Competitive Federalism and Legislative Incentives to Recognize Same-Sex Marriage in the USA
JENNIFER GERARDA BROWN*
In Baehr v. Lewin, 1993, the Supreme Court of Hawaii held that Hawaii's marriage statute discriminates on the basis of gender and may therefore violate the state constitution's equal protection clause. The statute allows marriage only between a man and a woman; same-sex couples are excluded.1 The trial court in Baehr ( 1993: 68) must now decide whether the law serves a compelling state interest. Some predict that the state will be unable to justify the law and that Hawaii will become the first state to solemnize marriages between people of the same sex.
Same-sex marriage clearly raises serious questions about discrimination, tradition, and morality. But economic concerns are also at stake. Because certain states could reap substantial economic benefits by being the first to solemnize same-sex marriage, the debates about the issue to date have been incomplete. While Baehr and cases like it permit state courts to legalize same-sex marriage on constitutional grounds, the thesis of this chapter is that certain states might have an independent rent incentive to be the first to legalize same-sex marriage. The first state to solemnize same-sex marriages could draw visitors from every state in the union, and the present value of increased tourism revenue could exceed $4 billion. This estimate is based on conservative assumptions about (a) the number of same-sex couples who would travel to a first-mover state for weddings and honeymoons, and (b) the spending that the average wedding would generate.
This increased tourism revenue could in turn redound to the benefit of all the state's citizens. Tourism does not just increase retail spending in a state. It also creates jobs, increases the average household income, and benefits the state directly through taxes and license fees. Hawaii's Department of____________________