In the same-sex marriage case of Baehr v. Lewin, the Hawai'i Supreme Court, relying upon modem American constitutional jurisprudence, determined that the right to privacy does not extend to same-sex marriage, which I will hereafter refer to as "homogamy." In an analysis of state equal protection law, however, the court held that the state cannot withhold marriage licenses from homogamous couples absent the showing of a compelling state interest in doing so. While I agree with the equal-protection result in Baehr, I disagree with the privacy result. I believe that the values of traditional Hawaiian culture provide a basis for a determination that a right to privacy exists which protects homogamy, as well as many other values related to same-sex relationships.
I will define and explore what I mean by "the values of traditional Hawaiian culture" by discussing a section of footnote in the 1986 United States Supreme Court case Bowers v. Hardwick, in which the Court held that there is no fundamental federal constitutional right to commit homosexual sodomy. The Court supported its holding by appealing to what it called the "ancient roots" of anti-sodomy traditions. In footnote 6, the Court assembled a laundry list of "states" in which anti-sodomy laws were in effect as of 1868 - the year of ratification of the Fourteenth Amendment. As part of that laundry list, the Court cited the 1869 Hawai'i Penal Code.
This attempt to use Hawai'i law was not appropriate for several reasons, the most important of which was that it ignored a set of Hawaiian statutory and constitutional provisions which I term the "Hawaiiana Clauses," which require the state to recognize Hawaiian custom, usage, language, and tradition. The roots and mandates of this tradition date to a period before the invention of "homosexual" as a category of persons in the late nineteenth century, and do not derive their authority or lineage from Greek, Roman, Judeo-Christian, or European norms, or Puritan ethics. The nations from which those norms and ethics came were not a geographical, juridical, or political part of the United States, while Hawai'i is."
Robert J. Morris (Kapa'ihiahilina),
Configuring the Bo(u)nds of Marriage: The Implications of Hawaiian Culture & Values for the Debate About Homogamy,
Yale J.L. & Human.
Available at: https://digitalcommons.law.yale.edu/yjlh/vol8/iss1/6