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UPDATED 2/18/12 5:45 p.m.
It is hard to believe that almost two decades have passed since Hawaii’s 1993 Baehr v Lewin Supreme Court ruling launched the marriage equality movement. In that groundbreaking and first-of-its-kind ruling, the Hawaii Supreme Court affirmed that denying same-sex couples marriage licenses was a presumptive violation of the equal protection guarantees of the Hawaii Constitution and should be subject to strict scrutiny.
Fast forward to 2008 when the California Supreme Court declared California’s ban on marriage of same-sex couples to be unconstitutional. In the period subsequent to this ruling, approximately 18,000 same-sex couples legally married in California until the California Supreme Court ruling was overturned by California’s Proposition 8 on November 4, 2008. On February 7, 2012, in Perry v Brown, the U.S. Ninth Circuit Court of Appeals upheld a lower court ruling that Proposition 8, the anti-gay measure that stripped gay and lesbian Californians of their right to marry, is unconstitutional.
If Baehr v Lewin was the shot heard round the world, Perry v Brown, according to Lambda Legal’s Jon Davidson, is “the ruling that foreshadows the ultimate fate of other states in the Ninth Circuit that refuse to recognize the equal dignity of same-sex couples and their families by shunting them off to second-class statuses like domestic partnerships or civil unions.”
While the Ninth Circuit’s decision was narrowly crafted, applying only to the illegality of Proposition 8, it does provide federal judicial validation of the claims made by Equality Hawaii, the state’s largest lesbian, gay, bisexual, and transgender advocacy organization. It signals where the nation is heading, has already spurred action in other states, and should be a catalyst for further progress in Hawaii.
Equality Hawaii has been consistently clear that our long-term goal is full marriage equality for same-sex couples in Hawaii. Marriage is the only social status that conveys a common understanding of love, commitment, and family. The Ninth Circuit declared that California’s version of civil unions, known as Registered Domestic Partnerships, is not equal — “We do not celebrate when two people merge their bank accounts; we celebrate when a couple marries.”
Judge Stephen Reinhardt, writing for the majority in Perry, states that “Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California and to officially reclassify their relationships and families as inferior to opposite-sex couples.”
Here in Hawaii, same-sex couples never had a chance to enjoy the fruits of the Baehr v Lewin decision and the Circuit Court’s subsequent and favorable judgement in Baehr v Miike because in 1998, Hawaii voters, in a move similar to Proposition 8, ratified a legislatively proposed amendment to the Hawaii Constitution, which stated that “the legislature shall have the power to reserve marriage to opposite-sex couples.” Unlike Proposition 8, which banned marriage for same-sex couples altogether, Hawaii’s marriage amendment stripped the the state courts of their authority to apply the right of same-sex couples to the equal protection laws in determining their entitlement to marriage and placed the sole authority to define marriage into the hands of the Hawaii legislature.
While we appreciate the creation of civil unions by the Hawaii Legislature and recognize that civil unions do provide expanded legal rights to same-sex couples and their families, we continue to be relegated to a second-class status that denies us our full dignity. How many opposite-sex couples would view with favor the Hawaii Legislature or Hawaii voters telling them they cannot marry the person they love?
When Equality Hawaii first embarked on its campaign in 2007 to pass a civil unions law, social and political circumstances, both nationally and locally, were quite different than they are today. Back then only one state, Massachusetts, offered full marriage equality, and we did not have the support of the majority of the public for the passage of a marriage equality bill in Hawaii. The only feasible option before us at the time was to pursue civil unions as an incremental step towards full marriage equality.
Today, marriage is legal for same-sex couples in Massachusetts, Connecticut, Vermont, New Hampshire, Iowa, New York, and the District of Columbia. Since the Ninth Circuit Court’s Perry decision, we’ve seen progress in multiple states. Marriage equality was passed and signed into law in the State of Washington. A marriage equality bill was passed by the New Jersey Senate and is awaiting action in the New Jersey House of Representatives. A marriage bill has also passed a joint committee public hearing in Maryland and is heading to a full floor vote before the Maryland House of Delegates. The State of Illinois, which, like Hawaii, recognized civil unions in 2011, introduced a marriage bill into its legislature.
Our victories in New York and Washington, as well as current progress in Maryland, would not be possible without the courageous leadership of the Democratic governors of those states. We’ve also witnessed California’s Governor Jerry Brown refuse to defend Proposition 8 due to his belief that it was unconstitutional. Finally, we’ve seen the wisdom of President Barack Obama in his decision not to defend in the federal courts, the so-called Defense of Marriage Act, which bars recognition and rights to legally married same-sex couples, including those who live in states where such marriages are legal.
In Jackson v Abercrombie, which was filed in Hawaii’s federal district court last December, the plaintiff same-sex couples who wish to marry are making the claim that Hawaii’s “opposite-sex only” marriage requirement violates the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution. We agree and support their desire to legally marry and not to be relegated to the status of partners in a second-class civil union.
It is no secret that we are in the midst of a major civil rights struggle, and the inevitable outcome should be clear to all. The nation is moving towards full marriage equality for same-sex couples. The Hawaii Legislature has the power to legalize marriage for same-sex couples at any time. We ask that Governor Abercrombie and the Hawaii Legislature be mindful of these historic changes and work with us toward fulfilling a promise that began almost two decades ago — the promise of marriage equality.
UPDATE: On February 16, 2012, the New Jersey Assembly (House) passed marriage for same-sex couples by a vote of 42-33. This follows passage in the New Jersey Senate earlier in the week. On February 17, 2012, the Maryland House of Delegates voted 71-67 in favor of marriage equality and now the the bill heads to the Maryland Senate where passage is expected. The Maryland Senate passed a similar bill in 2011.
About the author: Alan R. Spector, LCSW, a psychotherapist in private practice, is a co-founder and current member of the Board of Directors of Equality Hawaii, the state’s largest lesbian, gay, bisexual, and transgender advocacy organization.