perry, 133 S. Ct. 2652 (2013); Baehr v. Lewin, 852 P.2d 44, 59 (Haw. 1993) (plurality op.) (a same-sex marriage bar, “on its face, discriminates based on sex”); Baker, 744 A.2d at 905 (Johnson, J., concurring in part and dissenting in part) (a same-sex marriage bar presents “a straightforward case of sex discrimination” because it “establish[es] a classification based on sex”).
cited
Cited as authority (rule)
Beatie v. Beatie
Baehr v. Lewin, 74 Haw. 530 , 852 P.2d 44, 60 (1993).
discussed
Cited as authority (rule)
Timothy Bostic v. George Schaefer
See ante at 41; see also United States v. Windsor, 133 S. Ct. 2675, 2689 (2013) (“Until recent years, many citizens had not even considered the possibility of [same-sex marriage]” (emphasis added)); id. at 2715 (Alito, J., dissenting) (noting that it is “beyond dispute that the right to same-sex marriage is not deeply rooted in this Nation’s history and tradition”); Baehr v. Lewin, 852 P.2d 44, 57 (Haw. 1993) (“[W]e do not believe that a right to same-sex marriage is so rooted in the traditions and collective conscience of our people that failure to recognize it would violate the f…
discussed
Cited as authority (rule)
De Leon v. Perry
(2×)
Baehr v. Lewin, 74 Haw. 530 , 852 P.2d 44, 59 (1993).
discussed
Cited as authority (rule)
State v. Armitage.
(2×)
“Such laws are presumed to be unconstitutional unless the state shows compelling state interests which justify such classifications, and that the laws are narrowly drawn to avoid unnecessary abridgments of constitutional rights.” Id. (emphasis in original) (citing Baehr v. Lewin, 74 Haw. 530, 571-72 , 852 P.2d 44, 63-64 (1993)) (other citations omitted).
cited
Cited as authority (rule)
Kitchen v. Herbert
Baehr v. Lewin, 14, Haw. 530, 852 P.2d 44, 59 (1993). 2 And in 1999, the Vermont Supreme Court held that the State of Vermont was required to offer all the benefits of marriage to same-sex couples.
cited
Cited as authority (rule)
Ah Mook Sang v. Clark.
Touchette v. Ganal, 82 Hawai'i 293, 298 , 922 P.2d 347, 352 (1996) (quoting Baehr v. Lewin, 74 Haw. 530, 545 , 852 P.2d 44, 52 (1993)) (brackets and internal citations omitted).
discussed
Cited as authority (rule)
Donaldson v. State of Montana
In considering the same-sex couples’ constitutional challenge, the court observed that “a multiplicity of rights and benefits” are contingent upon the status of 40 marriage, but the court found it “unnecessary . . . to engage in an encyclopedic recitation of all of them.” Baehr v. Lewin, 852 P.2d 44, 59 (Haw. 1993). ¶71 The Vermont Supreme Court likewise had no difficulty analyzing the legality of excluding same-sex couples from the “broad array of legal benefits and protections incident to the marital relation, including access to a spouse’s medical, life, and disability insura…
discussed
Cited as authority (rule)
Donaldson v. State
In considering the same-sex couples’ constitutional challenge, the court observed that “a multiplicity of rights and benefits” are contingent upon the status of marriage, but the court found it “unnecessary ... to engage in an encyclopedic recitation of all of them.” Baehr v. Lewin, 852 P.2d 44, 59 (Haw. 1993). ¶71 The Vermont Supreme Court likewise had no difficulty analyzing the legality of excluding same-sex couples from the “broad array of legal benefits and protections incident to the marital relation, including access to a spouse’s medical, life, and disability insurance, …
examined
Cited as authority (rule)
Jackson v. Abercrombie
(8×)
also: Cited "see"
On appeal, the Hawaii Supreme Court, relying on federal case law, held that there is no fundamental right to marriage for same-sex couples under the Hawaii Constitution “arising out of the right to privacy or otherwise.” Id. at 57.
cited
Cited as authority (rule)
Massachusetts v. United States Department of Health & Human Services
Baehr v. Lewin, 74 Haw. 530 , 852 P.2d 44, 48, 68 (1993).
examined
Cited as authority (rule)
Jackson v. Abercrombie
(4×)
also: Cited "see"
Baehr v. Lewin, 74 Haw. 530 , 852 P.2d 44, 48-49 (1993).
discussed
Cited as authority (rule)
Fisher v. Grove Farm Co., Inc.
(2×)
“A Rule 12(c) motion for a judg *95 ment on the pleadings only has utility when all material allegations of fact are admitted in the pleadings and only questions of law remain.” Id. at 546, 852 P.2d at 52 (citation, internal quotation marks, and ellipsis omitted).
discussed
Cited as authority (rule)
In the Matter of Brad Levenson
(2×)
also: Cited "see, e.g."
See supra page 931 (citing Witt v. Dep’t of Air Force, 527 F.3d 806, 818-21 (9th Cir.2008); id. at 823-26 (Canby, J., concurring in part and dissenting in part); Baehr v. Lewin, 74 Haw. 530 , 852 P.2d 44, 67, 68 (1993)).
discussed
Cited as authority (rule)
In Re Marriage Cases
(2×)
(See, e.g., Baehr v. Lewin, supra, 852 P.2d 44, 60 (plur. opn. of Levinson, J.), endorsed by a majority of justices on motion for reconsideration or clarification, and further explicated in Baehr v. Miike (Haw., Dec. 9, 1999, No. 20371) 1999 Haw.
examined
Cited as authority (rule)
Lewis v. Harris
(4×)
Stat. Ann. § 20-1-101 . [12] See Dean v. District of Columbia, 653 A.2d 307, 331 (D.C. 1995); Standhardt v. Superior Court of Ariz., 77 P.3d 451, 459-60 (Ariz. Ct. App. 2003); Baehr v. Lewin, 852 P.2d 44, 57 (Haw. 1993); Morrison v. Sadler, 821 N.E.2d 15, 34 (Ind. Ct. App. 2005); Baker, supra, 191 N.W.2d at 186 ; Hernandez v. Robles, Nos. 86-89, 2006 N.Y.
discussed
Cited as authority (rule)
In Re Marriage Cases
It is the newness or novelty of this right, narrowly defined, that precludes its recognition as "fundamental." [19] Indeed, the Massachusetts Supreme Judicial Court acknowledged that its decision to extend marriage rights to same-sex couples "[c]ertainly . . . marks a significant change in the definition of marriage as it has been inherited from the common law, and understood by many societies for centuries." ( Goodridge v. Department of Public Health, supra, 798 N.E.2d at p. 965.) The court predicted, however, that this new definition would not alter the "fundamental value of marriage in our …
discussed
Cited as authority (rule)
Preble v. Board of Trustees
Baehr v. Lewin, 74 Haw. 530, 545 , 852 P.2d 44, 52 (1993), quoted in Keauhou Master Homeowners Ass’n v. County of Hawai’i, 104 Hawai'i 214, 218 , 87 P.3d 883, 887 (2004); In re Estate of Rogers, 103 Hawai'i 275, 280-81 , 81 P.3d 1190, 1195-96 (2003).
discussed
Cited as authority (rule)
Hawaii Medical Ass'n v. Hawaii Medical Service Ass'n
(2×)
“A Rule 12(c) motion for a judgment on the pleadings only has utility when all material allegations of fact are admitted in the pleadings and only questions of law remain.” Id. at 546, 852 P.2d at 52 (citation, internal quotation marks, and ellipsis omitted).
examined
Cited as authority (rule)
Andersen v. King County
(3×)
also: Cited "see"
Baehr v. Lewin, 74 Haw. 530 , 852 P.2d 44, 58 (1993).
discussed
Cited as authority (rule)
Andersen v. King County
(2×)
also: Cited "see"
Baehr v. Lewin, 74 Haw. 530 , 852 P.2d 44, 58 (1993).
examined
Cited as authority (rule)
Child Support Enforcement Agency v. Doe
(4×)
Baehr v. Lewin, 74 Haw. 530, 571-72 , 852 P.2d 44, 63-64 (1993).
cited
Cited as authority (rule)
Smelt v. County of Orange
I, § 25 (amended 1999); Marriage Cases, slip op. at *16-19, 2005 WL 583129 , at *8-10; Baehr v. Lew- *876 in, 74 Haw. 530 , 852 P.2d 44, 64 (Haw. 1993), superseded by constitutional amendment, Haw.
discussed
Cited as authority (rule)
Hernandez v. Robles
It sidesteps the entire analysis”] [holding that exclusion of same-sex couples from marriage violates Canadian Charter of Rights and Freedoms]; Baehr v Lewin, 74 Haw 530, 565, 852 P2d 44, 61 [1993] [argument that “the right of persons of the same sex to marry one another does not exist because marriage, by definition and usage, means a special relationship between a man and a woman” deemed “circular and unpersuasive”].) Marriage is no more limited by the historical exclusion of same-sex marriage than it was limited by the exclusion of interracial marriage, the legal doctrine of cover…
examined
Cited as authority (rule)
Morrison v. Sadler
(4×)
For example, in Baehr v. Lewin, 74 Haw. 530 , 852 P.2d 44, 56 (1993), the Hawaii Supreme Court held that a restriction of marriage to opposite-sex couples was subject to strict scrutiny under the Hawaii Constitution's equal protection guarantee, but nevertheless also readily concluded "that the federal construct of the fundamental right to marry subsumed within the right to privacy implicitly protected by the United States Constitution presently contemplates unions between men and women." This conclusion is difficult to disagree with, given the Minnesota Supreme Court's decision in Baker…
discussed
Cited as authority (rule)
Lockyer v. City and County of San Francisco
(2×)
Health, supra, 798 N.E.2d 941 , 974-1105 (dis. opns. of Spina, J., Sosman, J., & Cordy, J.); Baehr v. Lewin, supra, 852 P.2d 44, 70-73 (dis. opn. of Heen, J.)]).
examined
Cited as authority (rule)
State v. Guidry
(3×)
also: Cited "see"
Assuming arguendo, the “rational basis test” would apply, we inquire as to whether HRS 846E “rationally furthers a legitimate state interest.” Baehr, 74 Haw. at 572 , 852 P.2d at 64 (citations omitted).
discussed
Cited as authority (rule)
Kahale v. City and County of Honolulu
(2×)
Our inquiry seeks only to determine whether any reasonable justification can be found for the legislative enactment.'" Id. (quoting Baehr v. Lewin, 74 Haw. 530, 571 , 852 P.2d 44, 63 (1993)).
discussed
Cited as authority (rule)
Standhardt v. Superior Court
(2×)
also: Cited "see"
Implicit in Loving and predecessor opinions is the notion that marriage, often linked to procreation, is a union forged between one man and one woman. 388 U.S. at 12 , 87 S.Ct. 1817 (“Marriage is one of the ‘basic civil rights of man,’ fundamental to our veiy existence and survival.”) (citation omitted); Baehr, 74 Haw. at 552-55 , 852 P.2d at 55-56 (discussing Supreme Court opinions construing fundamental right to marry and concluding right “presently contemplates unions between men and women”).
discussed
Cited as authority (rule)
Matsuura v. EI Du Pont De Nemours and Co.
(2×)
In reviewing the adequacy of a complaint, we deem the allegations contained within it to be true and examine whether "it appears beyond doubt that the plaintiff can prove no set of facts in support of his or her claim that would entitle him or her to relief." Blair v. Ing, 95 Hawai`i 247, 252, 21 P.3d 452, 457 (2001) (quoting Baehr v. Lewin, 74 Haw. 530, 545 , 852 P.2d 44, 53 (1993) (internal citations omitted)).
examined
Cited as authority (rule)
SCI Management Corp. v. Sims
(6×)
This court has held that “[w]henever a denial of equal protection of the laws is alleged, as a rule our initial inquiry has been whether the legislation in question should be subjected to ‘strict scrutiny or to a ‘rational basis’ test.” 7 Baehr v. Lewin, 74 Haw. 530, 571 , 852 P.2d 44, 63 (1993) (quoting Nakano v. Matayoshi, 68 Haw. 140, 151 , 706 P.2d 814, 821 (1985)).
discussed
Cited as authority (rule)
Goodridge v. Department of Public Health
Baker v. Vermont, 744 A.2d 864, 868-69 (Vt. 1999): Storrs v. Holcomb, 645 N.Y.S.2d 286, 287-88 (N.Y.Sup.Ct. 1996); Dean v. District of Columbia, 653 A.2d 307, 312-16 (D.C. 1995); Baehr v. Lewin, 852 P.2d 44, 56-57 (Haw. 1993); Singer v. Hara, 522 P.2d 1187, 1191 (Wash.Ct.App. 1974); Jones v. Hallahan, 501 S.W.2d 588, 589 (Ky. 1973); Baker v. Nelson, 191 N.W.2d 185, 186 (Minn. 1971); Anonymous v. Anonymous, 325 N.Y.S.2d 499 (N.Y.Sup.Ct. 1971).
discussed
Cited as authority (rule)
Universal Life Church v. Utah
Indeed, “marriage is a state-conferred legal status, the existence of which gives rise to the rights and benefits reserved exclusively to that particular relationship.” Baehr v. Lewin, 74 Haw. 530 , 852 P.2d 44, 58 (1993).
examined
Cited as authority (rule)
State v. Mallan
(19×)
also: Cited "see"
For present purposes, the relevant issue in Baehr was not whether the state’s police power permitted the criminalization of any particular conduct, but “whether the ‘right to marry’ protected by article I, section 6 of the Hawaii Constitution extended] to same-sex couples.” Baehr, 74 Haw. at 552 , 852 P.2d at 55 (emphasis added).
discussed
Cited as authority (rule)
Tabieros v. Clark Equipment Co.
The plaintiffs' complaint characterizes Wilson as Tabieros’s "common law wife.” This court "declared, over seventy years ago, that 'common law’ marriages—i.e., 'marital' unions existing in the absence of a state-issued license and not performed by a person or society possessing governmental authority to solemnize marriages— would no longer be recognized in the Territory of Hawaii.” Baehr v. Lewin, 74 Haw. 530, 559 , 852 P.2d 44, 58 (citing Parke v. Parke, 25 Haw. 397, 404-405 (1920)), clarification granted in part, 74 Haw. 650 , 875 P.2d 225 (1993).
examined
Cited as authority (rule)
Coyle v. Compton
(3×)
Baehr v. Lewin, 74 Haw. 530, 571 , 852 P.2d 44, 63 (1993); Nakano v. Matayoshi, 68 Haw. 140, 151 , 706 P.2d 814, 821 (1985).
Retrieving the full opinion text from the archive…
NINIA BAEHR, GENORA DANCEL, TAMMY RODRIGUES, ANTOINETTE PREGIL, PAT LAGON, JOSEPH MELILIO, Plaintifis-Appellants
v.
JOHN C. LEWIN, in his official capacity as Director of the Department of Health, State of Hawaii
v.
JOHN C. LEWIN, in his official capacity as Director of the Department of Health, State of Hawaii
NO. 15689.
Hawaii Supreme Court.
May 27, 1993.
Robert A. Marks, Attorney General, and Sonia Faust, Deputy Attorney General, for appellee John C. Lewin.
Burns, Former, Heen, Intermediate, Klein, Levinson, Lum, Moon, Nakayama, Place.
Cited by 11 opinions | Published
Citer courts: Utah Supreme Court (2)
Lead Opinion
Defendant-Appellee’s motion for reconsideration, or, in the alternative, for clarification, and suggestion of the appropriateness of rebriefing and reargument having been filed in the above-captioned matter on May 17,1993, the motion is hereby granted in part, and the mandate on remand is hereby clarified as follows:
Robert A. Marks, Attorney General, and Sonia Faust, Deputy Attorney General, for appellee John C. Lewin.Because, for the reasons stated in the plurality opinion filed in the above-captioned matter on May 5,1993, the circuit court erroneously granted Lewin’s motion for judgment on the pleadings and dismissed the plaintiffs’ complaint, the circuit court’s order and judgment are vacated and the matter is remanded for further proceedings consistent with the plurality opinion. On remand, in accordance with the “strict scrutiny” standard, the burden will rest on Lewin to overcome the presumption that HRS § 572-1 is unconstitutional by demonstrating that it furthers compelling state interests and is narrowly drawn to avoid unnecessary abridgments of constitutional rights. See Nagle v. Board of Educ., 63 Haw. 389, 392, 629 P.2d 109, 111 (1981 ); Holdman v. Olim, 59 Haw. 346, 349, 581 P.2d 1164, 1167 (1978).
Defendant-Appellee’s motion is denied in all other respects.
Intermediate Court of Appeals Judge Heen, having filed a dissenting opinion in this matter, does not concur.
Concurrence
CONCURRING OPINION BY
CHIEF JUDGE BURNSThere are three opinions in this case: (1) LevinsonMoon; (2) Burns; and (3) Heen-Hayashi. Appellee Lewin disagrees with the Levinson — Moon and Burns opinions and seeks reconsideration of both. With respect to the Levinson-Moon opinion, I concur with the decision by[*647] Justice Levinson and Chief Justice Moon to grant the motion in part. With respect to the Bums opinion, I deny the request.
Alternatively, appellee Lewin seeks clarification of this court’s mandate. The only agreement by a majority of this court is that this case involves genuine issues of material fact. In my view, that is this court’s mandate. Thus far, there is no majority agreement as to what these issues are or which side has the burden to prove them. Presented with this chance to write more than I have already written in the Bums opinion about these issues and burdens, I choose to wait for the next appeal. At that time, hopefully, there will be: a complete record of a trial in which the parties have presented their evidence and arguments and the trial court has made its decisions of fact and law; and opening, answering and reply briefs fully discussing the issues and the applicable law.