Circuit Judge Kevin Chang this morning agreed to let the state delay his order to issue marriage licenses to such couples, effectively postponing the licenses for at least a year.
Chang, who yesterday ruled that the state failed to show any compelling reason to ban same-sex marriages, said allowing them could moot the state's appeal of his ruling.
"If couples were allowed to marry and the decision were reversed, the (state) would be left without a remedy," he said this morning.
Dan Foley, attorney for the three couples who sued for the right to marry, said he may appeal the delay to the state Supreme Court.
He said Chang didn't follow the legal standard for his ruling and may have abused his discretion.
Foley said the state would not likely prevail on the appeal and didn't show irreparable harm to the state if it didn't get a delay. By contrast, he said his clients would be further deprived of their constitutional rights.
Deputy Attorney General Rich Eichor said he would continue to argue to the state Supreme Court that the marriage law> was valid, but also said his chances of winning were slim.
"I didn't feel good yesterday and I don't feel a lot better today," Eichor said of the rulings.
Eichor had argued that thousands of couples could marry by the time the justices review the appeal. He also said if the state convinced the court to reverse its decision, the court would have to nullify those marriages.
"I'd rather have my rights for one or two years than not at all," Foley said on behalf of the couples.
The couples sued the state in 1991 for the right to marry and won their first battle in 1993, when the state Supreme Court identified sex discrimination in the marriage law.
Eichor yesterday instructed the state Health Department to deny licenses to same-sex couples, saying the state didn't have to comply with Chang's order until he issued a final judgment.
Chang yesterday ruled that the state failed to show a compelling reason to justify the sex discrimination in the state's marriage law, violating the equal protection clause of the state Constitution.
He also ordered the state to pay the couples' court costs, estimated at about $50,000.
Foley described Chang as "courageous" and said his opinion was the first to find that a government could not show a compelling reason to discriminate against same-
sex couples in marriage.
"He just found his place in history," he said.
Foley predicted Chang's opinion would be as significant in ending same-sex discrimination as Brown vs. the Board of Education was in ending racial segregation.
Evan Wolfson, a New York attorney who was Foley's co-counsel, likened Chang's ruling to Loving vs. Virginia.
"Thirty years ago it took courts with courage to tear down racial discrimination in marriage," he said. "In that tradition, Judge Chang struck a blow against sex discrimination. Hawaii should be proud."
But members of groups who oppose same-sex marriage faulted Chang, saying he made a mistake.
The Rev. Marc Alexander, with Hawaii Catholic Conference and Hawaii's Future Today, said Chang "exalted a concept of individual rights and used it as a weapon against the common good."
He and Debi Hartmann, also with Hawaii's Future Today, said they would urge the state Legislature to approve a constitutional amendment to limit marriage to a man and a woman.
Alexander said they would target the Senate, which has supported domestic partnerships, but opposed an amendment.
They also said if lawmakers didn't approve an amendment, they would seek one through a Constitutional Convention.
Foley said a constitutional amendment could not get before voters until the next general election in 1998, which could be after the Supreme Court rules on the state's appeal.
He also said three of the court's five justices supported the 1993 decision identifying sex discrimination and would rule on the upcoming appeal.
They are: Associate Justice Steven H. Levinson, who wrote the opinion; Chief Justice Ronald Moon; and Associate Justice Paula Nakayama.
Eichor, who said the state spent less than $100,000 since April on the case, said he would continue to argue in his appeal that children have a fundamental right to be raised by their biological parents.
He also said he would renew the argument that the marriage law doesn't discriminate on the basis of sex, challenging the 1993 ruling.
"I'm not going to assume that the court will maintain its posture," he said. "It's not unusual for courts to reverse themselves."
Wolfson, who also directs the national marriage project for the Lambda Legal Defense and Education Fund, Inc., said the decision offers ammunition to fight for same-sex marriage on the mainland.
He also said an organized backlash already has occurred against same-sex marriage, including the federal Defense of Marriage Act. The act, passed in anticipation that Hawaii would legalize same-sex marriage, would deny federal benefits to same-sex couples.
"First we will win the freedom to marry and then we will fight discrimination in our marriages," he said.
In his 46-page opinion, Chang said the state failed to present credible evidence to show that same-sex marriage would adversely affect the well-being of children.
He also said the state failed to show how same-sex marriage would adversely affect the public fisc, the recognition of Hawaii marriages in other states, the institution of traditional marriage or any other important governmental interest.
Chang affirmed the role of same-sex couples as parents, finding evidence from both sides that the children they raise fare as well as those raised by opposite-sex couples.