The Flint Hills Observer
January 1997

More on the Hawaii Same-Sex Civil Marriage Case
by Deb Taylor, and internet reports

In 1991, one gay and two lesbian couples jointly filed a lawsuit alleging that the denial of marriage licenses by the state Department of Health (in late 1990) was unconstitutional; eventually, the case was appealed to the Hawaii Supreme Court.

In 1993, the state Supreme Court ruled that, under Hawaii's Constitution, (the Hawaii constitution forbids sex discrimination, the so-called Equal Rights Amendment that failed to become part of the federal constitution over ten years ago) allowing civil marriage licenses only for opposite-sex couples and not for same-sex couples is sex discrimination. The court ordered the state to show what "compelling" interest justifies such discrimination in civil marriage.

THE DECISION: The state tried to show that same-sex marriage should not be allowed for the following reasons: children are better off being raised in a single home by their parents, or at least by a married male and female; same-sex marriage would place a financial burden on Hawaii from same-sex couples who wanted the same benefits as opposite-sex married couples; and Hawaii citizens would be harmed because of the refusal of other states to recognize Hawaii's same-sex marriages. Below is a summary of Judge Chang’s decision:

On Raising Children:

1) The State did not prove its major contention that, all things being equal, a child is best raised by his/her biological parents or a married man and woman.

2) Nor did the state prove that same-sex marriages would adversely affect the development of children.

3) Rather, the most important factor for child development is the nurturing relationship between a parent and a child.

4) Sexual orientation of parents is not an indication of parental fitness.

5) Gays and lesbians, as well as opposite sex couples, can be fit and loving parents.

On The State's Compelling Interest:

1) The state also failed to prove its two other points: that same-sex marriage would harm state financial resources and that its citizens would be harmed because of the refusal of other states to recognize Hawaii's same-sex marriages.

2) Because the state cannot provide a "compelling state interest" to justify the ban on same-sex marriages, the prohibition violates the equal protection clause of the state Constitution.

3) The state Department of Health cannot deny a marriage application simply because applicants are of the same sex.

THE BACKLASH: The case has sparked national interest because marriages performed in one state are typically recognized by the other 49, or have been since the U.S. Supreme Court struck down miscegenation laws in 1967. During the previous state legislative session, bills barring same-sex marriages were introduced in some 35 states. To date, 20 states rejected the anti-gay marriages bills, while 15 states passed such measures.

Congress and the President also entered the fray during the 104th term, approving the so-called "Defense of Marriage Act" (DOMA), designed to exclude lesbian and gay couples under federal programs and allow states to deny recognition of same-sex marriages performed in other states. The ACLU, which says the law is unconstitutional, has vowed to ultimately challenge it in court.

Evan Wolfson, Lambda Marriage Project Director, noted that DOMA does not ban marriages for gay couples but would discriminate against legally married gay couples by allowing federal protections and benefits only for heterosexual married couples. Wolfson said, "The absurdly named Defense of Marriage Act, like the 16 state bills passed against equal marriage rights for lesbians and gay men, is unconstitutional and will be defeated. State by state, court by court, we will put an end to this illogical and cruel discrimination."

THE FUTURE: Perhaps the most interesting question at this point is "What happens next?" While many Hawaiians prefer to see the case settled by the Hawaii Supreme Court, others prefer to see the Hawaii State Legislature intervene. In the former, the appeal of Judge Kevin Chang's ruling could be decided by the Hawaii Supreme Court in late 1997 or early 1988. Most agree that the Supreme Court will rule in favor of Judge Chang’s decision.

In the latter, Hawaii’s Legislation has many possibilities when it reconvenes this month. Its options include:

1) Proposing a constitutional amendment restricting marriage to a man and a woman.

2) Scheduling a special election to allow the Constitutional Convention (ConCon) to deal with the issue in 1998. (The issue of ConCon is currently heated as Hawaii determines the validity in the manner in which the votes on the ConCon were tallied during November 96 elections. It appears that the ConCon did not pass as the words in the state constitution are "majority of the ballots cast" and not "a majority of the votes tallied" as interpreted by Hawaii Attorney General Margery Bronster. "Ballots cast" has an entirely opposite effect on the outcome of the vote, as 163,000+ favored a ConCon, 160,000+ opposes one, but there were 45,000 blank votes which also figure into the equation. Under the expected ruling, 163,000 votes only constitutes 44% of the ballots cast. The validity of the vote has been challenged by the AFL-CIO, who has filed a lawsuit.)

3) Doing nothing and risking the voter disdain that forced several incumbent lawmakers out of office this fall for failure to act on key issues, including same-sex marriage.

House Speaker Joe Souki says lawmakers should heed the warning: "It is imperative that the Legislature provide legislation for a constitutional amendment to ban same-sex marriage in the state of Hawaii." Public opinion polls found roughly seven out of every ten Hawaii voters favor such a ban.

Still, lawmakers have wrestled with this issue for three legislative sessions now, and are reluctant to continue the battle in the legislature. As Senator Matsunaga noted, the highest authority in this matter is the Hawaii Supreme court.

Certainly, the eyes of 49 other states will be closely watching the Hawaii case. At issue is whether or not states will recognize same-sex marriages from Hawaii. On a bright note, Massachusetts Governor William F. Weld declared on December 4, 1996 that if a Hawaiian law recognizing gay marriages is upheld by that state's supreme court, Massachusetts will be forced to recognize those bonds as legal and to endow the newlyweds with ''all the benefits and burdens of marriage.''

Not all governors will be so insightful.

READ IT FOR YOURSELF: Many web sites include information on Hawaii’s same-sex civil marriage case. A particularly comprehensive one is the Partners Task Force for Gay & Lesbian Couples.  Other sites include: Freedom to Marry Coalition; Forum on the Right to Marriage (FORM); and The Equal Marriage Rights Home Page.

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