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If Hawaii’s civil unions bill becomes law, it will give same-sex and heterosexual partners benefits, spousal liabilities and responsibilities that rival those of marriage.
On that point, both opponents and proponents agree.
But what about the impact on people and groups outside of a civil union? How will state and county government, businesses, schools, and other organizations be impacted?
Critics of House Bill 444 warn that civil unions is a slippery slope that will force undue burden on businesses — mainly through increased insurance costs — influence classroom instruction, foster lawsuits, and open the door to same-sex marriage.
Scholars, lawyers and gay-rights advocates familiar with the record of civil unions, domestic partnerships and same-sex marriages in other states, however, say things will play out more benignly, especially given Hawaii’s status as a leader in health insurance coverage. In fact, they say the state could see potential economic gains from ceremonies and tourism.
Some businesses will feel a pressure to extend benefits to civil union partners that married employees enjoy, said Brad Sears, executive director of the Charles R. Williams Institute on Sexual Orientation Law and Public Policy at the UCLA School of Law. The law, he says, boils down to treating civil unions the same as marriage.
“In terms of private parties, marriage is about two things — benefits, and obligations,” said Sears. “For example, a spouse can qualify for similar treatment, like with employment benefits and hospital visitation rights. With private employment, I think it just increases the potential for couples to get health insurance through their employer — to treat each partner the same. Most civil unions do not impose this as an absolute requirement, but there is definitely an increased pressure. There is a nondiscrimination provision in most bills that is the same as discrimination on marital basis.”
Alan Spector, legislative affairs co-chairman for Equality Hawaii, the main advocacy group for civil unions in Hawaii, said that federal law does not require recognition of civil unions. Nor would private pensions in Hawaii be affected, because the state is exempt from the Employee Retirement Income Security Act that sets minimum standards for private pension plans.
And, because of the Hawaii Prepaid Health Care Act — the 1975 law that requires businesses to offer health insurance to employees who work more than 20 hours a week — businesses are already required to insure workers.
Health insurance not big issue in Hawaii
“This bill will not impact the state and counties at all, though it could impact private insurers that may start providing health benefits to civil union partners,” said Spector. “But Hawaii already has the lowest number of uninsured people in America.”
As well, Rep. Blake Oshiro, an attorney and co-introducer of HB 444, said lawmakers understood that the state provides benefits for same-sex couples through the Employer-Union Health Benefits Trust Fund.
Health-care costs for gay couples can be significant.
The New York Times reports that most large employers do not provide coverage for same-sex partners, which can force one partner to seek expensive private coverage. The Times estimated a gay couple’s lifetime cost could range from a best-case scenario of $41,000 to a worst-case scenario of almost half a million dollars.
Although civil unions is about civil rights, it does not rise to the level of historic protections enacted at the federal level that have had a social impact on the majority — racial integration of classrooms and accommodating the disabled, for example.
HB 444 makes clear, for example, that clergy opposed to the unions will not be required to perform them or subject to punishment for refusing to do so. The language that raises questions is the following:
“Partners to a civil union lawfully entered into pursuant to this chapter shall have all the same rights, benefits, protections, and responsibilities under law, whether derived from statutes, administrative rules, court decisions, the common law, or any other source of civil law, as are granted to spouses in a marriage validly entered into pursuant to chapter 572.”
Opponents fear civil unions may result in as yet unforeseen consequences.
“I don’t think it’s real catastrophic,” said Dennis Arakaki, executive director of Hawaii Family Forum and the Hawaii Catholic Conference, the most prominent critic of civil unions, in response to a question about the legal impacts of civil unions. “I think it is just a matter of unknowns.
“Whenever we have a sweeping law like that, we might promote or invite legal challenges. For example, we have reciprocal beneficiaries, and it covers same-sex couples in long-term relations. Now there is going to be a group left out of civil unions, people who don’t qualify, like two unmarried sisters or a mother and son. You would be discriminating against a certain group of people.”
Arakaki continued: “It troubles me that some people have portrayed this as a battle between gays and Christians, but it is not. It is standing up for traditional marriage between one man and one woman, something that society has associated with marriage for thousands of years. We accept gay people in society, but we still have to stand up for values we believe in and what’s best for families.”
Bill won’t directly impact religions
Jenny Pizer, senior council and marriage project director for the western regional office of Lambda Legal, takes issue with such arguments. Lambda Legal works for the civil rights of gays, lesbians, and people with HIV or AIDS.
“The nuts and bolts of law are sometimes overshadowed by ideology, but this is really about a civil union that involves application of civil law,” said Pizer. “It has nothing to do with religion.”
Civil unions do have a lot to do with families, however.
Pizer said a civil unions law means partners would have the same recourse that married couples have for settling dissolution of their relationship in family courts. Absent such law, current statutes are vague on how same-sex couples would deal with finances, property, custody of children, and other issues that come up when a relationship ends.
As for fears that partners in reciprocal beneficiary relationships may feel discriminated against should civil unions become law, a 2008 Williams Institute study found that the nearly 1,500 couples who registered in Hawaii between 1997 and 2008 came from same-sex couples. If civil unions becomes law here, UCLA’s Sears said research shows many same-sex couples will register rather than settle for the limited protections afforded by reciprocal beneficiaries.
Arakaki has other worries. He said Massachusetts, which allows same-sex marriage, has had legal challenges over school curriculum calling for teaching alternatives to heterosexual marriage in classrooms. He is concerned as well that civil unions will lead to same-sex marriage, as happened in Connecticut.
State Sen. Mike Gabbard, a Democrat who voted against HB 444, said civil unions impact on schools is a top concern. He pointed to the same Massachusetts case as Arakaki that ended up in the U.S. Court of Appeals for the 1st Circuit.
“I’ve been saying since day one that one of the major impacts will be what happens in our schools,” said Gabbard, who led the fight to amend the Hawaii Constitution in 1998 to allow legislators the authority to define marriage as between a man and a woman. “Parker v. Hurley basically says schools don’t have to inform parents in advance when books like ‘Heather has Two Mommies’ are being discussed. Taxpayer dollars are being used to fund schools, and there are folks out there that don’t want that taught. We are not bashing gays, but that’s going against my values.” (Schools in Hawaii don’t have a required curriculum.)
Impact on marriage not seen
Tony Wagner, western regional field director for Human Rights Campaign — the largest civil rights group involved in advocacy, education, lobbying and outreach for lesbian, gay, bisexual and transgender equality — acknowledges there have been legal issues raised in some states.
“But even in Massachusetts, where same-sex marriage has been legal since 2004, it hasn’t really changed the institution of marriage,” said Wagner. “Hawaii is also its own unique place that has its own culture. The opposition may say civil unions is an affront to marriage and values, but we maintain that it is nothing more than a civil rights bill that provides equal protections.”
State House Rep. John Mizuno, a Democrat, also voted against HB 444, in part because he is also worried about the potential financial costs of civil unions.
“We have thousands and thousands of people working for the state and the city and county for that matter. What happens now is, if I can put my girlfriend on — now that we’re in a civil union relationship — I can get her on my health plan. More cost,” Mizuno told Civil Beat. “How much more? We didn’t do the numbers.”
Concerns about costs exaggerated
But an economics professor at the University of Hawaii at Manoa says concerns about the costs of civil unions are exaggerated. Sumner LaCroix is the author of a 2009 study on the impact of civil unions on Hawaii’s economy and government.
“My take on it is that we are not talking about that many couples who are going to need health insurance,” said LaCroix, who estimates between 2,000 and 2,500 couples may seek civil unions. “Ninety percent of the people in Hawaii, give or take a few, already have health insurance, including all state employees. If you include people who are over 65 and have access to Medicare, and if you take away people who are disabled or HIV who are probably getting some type of Medicaid, we’re really talking about 250 people here. It’s hard to see how, except for maybe a small firm, how civil unions is gong to increase costs.”
LaCroix’s study forecasts that civil unions will in fact generate tax revenue for the state through licensing, ceremonies and tourism.
“We took a look at what other states had encountered, especially New Jersey, which had a task force that took a specific look at civil unions and what happened,” said Oshiro, the Democratic legislator who surprised colleagues by calling for a vote on the measure on the last day of the 2010 session. “Basically, the task force found that civil unions really helped or affected a lot of people’s lives and ended up doing a lot of good. It also left open the question as to whether the next step should be marriage — something that hasn’t happened in New Jersey yet.”
“The greatest impact is going to be for the folks that actually enter into the civil union, whether it’s a gay and lesbian couple or a straight couple,” said Human Rights Campaign’s Wagner. “We have seen the same arguments made in other states — that it’s going to be ‘the end of traditional marriage’ or have some tremendous impact. But from a national perspective we just haven’t seen that.”