by Peter Freiberg
Washington Blade,
April 23, 1999
When Hawaiians voted on an initiative concerning same-sex marriage last November, the results seemed clear: The overwhelming majority of voters wanted the legislature to amend the state constitution to "reserve marriage to opposite-sex couples." Most political observers presumed the legislature would do just that as soon as it convened two months later, in January 1999.
But almost five months later, the legislature hasn’t acted on the constitutional amendment at all. And it isn’t expected to in the remaining weeks of its 1999 session. Instead, legislators have accepted an advisory opinion from the state attorney general that no action is needed because there was already a 1994 statute on the books that defines marriage as being for heterosexuals only.
This was the attorney general’s interpretation of the current state of the law even though the 1994 statute was declared unconstitutional by a court.
Two legislators told the Blade that the legislature has accepted the attorney general’s interpretation in part because the marriage issue is still very much a political hot potato, burning legislators on both sides of the issue, and most legislators do not want to revisit it this session.
But legislators reportedly also felt that, if they acted on the marriage issue, they would also have to act on a proposal by Gov. Ben Cayetano (D) to expand the domestic partner rights of Gay couples.
Since pro-Gay advocates didn’t want another law defining marriage as heterosexual, and anti-Gay advocates didn’t want domestic partner rights enlarged, both sides are content to see no action taken on either issue this session, according to state Rep. Edward Case (D).
"In response to the various segments of the community that are interested in Gay-related issues," Case said, "the legislators wanted to defer to the courts for now, to await the outcome of issues pending in the Hawaii Supreme Court."
State Sen. Matt Matsunaga (D), co-chair of the Senate Judiciary Committee, said, "Politically, I think the issue caused such division in the community and in the legislature that legislators perhaps wanted to take a rest from the issue. … The attorney general’s opinion gave us a good reason why we did not have to act to redefine marriage."
Dan Foley, the Hawaii attorney who initiated the marriage case on behalf of three Gay couples, said the lawmakers "don’t need to act until there’s a court decision. Nobody’s asking them to act: We aren’t, the religious right isn’t, so they’re very happy not to do anything."
Meanwhile, the state supreme court has had the marriage case in front of it for more than two years now and has done almost nothing. It has not acted on the appeal by the state of a December 1996 decision by Judge Kevin Chang in which Chang ruled that the state has no "compelling state interest" to withhold marriage licenses from same-sex couples. Chang’s decision, if upheld by the Hawaii Supreme Court, could make the state the first in the nation to legalize marriage licenses for Gay couples.
But, following the November 1998 vote, the state supreme court did ask attorneys for both sides in the marriage case to submit briefs discussing whether the initiative’s intent could be applied only "prospectively" (to future Gay marriage applicants) or also "retrospectively" (to the couples who sought marriage licenses before the initiative).
In their briefs, Foley and his co-counsel, Evan Wolfson, director of the Marriage Project of Lambda Legal Defense and Education Fund, argue that the initiative’s intent does not apply retroactively. They maintain that the three Gay couples in the lawsuit were denied licenses unconstitutionally. And, even though voters in November gave the legislature the power to legally deny licenses to future Gay applicants, say Foley and Wolfson, this does not apply to the three couples who first sought licenses in 1990 — more than eight years before the initiative was voted upon.
"We say that the plaintiffs still can marry," said Foley, in an interview, "and anyone who applied for a license prior to the legislature enacting a law can marry."
Foley and Wolfson also argue that the constitutional amendment authorized by the initiative vote does not overturn the Hawaii Supreme Court’s 1993 ruling. That early ruling held that denying Gay couples the rights and benefits enjoyed by heterosexual couples through marriage constitutes discrimination based on sex, which is prohibited under the Hawaii state constitution’s equal protection clause.
"If [marriage] licenses are to be withheld," Foley and Wolfson maintain, "the sex discrimination analysis … still forbids discrimination in the important rights, responsibilities, and benefits that these [same-sex] couples seek."
The brief asks the court to declare that any future law by the legislature limiting marriage to opposite-sex couples be barred from denying same-sex couples "access to the rights and benefits that have been linked to marriage."
"We’re arguing," Foley said, "that, if the legislature in the future prohibits marriage [licenses] to same-sex couples, [same-sex couples are] at least entitled to a Denmark-type domestic partnership."
What the Hawaii Supreme Court will do — and when it might do it — is still anyone’s guess.
Jon Van Dyke, a professor of constitutional law at the University of Hawaii Law School, says that, given the controversy, "I think [the justices] view the case as a lose-lose situation. But they’re strong, and they’ll make a decision — and they’ll probably be divided as well."
State Rep. Case, who opposed the anti-Gay marriage initiative, says he believes the attorney general is right in arguing that the 1994 statute makes it unnecessary for the legislature to act again. But Case says that, short of legalizing Gay marriage, "the fight for the rights of same-gender couples is very much alive right now in Hawaii."
"I believe the state will, in the fairly near future, enact some fairly far-reaching domestic partner laws, because I believe the general population of Hawaii supports that," Case said.
Meanwhile, an anti-Gay Hawaii activist who was a leader in the campaign for the initiative to bar Gay marriage has taken his fight to Vermont, where that state Supreme Court is considering whether to make same-sex marriage legal.
According to the Burlington Free Press, a daily newspaper, Mike Gabbard sent a letter to every Vermont household urging people to get in touch with a Vermont group opposing Gay marriage. The letter was funded with $40,000 contributed by a group called Citizens for Community Values of Ohio. Mary Schroyer, president of Take It to the People, a new Vermont group that intends to try to bring the issue before the voters if the state court legalizes Gay marriage, said the letter "rightly focuses Vermont’s attention on this important national issue."
"This will make people a little more aware of the issue and hopefully spark some interest with a grassroots effort," Gabbard told the Free Press. "That’s how we won in Hawaii."
This article appeared in the issue of:
April 23, 1999 in the Washington
Blade