Hawaii’s lengthy and emotional deliberation over the spousal rights of same-sex couples entered a new phase today when six gay and lesbian couples filed a lawsuit against Gov. Linda Lingle.

Young v. Lingle, which was filed in 1st Circuit Court of Honolulu, aims to do what the plaintiffs argue the governor and the state Legislature failed to do: Treat all couples equally under the law.

“We want an order for the state to offer a system by which same-sex couples must be offered the same laws,” said Jennifer Pizer, senior counsel for Lambda Legal, one of three groups representing the couples. “The status would not have to bear the name civil unions, but it is a term that would be understood. The key idea is it needs to be complete.”

Hawaii’s reciprocal beneficiaries law does not offer complete rights, said Daniel Gluck, a senior staff attorney with the ACLU of Hawaii, another group representing the couples.

“It’s a random and incomplete package,” said Gluck. “There are many holes.”

Gluck said the complete rights range from simple matters such as taking a common family name, to the “most arcane,” such as if a couple needs nursing home protection with Medicaid.

“Then there are the rights and protections no want wants to think about, like being in Family Court to manage disputes,” he said. “These are the rules about money and property and child support.”

House Bill 444, which Lingle vetoed July 6, would have given those rights to same-sex and heterosexual couples who enter a civil union.

The couples felt they had no recourse other than to take the governor to court.

“The governor had an opportunity to uphold her oath of office. Unfortunately, she chose to perpetuate a system that actively discriminates against same-sex couples,” said Gluck. “When elected officials fail, we go to court. To suggest that this be decided by a popular vote is absurd. We do not allow a majority to determine if a minority is to be treated fairly under the law.”

Beside Lambda and the ACLU, Honolulu law firm Alston, Hunt, Floyd and Ing is representing the couples. Five are from Oahu and one is from the Big Island.

The couples are Tambry Young and Suzanne King, Robie Lovinger and Louise Esselstyn, Kale Taylor and Sean Smith, Jill Guillermo-Togawa and Pauline Guillermo-Togawa, Linda Hamilton Krieger and Kathleen Sands, and Allen Castro and Danny Robinson.

A spokeswoman for the Hawaii Attorney General’s Office said Attorney General Mark Bennett received a copy of the lawsuit around 1 p.m. today and could not comment until he reads it.

Veto Represents “Moral Disapproval”

Young v. Lingle makes two claims.

The first claim states that the six couples have been denied equal protection based on sex and sexual orientation, as protected under Article 1, Sections 2, 3 and 5 of the Hawaii Constitution.

In their court filing, the attorneys write that “the State reserves many critically important family protections, rights, benefits, duties, responsibilities, and obligations to different-sex couples who avail themselves of their prerogative to marry under Hawaii law, and relegates same-sex couples, including Plaintiffs, at most to the inferior status of reciprocal beneficiaries.”

That unlawful discrimination has resulted in “economic and dignitary detriment and harm” to the plaintiffs…Defendants’ actions and inaction reflect moral disapproval and antipathy toward lesbians and gay men, including Plaintiffs, serve no legitimate government interest and are, therefore, invalid under and form of constitutional scrutiny.”

The first claim states that gays and lesbians have, as a result of Lingle’s veto, been “purposefully” singled out as a minority group “that historically has suffered unjust and discriminatory treatment in law and society.”

Plaintiffs Have “Protected, Fundamental Rights”

The second claim is based on denial of due process and privacy as covered under Article I, Sections 5 and 6 of the Hawaii Constitution.

The right to privacy is protected, plaintiff attorneys write, and cannot be infringed without a “compelling state interest. The legislature shall take affirmative steps to implement this right.”

Each plaintiff has the right and liberty to form and maintain an “intimate family relationship with his or her committed same-sex partner.” By not allowing same-sex couples access to “critical legal protections, rights and responsibilities offered only to different-sex married spouses burdens and punishes Plaintiffs by imposing economic and dignitary harms upon them and interferes with their autonomy to structure and conduct their family lives.”

The suit also argues that Lingle has essentially selected “disfavored treatment” for gays and lesbians and thus encouraged heterosexual relationships and discouraged same-sex relationships. The governor’s actions and inactions are “arbitrary, irrational and indefensible.”

“Prayer for Relief”

The six couples’ lawyers are asking the court for “the full panoply of protections, rights, benefits, duties, responsibilities, and obligations” that state law gives to different-sex couples.

That involves requiring the state to provide same-sex couples “a way to qualify” for those same rights. “The public interest strongly supports granting an injunction to end Defendants’ invidious discrimination against Plaintiffs,” according to the brief.

The state in this case means the Legislature and the governor.

Steven Levinson, the retired Hawaii Supreme Court associate justice who authored the 1993 Baehr v. Lewin opinion that said laws prohibiting same-sex couples the right to marry violated equal protection rights unless the state could show a “compelling reason” for such discrimination, called the equal protection claim in Young v. Lewin “very, very strong.”

“The logic of the first claim in relief is that the 1998 marriage amendment did not overrule Baehr with respect to the equal protection analysis, which forbids the state from engaging in invidious sex discrimination,” he told Civil Beat. “It still applies to access to rights, benefits, duties and responsibilities that flow to a couple that is married and would flow to same-sex couples who are in long-term relationships but for the fact that they are legally prevented from getting married.”

The California Case

Just as Baehr v. Lewin was the first lawsuit of its kind in regards to same-sex couples, attorneys for Young v. Lingle say their case is similarly unique.

Lawsuits in mainland states have addressed specific issues such as health insurance for same-sex couples. In terms of requiring a state to offer the same benefits to same-sex couples as diferent-sex couples, Levinson pointed to New Jersey, whose high court ruled against an equal protection argument. New Jersey today offers civil unions.

Another case, Perry v. Schwarzenegger, will decide whether California’s Proposition 8, which banned gay marriage, was constitutional.

Lambda’s Pizer clarified that the California case was being heard in federal court while the Hawaii case is being heard in state court. But Pizer said a ruling in Perry v. Schwarzenegger, which is expected soon, would certainly influence the tenor of same-sex debates here at home.

Until those decisions and others are made, couples like Kathleen Sands and Linda Krieger will not give up their fight.

“We have to continue in dialogue with others in the state and the courts, including those who oppose civil unions,” she said. “This is extremely important.”

About the Author