Civil unions were approved by the Hawaii Legislature in February 2011 and signed into law by Hawaii Gov. Neil Abercrombie on Feb. 23 of that year. The law, which took effect on Jan. 1, 2012, grants same-sex couples the same rights as married couples.
In 1998, Hawaii voters approved a constitutional amendment giving legislators the authority to define marriage as exclusively between a man and a woman. Civil unions are a legal partnership, open to both same-sex and heterosexual couples, and no religious institution or leader is required to perform or recognize them. But civil unions, domestic partnerships and same-sex marriages performed in other states would be recognized as civil unions in Hawaii.
Hawaii’s civil unions law withstood a last-minute attempt to get a temporary restraining order to prevent it from going into effect, and on Jan. 1, 2012, at a ceremony in east Honolulu four same-sex couples entered into civil unions at a ceremony where a proclamation saluting the day from Abercrombie and Lt. Gov. Brian Schatz was read.
While Hawaii’s civil unions law grants same-sex couples nearly all the same rights and benefits as marriage, six state governments now offer full rights and benefits through same-sex marriage.
The sixth state to do so — New York — is also the largest, and there is a sense nationally that that public mood on gay rights is shifting. In September 2011, for example, the U.S. military ended its “Don’t Ask, Don’t Tell” policy that forbid gays and lesbians to serve openly.
Some supporters who fight for civil unions in Hawaii now say they will push for full marriage rights, though elected officials like Gov. Neil Abercrombie have cautioned that the state first needs to implement civil unions.
The debate over civil unions in Hawaii was part of a larger national discussion of gay rights and same-sex marriage.
Delaware, Hawaii, Illinois, New Jersey and Rhode Island have civil unions. In Connecticut, Vermont and New Hampshire, same-sex marriage has replaced civil unions.
Here’s a good website to follow the status of state policies on civil unions and same sex marriage.
Forty-one states including Hawaii have statutes defining marriage as between one man and one woman, although the supreme courts in two of those states — Connecticut and Iowa — invalidated those statutes in 2008 and 2009, respectively. Three other states on that list of 41 also either issue marriage licenses to same-sex couples (Vermont and New Hampshire) or provide domestic partnerships (Washington).
Nine countries, including Canada, Sweden and Spain, also permit same-sex marriage. Nineteen other countries, including the United Kingdom, France, Germany and New Zealand, recognize civil unions or registered partnerships.
Hawaii was among the first significant U.S. battlegrounds in the fight over gay marriage. According to the American Bar Association, “states have been grappling with the issue of protections for same-sex couples since at least the 1970’s.” The first successful challenge to the rejection by states of same-sex marriage occurred here, in 1993, when the Hawaii Supreme Court ruled that denying same-sex couples the right to marry may be unlawful sex discrimination under the state constitution. The court ordered a new trial in a case where a lawsuit by same-sex couples wanting to marry had been dismissed. After a trial, then Circuit Court Judge Kevin Chang in 1996 ruled against the state, and in favor of the right of the couples to marry. But that decision was made moot when voters in 1998 approved a constitutional amendment allowing the Legislature to limit marriage to different-sex couples.
The case, known as Baehr v. Lewin, started in 1990, when three same-sex couples filed for marriage licenses and were rejected. They sued the state unsuccessfully, but were able to get the Hawaii Supreme Court to consider the matter. The 1993 Supreme Court ruling was a partial victory for same-sex marriage advocates. The court did not throw out the ban against same-sex marriage. But it did rule that the state would have to prove a compelling state interest supporting such a ban. The nation’s most prominent legal organization for gay and lesbian issues, LAMBDA, describes the court’s ruling as “launching the freedom to marry movement.”
In 1996, the same year the Hawaii case went to trial, the U.S. Congress passed the Defense of Marriage Act. That act established that marriage, for the federal government, is defined as being between a man and a woman. And it gave states the authority to reject recognizing marriages from other states.
The Hawaii case was significant beyond the state’s borders in part because if Hawaii recognized same-sex marriages, the unions would have had to be recognized by other states as well. The Full Faith and Credit Clause, found in Article IV, Section 1, of the U.S. Constitution, says: “Full Faith and Credit shall be given in each state to the public Acts, Records and judicial Proceedings of every other state.” This meant that without the Defense of Marriage Act, if same-sex marriages were legal in Hawaii, such marriages from Hawaii would be entitled to recognition in other states, too.
After the trial in the Baehr case in Honolulu, Judge Kevin Chang, wrote in his 1996 decision rejecting the state’s argument against same-sex marriage: “Defendant has failed to present sufficient credible evidence which demonstrates that the public interest in the well-being of children and families, or the optimal development of children would be adversely affected by same-sex marriage. Nor has Defendant demonstrated how same-sex marriage would adversely affect the public fisc, the state interest in assuring recognition of Hawaii marriages in other states, the institution of traditional marriage, or any other important public or governmental interest.”
The very next year, in 1997, the Hawaii Legislature created something called “reciciprocal beneficiary relationships. The purpose of the status is “is to extend certain rights and benefits which are presently available only to married couples to couples composed of two individuals who are legally prohibited from marrying under state law.”
These relationships are outlined in Hawaii Revised Statutes 572 C. “The legislature believes that certain rights and benefits presently available only to married couples should be made available to couples comprised of two individuals who are legally prohibited from marrying one another,” reads the statute. This means that the law applies to same-sex couples, heterosexual couples or friends, and relatives who decide to register for this status.
Among the benefits for couples who enter into such relationships: inheritance without a will, ability to sue for the wrongful death of their reciprocal beneficiary, hospital visitation and health care decisions, consent to postmortem exams, loan eligibility, property rights (including joint tenancy), tort liability and protection under Hawaii domestic violence laws.
In 1998, Hawaii voters approved a constitutional amendment giving the Legislature the power “to reserve marriage to opposite-sex couples.” The amendment passed with 69 percent of the vote. The Supreme Court of the state in 1999 then ruled that the state was within its right, based on the state constitutional amendment, to ban same-sex marriages.
The issue of civil unions surfaced over the years since 1999, but it was only in 2010 that both chambers of the Legislature approved such a bill and sent it to the governor.
The vote in Hawaii comes after high-profile legal arguments earlier in 2010 before a federal District Court in California that could impact same-sex marriage bans nationally. Known as Perry V. Schwarzenegger, the case challenges California’s voter-approved ban on gay marriage and is widely expected to land in the U.S. Supreme Court. In May, 2008, the California Supreme Court ruled that same sex couples have the right to marry in the state. For a brief period, the state had such marriages, but voters later that year approved Proposition 8, which limits marriage to one man and one woman.
Bill Revived in 2010 Legislature
The Hawaii House of Representatives on the last day of the 2010 session approved a Civil Unions bill. The bill had already been approved by the Senate earlier in the session.
The bill’s history in the 2010 session is tracked here. The state Senate passed the bill on January 22 by an 18-7 vote.
Voting against were the two Republicans in the chamber: Sens. Sam Slom and Fred Hemmings. Also opposed were five Democrats: Sens. Robert Bunda, Will Espero, Mike Gabbard, Donna Kim and Norman Sakamoto.
Voting yes were Rosalyn Baker, Suzanne Chun Oakland, J. Kalani English, Carol Fukunaga, Brickwood Galuteria, Josh Green, Colleen Hanabusa, Clayton Hee, Gary Hooser, David Y. Ige, Les Ihara, Michelle Kidani, Russell Kokubun, Clarence Nishihara, Dwight Y. Takamine, Brian T. Taniguchi, Jill N. Tokuda, Shan S. Tsutsui.
The bill was postponed indefinitely by the House at the end of that month. But it was resurrected on the last day of the session and approved by a 31-20 vote.
Voting no were 16 Democrats and 4 Republicans. The no votes came from Democratic Reps. Henry Aquino, Karen Awana, Jerry Chang, Isaac Choy, Cindy Evans, Sharon Har, Ken Ito, Michael Magaoay, Joey Manahan, John Mizuno, Roland Sagum, Joe Souki, K. Mark Takai, James Tokioka, Clift Tsuji and Ryan Yamane. Also voting no were Republican Sens. Corinne Ching, Lynn Finnegan, Kimberly Pine and Gene Ward.
Voting yes were 29 Democrats and 2 Republicans. The Democrats were Della Au Belatti, Lyla Berg, Joe Bertram, Tom Brower, Rida Cabanilla, Mele Carroll, Pono Chong, Denny Coffman, Faye Hanohano, Bob Herkes, Jon Riki Karamatsu, Gil Keith-Agaran, Chris Lee, Marily Lee, Sylvia Luke, Angus McKelvey, Hermina Morita, Mark Nakashima, Scott Nishimoto, Blake Oshiro, Marcus Oshiro, Karl Rhoads, Scott Saiki, Calvin Say, Maile Shimabukuro, Roy Takumi, Glenn Wakai, Jessica Wooley and Kyle Yamashita. Republicans who supported the bill were Barbara Marumoto and Cynthia Thielen.
The 2010 Legislative session saw a civil unions bill passed by the Legislature. It was vetoed by former Gov. Linda Lingle. She announced her veto in a highly anticipated mid-afternoon news conference that was televised from her offices. Invited guests included Steven Levinson, the retired Hawaii Supreme Court justice whose 1993 opinion marked the beginning of the state’s debate on gay rights.
In explaining her decision to veto the bill, the governor called House Bill 444 “essentially marriage by another name” and said the process by which it was approved was flawed. Lingle wanted the public to settle the emotional issue of civil unions at the ballot box, saying the issue was of “such societal importance that it deserves to be decided by all the people of Hawaii.”
Then in 2011, the Legislature quickly passed Senate Bill 232, which Abercrombie signed into law.