Twenty years ago, a state court ruling from Hawaii sparked the same-sex marriage movement that has now become the civil rights struggle of our time.  Today, a Hawaiian state court ruled that same-sex marriage was legal in the 50th state to join the Union.

Hawaii now joins 14 other states to legalize same-sex marriage.  Just last month, it was the New Jersey Supreme Court adding their state, at least temporarily, to the growing list of states recognizing gay nuptials.  Illinois will become the 16th state later this month at a ceremony where the now-passed legislation will be formally signed by the Governor.

In the case of Hawaii, their Supreme Court ruled back in 1993 that a guarantee of legal equality could eventually lead to legalized gay marriage.  Largely due to the manner in which that High Court's ruling came down, it never developed any legal traction and was effectively overruled in 1998 by that state's voter initiative amending their state constitution to restrict legal marriage to opposite-gender couples.

Many of our readers will recognize this Pacific constitutional amendment as the precursor to the federal Defense of Marriage Act [DOMA]  -marriage is legal as only between a man and a woman-  recently struck down by the SCOTUS.  Legal scholars have suggested that DOMA was a federal legislative reaction to the surprising initial same-sex decision by the Hawaiian Supreme Court; the first such ruling in the coutry.

Like racial equality and gender equity, this ground is not easily gained.  There is nothing like a civil rights struggle to demonstrate the evolution of our federalist system of government.

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Like neighboring Iowa, Illinois just passed a same-sex civil union law; the 6th state in the union (plus D.C.) to do so.  This law will likely be tested in court, as in other states passing such progressive legislation.

Like the same-sex marriage law floated in California, civil union statutes, once passed, usually have a rocky road.  In Maine like in California, for example, the same sex union become law via referendum, only to be subsequently invalidated by a court.

Invariably, there is a political price attached to this legislation.  No surprise, given such a polarizing issue that scholars have long-heralded as the next civil rights struggle in the USA.

Recently in Iowa, Lambda Legal sponsored litigation on behalf of gay couples, asserting that denying a marriage license on a same-sex basis violated the liberty and equal protection interests of the state constitution.  In April 2009, the Iowa Supreme Court ruled in favor of the same-sex couples; three of these justices were voted-off the court in the election last fall.  [Here's a powerful Iowan's clear view on the topic.]

A civil union is an intermediate legislative step toward the institutionalization of same-sex marriage.  In addition to the 6 states recognizing civil unions, another four states endorse "domestic partnerships", which provide broad rights for same-sex partners, but do not formalize the union.  Many gay couples do not avail themselves of such status, rejecting the compromise.

On the other hand, same-sex legislation has been rejected in more than 30 states. Some states, like Michigan, have amended their constitution to expressly limit the scope of marriage to the union of a man and woman.

Same-sex couples have long-sought benefits and rights enjoyed by conventional married couples such as health insurance coverage, tax breaks, even hospital visitation.  Like they did in Iowa, gay advocates often have the means to "put their money where their mouth is" in the form of expert lobby campaigns.

In the nearly two decades since the issue was first litigated in Hawaii, the same-sex movement has taken on religious as well as political tones. Nationally, the issue remains far too close to call.

As our common law tapestry continues to evolve, only time will tell whether this issue will achieve civil rights recognition and eventual institutionalization.

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