As the July 6 veto deadline approaches, Gov. Linda Lingle must consider whether or not to sign HB444 into law. She is under pressure from both sides of the issue. On the one hand, proponents argue that the law must be updated to correct a long-standing injustice and to recognize the fact that sometimes couples form unions outside of holy matrimony. On the other side, opponents of civil unions argue that the law’s impact on society at large is unacceptable. These opponents seek to create doubt and uncertainty about the law’s impact.

Gov. Lingle herself has promoted the uncertainty, by claiming that what makes her decision difficult “is the intensity on the part of the public, that I don’t know another bill that comes to that, its ability to impact the community on both sides.” When asked, however, these opponents have a hard time articulating what those negative impacts might be.

Gov. Linda Lingle at a press conference, 2010.

Civil Beat

To examine these claims, let’s first recall that in the United States, religious institutions and their precepts do not have the force of law. Breaking a religious vow, for example, doesn’t land you in prison. Being excommunicated doesn’t mean your driver’s license is revoked. And so on. At the same time, the law protects the rights of religious groups to practice their beliefs. This principle of
separation of church and state is a bedrock principle of American democracy and is something we should all be proud of. So how does this apply to marriage?

If you’ve never been married, it may surprise you to learn that most people who marry in this country are actually “married” twice. First, they are married in the eyes of the law. And second, they are married in the eyes of their church. The word “marriage” is used to refer to both of these vows, which often causes confusion. One is a legally-binding commitment under the laws of the state. The other is a morally-binding commitment under the precepts of their religious beliefs.

Needless to say, the state has sole authority over the legally-binding union, and no authority over the religious union. And, the church has authority over the religious union, but no authority over the legal union.

All sorts of things can go wrong in a marriage, and the law provides for legal ways to handle divorce, property rights, parental obligations, etc. Family courts exist to arbitrate and judge the disputes that inevitably arise. For better or worse, family law has been arbitrating marriage disputes for a long time, and there is a large body of law and judicial decisions to rely upon.

Now, back to HB 444.

In order to keep things simple, the bill states that existing law which applies to couples who are in a licensed marriage will apply to couples who elect to enter a civil union. In practice, the same office which issues marriage licenses will probably issue civil union licenses. If a union sours, existing laws are there to handle all the various consequences, and the same courts will have jurisdiction.

At the same time, the bill makes it clear that no religious institution will be required to do anything differently than it currently does. Some churches have strict rules about who can and cannot take the vows of holy matrimony, and those rules will not be affected. Any attempt of the law to affect a person’s religious practice would run afoul of the U.S. Constitution.

So let’s take a step back and examine once again the negative consequences that civil unions might have under the law. If a union never runs into any trouble, the law will not be involved beyond issuing the initial license. If, on the other hand, it does run into trouble, marriage law has already explored much of what can go wrong. In fact, a large part of marriage law is preoccupied with what to do about children of the marriage, which is probably less likely to be relevant in the case of civil unions. Family lawyers will tell you that a childless marriage is typically easier to dissolve than one with children.

Opponents who make the claim that there are too many unanswered questions about the legal implications of HB 444 are seeking to cast uncertainty into the process out of a misguided application of their religious beliefs into civil law. Because they are unable to articulate a sound legal and civil rationale for opposing the bill, they resort to the tactic of obfuscation and uncertainty.

The fact is, if HB444 becomes law, we are unlikely ever to hear or think about it again, unless we or someone we know chooses to enter into a civil union. Its impact beyond the unions it recognizes will be minimal. Despite plenty of opportunity, no opponent has stepped forward to demonstrate otherwise.

Gov. Lingle should stand up for the state, recognizing that all its citizens have the right to be recognized under the law, and should sign HB 444 into law.