Wedding Bell Blues

What's Taking The Hawaii Supreme Court So Long?

By next month, a full year will have passed since the Hawaii Supreme Court heard final arguments in the state's historic same-sex marriage case. 

At this time last year, many gay men and lesbians had hoped to be spending this summer or fall on weddings and honeymoons in the Aloha State. But as the weeks grind on, court watchers are now uncertain whether a decision will come anytime soon. 

"Although it's gone longer than we would have liked, you cannot conclude that the court hasn't decided or is holding it back," said Dan Foley, attorney for the one gay and two lesbian couples who sued the state for the right to marry. 

Foley noted that the court has not issued rulings on several other cases argued even earlier than the marriage case. 

Still, each month that passes makes the political picture that much murkier, he said. Gay marriage foes have succeeded in placing a proposal on the November ballot that would amend the state constitution to limit marriage to opposite-gender couples. If it passes, the court's decision could become moot. And a decision affirming gay marriage, if released just weeks before the election, could be just as fatal by helping fuel a huge anti-gay turnout. 

"My guess is that the court's not unmindful of the politics of the case," Foley said. "If we don't get a decision in May or June, I don't think we're going to get a decision in October." 

One reason Foley expected an earlier decision is that when the Honolulu Circuit Court ruled in December 1996 that denying same-sex couples the right to marry is gender discrimination under Hawaii's constitution, it also issued an injunction to prevent any such marriages until the high court made its definitive ruling. "When there's an injunction, usually it should come sooner than later," Foley said. "It should have been on the fast track." 

Still, Foley has no doubts about what the ultimate ruling will be. He noted that the high court has already found, in 1993, that denying two people a marriage license because of their gender is a form of sex discrimination. The only question left, he said, is whether there's a "compelling state interest" that would make such discrimination acceptable. The December 1996 circuit court ruling said there is not. 

"When the court rules, the court will rule our way," Foley said. 

The real question lies with the proposed constitutional amendment. It would clearly state that marriage is between a man and a woman. But another part of the constitution would still forbid gender discrimination. 

If the amendment passes, the most likely legal strategy will be to argue that the constitution still requires same-sex couples be afforded all the rights and benefits of marriage under state law, even if they don't receive the official designation as "marriages," Foley said. 

Hawaii isn't the only front upon which the marriage battle is being fought. An almost identical court case is currently pending in Alaska, where a lower court has already ruled that unless a compelling state interest can be shown, same-sex couples cannot be denied marriage in Alaska. In April, the Alaska Senate voted 14-6 to put the issue on its November ballot. 

The battle rages on the mainland as well. A third marriage case is pending in Vermont, although no preliminary rulings have been issued in that lawsuit. And, over the past few weeks, Iowa and Alabama have joined 28 other states that have instituted formal bans on gay marriages. In California, meanwhile, state Sen. Pete Knight, who has twice failed to pass anti-gay-marriage bills in the state Assembly, recently got the OK to collect signatures for a November ballot on this issue. Gay marriages aren't presently legal in California or any other state. But if gay couples win marriage rights in Alaska or Hawaii, state officials in other states want to make clear they won't recognize those unions. 

In Hawaii, meanwhile, Foley and other advocates for equal marriage rights are trying not to worry about the legal case while they fight the political battle. Foley said their own private polls show them the election is "winnable." 

"Regardless of whether [the high court ruling] comes out before or after [the election], we have to win in November," said Foley. 

One positive sign is the continuing legal trouble of one chief opponent, the political action committee Save Traditional Marriage '98. On May 2, the Kauai Board of Ethics called for an investigation of the group's fund-raising.

--Tracy Sypert

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