How big of a deal is Gov. Linda Lingle‘s decision on Hawaii civil unions today?

Pretty big deal.

Consider these excerpts from an agenda sent last week to supporters of the Hawaii Family Forum, the leading moral and political opponent of House Bill 444:

“ASSEMBLE THE FAITHFUL! Let us gather as His people on July 6, at the State Capitol Rotunda beginning at 9:00 a.m. … Please remember to wear white with your iVOTE button … REMEMBER IN NOVEMBER!”

“Please ask your church and pastor to CALL FOR PRAYER for the sake of Hawaii’s families and to celebrate our nation’s birth with a commitment to PROTECT THE VALUE OF TRADITIONAL MARRIAGES AND FAMILIES.”

Consider as well the passion from proponents of the bill, including a coalition of civil-rights groups such as Equality Hawaii and the GLBT Caucus of the Democratic Party of Hawaii:

“We stand together today, united as one community for the benefit and well-being of all the people of Hawaii,” the coalition said in a June 28 statement. “Our calls to treat all people with the same dignity and respect were answered and today we’re proud to announce that half of the members of the Hawaii Business Roundtable have stood with us and against the senseless discrimination of same-sex couples. We urge Governor Lingle to do the right thing and sign civil unions into law and protect all the people who make our state the unique and diverse place that it is.”

The rhetoric is a sign that the civil unions debate is a significant chapter in not only Hawaii’s history, but the nation’s and beyond — a chapter that will not close regardless of what Lingle decides.

Civil Beat considers what’s at stake today.  

What HB 444 Would Do

If allowed to become law, civil unions would be the legal equivalent of marriage for couples in Hawaii but it would not confer federal marriage benefits or rights. Civil unions, domestic partnerships and same-sex marriages from other states would be recognized here as civil unions.

Civil unions are a legal partnership, open to both same-sex and opposite-sex couples. No religious institution or leader would be required to perform or recognize them.

The legal rights and benefits include allowing partners in civil unions to receive medical insurance through a government employee spouse’s health benefits plan, to file a joint state income tax return and to have a spouse receive protection from Family Court to dissolve civil unions and obtain orders to protect themselves, their children, and their assets.

Here are links to the full list of both benefits and spousal responsibilities and rights and obligations under existing law that would come with civil unions.

Who Would It Affect

Economists at the University of Hawaii at Manoa estimate that 2,292 Hawaii same-sex couples would register for a civil unions with the state between July 2010 and August 2016. That comes to about 380 couples a year. The study says the passage of civil union legislation “will be smooth and cost little,” and likely lead to increases in revenue from tourism, taxes and fees.

A study by the Williams Institute at UCLA reached similar conclusions, stating, “Civil unions will boost the economy through increased spending and jobs.” Additionally, “Businesses in Hawaii will be more productive and will not experience significant increases in costs.”  

However, some members of the Hawaii Business Roundtable say that HB 444 requires further study because of possible legal consequences that could come with the bill’s retroactive implementation to Jan. 1, 2010.

The Hawaii Employers Council has voiced a similar concern, stating, “because of its retroactivity, some Hawaii employers might be faced with interesting compliance decisions … employers may have to immediately recognize and apply HB 444 to civil unions or same-sex marriages lawfully entered into in other states or in foreign countries.”

Serious implementation problems have not occurred in other states that legally recognize same-sex couples, according to supporters of the bill and academic research on the subject.

The primary opposition to HB 444 is based on moral and religious arguments, as noted earlier by the Hawaii Family Forum. One concern is that civil unions would erode traditional marriage and negatively impact society. Some opponents fear that civil unions is a stepping stone to gay marriage, as happened in Connecticut, Vermont and New Hampshire.

In the governor’s June 21 announcement that HB 444 would be placed on her potential veto list, Lingle said she was weighing how the bill would impact both supporters and opponents of the bill.

In a June 30 inquiry, Civil Beat asked the governor’s spokesman how Lingle’s decision would impact opponents of the bill. Research by Civil Beat has found little or no impact on most people, other than those who enter into a civil union.

“By impact on others, she was referring to the overall impact on Hawaii,” the administration responded, adding that the governor “and her team are continuing to review the comments received from the public.”

Where Same-Sex Rights Are Recognized

As of July 2010, five states — Massachusetts, Connecticut, Iowa, Vermont and New Hampshire — and the District of Columbia have same-sex marriage, while five other states have either domestic partnerships (California, Oregon, Nevada and Washington) or civil unions (New Jersey). Three other states recognize same-sex marriage from other states.

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.

The Political Fallout

On Friday leaders of the Hawaii House of Representatives said they would not convene a special session to override any vetoes, including of HB 444, in part because they do not have the necessary two-thirds vote. It is also an election year, and many candidates for office likely do not want the contentious issue of where they stand on civil unions to haunt them in the campaign.

Yet, civil unions is sure to be an issue in the race for governor, lieutenant governor and some legislative districts, and perhaps others. At least one state House race and one state Senate race pit well-known candidates that hold opposite views on the issue.

Also involved are the future political aspirations of Gov. Lingle. HB 444 will be a potentially significant part of her legacy as governor. Forty years after Gov. John Burns let Hawaii’s abortion bill become law without his signature, his decision is still remembered and has been used to inform Lingle’s deliberation.

Gay marriage has been an issue nationally since 1993, the year the Hawaii Supreme Court ruled that laws prohibiting same-sex couples the right to marry violated equal protection rights unless the state could show a “compelling reason” for such discrimination.

Should civil unions fail to become law today, Lambda Legal and the American Civil Liberties Union of Hawaii say they will pursue equal rights for gay and lesbian couples in court.

“If HB 444 is vetoed, there will be a lawsuit by the end of the month,” said Lois Perrin, legal director of the ACLU of Hawaii.

Honolulu law firm Alston, Hunt, Floyd & Ing would be co-counsel in the case, which would be filed in 1st Circuit of Honolulu. Perrin said the “essential grounds of the case would be based on Hawaii’s constitution requiring the provision of equal rights and benefits very similar to Baehr v. Lewin.”

Baehr v. Lewin was the 1993 case that first sought the right to marry for same-sex couples in Hawaii. In 1998 Hawaii voters amended the state’s constitution to give the Legislature the power to define marriage as limited to a man and a woman. The next year, in Baehr v. Miike, the high court ruled that Hawaii’s constitution no longer protected the freedom of lesbian and gay individuals to marry.

Whatever happens in Hawaii may become moot depending on the outcome of Perry v. Schwarzenegger, a case where arguments ended last month in U.S. District Court in Northern California. Perry v. Schwarzenegger challenges the constitutional validity of Proposition 8, an amendment to the California State Constitution that prohibits the state from recognizing same-sex marriages performed on or after November 5, 2008.

Perry v. Schwarzenegger is widely considered to be a landmark case on par with others such as Loving v. Virginia, the 1967 case where the U.S. Supreme Court ruled that Virginia’s anti-miscegenation law was unconstitutional. A more recent and also related landmark case came in 2003, when the high court ruled against a sodomy law in Lawrence v. Texas.

In another related issue, President Obama is moving toward repealing the military’s “don’t ask, don’t tell” policy banning homosexuals from serving openly in the armed forces.

Depending on the outcome of those issues, the historic chapter on equal rights for same-sex couple that began nearly two decades ago in Hawaii could finally be written.

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