In the mid-and late-1990's and early 2000's, however, in response to a 1993 decision of the Hawaii Supreme Court that raised the possibility that the courts of that state might conclude that the Hawaii statute limiting marriage to opposite-sex couples violated the provisions of the Hawaii Constitution and that same-sex couples lawfully could marry in Hawaii

The Baehr Court further recognized "sex" as a suspect category for purposes of Equal Protection analysis under the Equal Protection Clause of the Hawaii Constitution, mandating satisfaction of strict scrutiny analysis, the most rigorous form of constitutional inquiry, in order to withstand challenge to its constitutionality under the Hawaii Constitution.

—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 …

In 1993, the Hawaii Supreme Court held that it might violate the Hawaii constitution to deny marriage licenses to same-sex couples.

—the Hawaii Supreme Court held that a state statute which it interpreted as barring same-sex marriages violated the equal protection clause of the Hawaii State Constitution (which expressly prohibited sex discrimination), unless the marriage bar was necessary to a compelling state interest.

—holding that sex-based marriage classification is subject to strict scrutiny under the Hawaii Constitution

For this reason, in reviewing a circuit court's order dismissing a complaint... our consideration is strictly limited to the allegations of the complaint, and we must deem those allegations to be true.

—of Hawaii invalidated that state' s same-sex marriage prohibition because the law classified people based on gender.

In the first case resolved in favor of same-sex couples seeking to marry, the court adopted this theory, even though the plaintiffs had not argued it initially.

A few courts have held that laws against same-sex marriage are unconstitutional regardless of the scrutiny level