UPDATED 11/21/2012 1 p.m.
Emboldened by wins on Election Day, local advocates for same-sex marriage say Hawaii may be one of the next states to legalize it.
Legislation could be introduced as early as the 2013 Hawaii Legislature, which opens Jan. 16.
The gay-marriage advocates say discussion is already underway to consider the best approach, something that will become clearer over the next few months as the governor, the state Senate and the House prepare their respective legislative packages.
For now, the executive and legislative branches are not publicly disclosing any details. Lawmakers may also opt to wait and see what the U.S. Supreme Court rules in several landmark gay-marriage cases over the next year.
But, in an ironic twist, the very same 1998 constitutional amendment that led Hawaii to define marriage as between a man and a woman could be the mechanism that one day legalizes gay marriage.
“By virtue of the 1998 amendment, the Legislature has a monopoly over what the configuration of marriage is going to look like in Hawaii, including whether marriage will be opened to others,” said Steven Levinson, a former associate justice of the Hawaii Supreme Court. “The Legislature can do it by statute, because Article 1, Section 23 of the Hawaii Constitution says the Legislature shall have the power to reserve marriage to opposite-sex couples.”
That same power, he reasons, gives lawmakers the right to reverse that decision.
It was Levinson who wrote the 1993 court opinion that said if the state wanted to prohibit same-sex couples from marrying, it had to show a “compelling reason” for violating the Equal Protection clause of the Constitution. He now sits on the board of Equality Hawaii, one of the key groups seeking gay-marriage rights.
“With the results of the election now in, there is a clear indication that the country as well as Hawaii is still moving on this issue, but the winds have definitely changed in our favor,” said Donald Bentz, Equality Hawaii’s executive director. “It is no longer a question of if gay marriage comes to Hawaii but a question of when. And we are exploring all options and having all necessary conversations with the appropriate stakeholders to determine when the appropriate time is going to be.”
While gay marriage is far from a done deal in Hawaii, there is growing consensus that gay marriage may be inevitable
Nine states and the District of Columbia currently allow gay marriage. On Nov. 6, gay marriage was approved in Maine, Maryland and Washington state — the first time it was approved by ballot initiative rather than by legislatures and courts. A fourth state, Minnesota, rejected a proposed ban.
A week after the election, in a Nov. 13 article, The New York Times identified Hawaii as one of the states where the gay-marriage push is expected next. New York is the largest state to legalize gay marriage.
On Tuesday, Politico reported that Hawaii is among seven states (the others are Minnesota, Oregon, Rhode Island, Delaware, Colorado and New Jersey) that gay-marriage advocates believe will legalize gay marriage by 2014 through ballot measures, court decisions or state legislative action.
It’s not just a national trend.
The Nov. 17 issue of The Economist says 11 countries including Argentina, Spain, South Africa and Canada allow full marriage rights for gays, as does Mexico City. Proposals are pending in France, New Zealand, England and Scotland. (Oddly, the magazine mistakenly identifies Hawaii as a state where there is “persecution, prohibition or unclear laws” when it comes to gay marriage.)
In the near term, the U.S. Supreme Court is expected to decide next week which cases to hear regarding gay marriage. They include five challenges to the federal Defense of Marriage Act (DOMA), a challenge to California’s Proposition 8 and a challenge to Arizona Gov. Jan Brewer’s effort to stop gay couples from receiving domestic partner benefits.
There are other indications of a sea change, nationally and at home.
On Nov. 6, the first openly gay woman was elected to the U.S. Senate, two new gay candidates were elected to the U.S. House of Representatives, an Iowa judge who supports gay marriage was retained by voters (Iowa’s high court legalized gay marriage in 2009) and President Barack Obama was re-elected. Obama was instrumental in repealing the U.S. Armed Forces’ “Don’t Ask, Don’t Tell” policy, declined to defend DOMA and — just this year — announced support for gay marriage.
Obama received a healthy majority of the vote in Hawaii, as did congressional candidates Mazie Hirono and Tulsi Gabbard, who have embraced gay marriage, unlike their Republican opponents. Democrat U.S. Rep. Colleen Hanabusa, who was also re-elected, told Civil Beat in May that she believes marriage “should be between a man and a woman” but that she would support gay marriage if it was passed nationally or in Hawaii.
Despite the changes nationally and support for congressional candidates who support gay marriage rights, it’s not clear that a majority of Hawaii residents would welcome gay marriage.
A Civil Beat Poll in May asked, “Do you believe that same-sex couples should or should not have the legal right to get married?” Of registered Hawaii voters surveyed, just 37 percent said yes, 51 percent said no and 12 percent weren’t sure.
There are several local groups committed to blocking the gay marriage tide. They include the Hawaii Christian Coalition, which has identified “the Gay Agenda” as a topic of concern; and the Hawaii Family Forum and Hawaii Family Advocates, the forum’s legislative action arm.
“It is very clear that the Hawaii Family Forum, since 1998, has supported marriage between one man and one woman,” said Eva Andrade, the group’s executive director. “But we have seen this coming. During the civil union hearings, we said civil unions weren’t going to be the end of story, that they would be back for full marriage. So we are not surprised.”
Andrade said the forum is in the early stages of deciding what to do should there be a battle over gay marriage.
“Conversations are taking place, but I want to make this clear — we are in this for the long haul,” she said.
The Hawaii Family Forum is an intervenor in Jackson v. Abercrombie, a 2011 lawsuit filed on behalf of a lesbian couple and a gay male that argues Hawaii’s ban on same-sex marriage is unconstitutional. The case is on appeal to the 9th Circuit Court of Appeals.1
Jackson v. Abercrombie put the Hawaii Attorney General in the unusual position of both fighting and supporting the lawsuit: Gov. Neil Abercrombie said he does not support the law because it is a denial of equal rights, while Loretta Fuddy, Abercrombie’s health director, chose to defend the law.
The Hawaii Family Forum’s attorney, Jim Hochberg, said he believes members of the Legislature know that most of the people in Hawaii want to preserve marriage between a man and a woman.
“So, I think they could smartly respond one of either two ways,” he said. “One, they could say that it is in the courts, so let’s wait to see what the courts say. Alternatively, they could say that they not do want to vote directly on this, so let’s let the people decide. That way the Legislature does not get blamed.”
Equality Hawaii’s Benzt opposes a ballot initiative.
“Civil rights should never be up to the general public for approval or disapproval,” he argued.
Since Hawaii enacted its civil unions law just this past January, essentially conferring the same rights, responsibilities and benefits of marriage, why should Hawaii then have gay marriage?
Bentz has an answer: “When someone does ask that quesiton, it’s a good idea to turn it around and tell them to ask a heterosexual person, ‘Why do you want to get married?’ It’s because they want to stand up in front of friends and family and express commitment to each other in a very pubic way — it’s the exact same reason. When growing up you always dream of what your wedding will look like, and we have those same dreams, too.”
Bentz said there are also federal rights that civil union partners in Hawaii are not entitled to, such as receiving a partner’s military veteran benefits.
Michael Golojuch Jr., chairman of both the GLBT Caucus of the Democratic Party of Hawaii and Honolulu Pride, said Oahu Democrats, the state party and the national party put marriage equality into their platforms this year.
The platform is not binding on elected Democrats, said Golojuch, but is does reflect solid support for gay marriage that is bound to influence lawmakers.
Asked if Hawaii was pushing too soon for gay marriage less than a year after civil unions were made law, he said, “Justice delayed is justice denied.”
Tambry Young, president of Citizens for Equal Rights, said the concept of marriage is very personal.
Young and her partner Suzanne were married in Massachusetts in 2009, but because gay marriage is not legal here, the couple is not always recognized as being married. She describes marriage as a symbolic union that has great meaning in society, a conferral that does not come from civil unions.
“If we do this, if we push for same-sex marriage, we want the Legislature to be strongly behind its because it’s the right thing to do, not because they are pressured,” she said.