Tuesday marked the end of House Bill 444, but it’s not the end of the debate over gay rights in Hawaii.
A fight that started in the courts almost two decades ago and has weaved its way through ballot initiatives, the Hawaii Legislature and now the governor’s office could be headed back to the judicial branch of government soon.
Lambda Legal, the American Civil Liberties Union and the law firm of Alston, Hunt, Floyd and Ing will soon file a lawsuit seeking equal rights for same-sex couples, Lambda Legal National Marriage Project Director Jennifer C. Pizer said in a phone interview from California just moments after Gov. Linda Lingle vetoed Hawaii’s civil unions bill.
The suit will seek to apply the “core constitutional concepts that every Hawaii family has the right to be protected under the Hawaii Constitution,” Pizer said. “This is an effort that we’ve been prepared to make for some time, but we’re disappointed that it’s necessary.”
Pizer declined to discuss the suit in detail because it has not yet been filed. The lawsuit will likely accuse the state of violating the equal protection and due process clauses of both the Hawaii Constitution and the U.S. Constitution. The plaintiffs could include multiple same-sex couples who can identify specific rights to which they are entitled and ways in which they have been denied equality.
“We have been preparing this for over a year,” Pizer said. In February, after lawmakers appeared to shelve the bill for the remainder of the legislative session, the groups put out a press release threatening suit.
“We hit the pause button on this lawsuit repeatedly because it’s certainly a good thing when the Legislature deals with inequalities and the governor allows those kind of solutions to take effect,” she said. “But when the legislative process fails or the governor stands in the way of that kind of protection for families, sometimes we need to protect our clients in court.”
Lambda Legal and the ACLU reiterated the threat in a joint press release [pdf].
“We’re obviously disappointed that Governor Lingle has, once again, used her power to deny the people of Hawaii their civil rights,” said Laurie Temple, staff attorney for the ACLU, in the release. “Luckily for the people of Hawaii, however, our constitution prevents discrimination based on sexual orientation. If the governor won’t honor her oath to uphold the constitution, the courts will.”
In her veto message [pdf], Lingle said civil unions are “essentially marriage by another name,” and that she is “convinced that this issue is of such significant societal importance that it deserves to be decided directly by all the people of Hawaii.”
“This is a decision that should not be made by one person sitting in her office or by members of the majority party behind closed doors in a legislative caucus, but by all the people of Hawaii behind the curtain of the voting booth,” she said, apparently suggesting that a new amendment to the Hawaii Constitution should be considered.
Lingle said later when questioned by reporters that she expects an amendment will be on the “next available ballot” and said “it should be phrased in a way where it’s clear” what people are voting on.
Lt. Gov. James “Duke” Aiona, a candidate for governor, supported the veto and the call for a constitutional amendment.
“As I have always said, this issue will persist as long as lawmakers continue to keep the public from deciding whether marriage should be between a man and a woman,” Aiona said in a press release. “If elected governor, I will propose a constitutional amendment on this issue so the people can define marriage once and for all.”
Former Hawaii Supreme Court Justice Steven H. Levinson criticized Lingle’s rationale for the veto.
It was Levinson’s 1993 opinion — which stated that laws denying same-sex couples the right to marry violated equal protection rights unless the state could show a “compelling reason” for such discrimination — that spurred the state to change its constitution. In 1998, voters overwhelmingly approved [pdf] an amendment “intended to make it absolutely clear that the State Constitution gives the Legislature the power and authority to reserve marriage to opposite-sex couples.”
“What the 1998 amendment did was to take marriage out of equal protection analysis and give the Legislature a monopoly over who had access to it,” Levinson told Civil Beat Tuesday afternoon. “What the Legislature did in passing HB 444 was exactly what the 1998 marriage amendment authorized the Legislature to do. … It’s totally the Legislature’s call, so the Legislature made a call.
“That’s what makes the governor’s explanation as to why she vetoed the bill so perplexing. In effect, she suggested that a large segment of the people who voted for the marriage amendment in 1998 didn’t understand what they were voting for and therefore should have a second bite out of the apple that would prohibit the Legislature from recognizing legal same-sex status.”
A new amendment to the Hawaii Constitution providing the clarity Lingle seeks would need to be worded “in a more Draconian way” to ensure that “no status that walked, talked or quacked like marriage but involved same-sex couples would have any legal status whatsoever,” Levinson said, pointing to language in a similar amendment to Ohio’s Constitution.
“The (1998) amendment was clear on its face: The Legislature shall have the right to reserve marriage to opposite-sex couples,” he said. “Evangelical clergy people were telling people that they were voting to ban same-sex marriage, but on the plain unambiguous face of what the language said, they weren’t.”