Date: Thu, 06 Mar 1997 20:01:06 -1000 From: lambda@aloha.net (Martin Rice) Subject: A Brief History and Current Status of Same-Sex Marriage in Hawai`i [Author's note: permission to redistribute and reprint is granted as long is proper accreditation is noted and biography is included. Any editing must be approved before permission to redistribute or reprint is granted.] A Brief History and Current Status of Same-Sex Marriage in Hawai`i by Martin Rice Aloha kakou. The controversy surrounding the possibility that two people of the same gender could be allowed to be legally married in Hawai`i has been swirling around the state since three same-gendered couples, Tammy Rodrigues and Antoinette Pregil, Pat Lagon and Joe Melillo and Genora Dancel and Ninia Baehr, applied for marriage licenses at the Hawai`i State Department of Health in December of 1990. At that time, Hawai`i's marriage laws were gender-neutral, i.e. no specific law was in place that delineated that a couple must be of opposite genders. In fact, even the marriage license applications did not ask which party was the bride or groom, or asked for gender identification. Before the three couples went to the Department of Health, the then-Director of the Gay and Lesbian Community Center in Honolulu, Bill Woods, had been busy orchestrating the event. The local media was there, all the "i's" were dotted and the "t's" were crossed, and as anticipated, the requests for applications were denied on the basis of the gender of the applicants. The three couples then sued the State of Hawai`i to obtain the marriage licenses. First Amendment specialist and civil rights attorney, Dan Foley, was retained. The Hawai`i Equal Rights Marriage Project (hermp) was formed, primarily to raise funds to cover Dan Foley's fees as none of the national Gay and Lesbian organizations would offer any help or lend any assistance for the court case that would become known as Baehr v. Lewin (later Baehr v. Miike). The circuit court case was heard in September 1991, and the lawsuit was dismissed by Judge Klein. Foley, Woods and the three couples immediately regrouped, and filed for an appeal with the Hawai`i Supreme Court, citing that the rights of the three couples had been denied. During this time, then-Governor John Waihe`e convened the first Governor's Commission on Sexual Orientation and the Law which included eleven members. This initial commission was later disbanded as it was found to be in violation of the principle of separation of church and state as it deliberately, that is not coincidentally, included two Catholics and two Mormons. Finally, in October of 1992, the case was heard before the Hawai`i Supreme Court, and Circuit Court Judge Klein's decision was overturned in a pronouncement by Judge Levin in May of 1993. The case was sent back to the lower court to be retried. In the meantime, local anti-gay activism began to take hold in the Aloha State. Mike Gabbard, Father Marc Alexander, Leon Siu, Linda Rosehill, Jack Hoag and Debbie Hartmann began making their presence known. The next significant movement on the marriage issue came in April, 1995, when the legislature approved a rewording of an existing law, Hawai`i Revised Statue 572-1, to define marriage in terms of one man and one woman. However, Article I, Section 5 of the Hawai`i State Constitution still remained unchanged and it stated that no laws may be made on the basis of sex (i.e., gender), and it is this higher document that continues to form the basis for the struggle for equality in the Lesbian and Gay Community. September 1995 saw the establishment of the second Governor's Commission on Sexual Orientation and the Law under Hawai`I's current Governor, Ben Cayetano. It included seven members and *excluded* official representation from the Mormon and Catholic churches. The seven were Thomas Gill (former Lt. Governor of Hawai`I), Morgan Britt, Ku`umeaaloha Gomes, Nancy Kreidrman, Bob Stoffer, Marie Sheldon and James Hockberg, Jr. This commission recommended that six different avenues of approach to the marriage issue be taken. The two chambers of the legislature, which convened immediately thereafter, took stances so far apart, that no action was taken during 1996, although much attention was drawn to the issue, and the state legislature took far too much time on the issue, while other issues were left unattended to. The long anticipated and often delayed trial began in September 1996, and was over in two weeks. The defense (the state) sought to prove that children were the reason why marriage licenses are issued and that children are best raised by their biological parents. The plaintiffs were able to prove that the gender of the parents had no bearing on the ability to raise children and that the best environment for raising children was in a nurturing environment, regardless of the sexual orientation of the parents. The Judge, Kevin Chang, ruled on December 3, 1996 that the State of Hawai`i had failed to prove its case and that the state did not have a valid reason to deny marriage licenses to the three same-sex couples, and he ordered the state to issue the licenses immediately. However, the Hawai`i State Attorney General's office requested an appeal, which was granted immediately. The issuance of the three marriage licenses was put on hold until the Hawai`i Supreme Court could hear the appeal later this year. In the meantime, conservative forces, comprised mostly of religious groups, gathered and spearheaded by the coalition of anti-gay forces, began an intensive campaign to attempt to thwart the court's ruling by lobbying to establish the legislation needed to change the state constitution as to define marriage in terms of one man and one woman. The only form this can take is a constitutional amendment which must be presented to, and approved by, the voters. The Hawai`i House of Representatives acted quickly this legislative session, and passed a bill, HB 117, which called for such a constitutional amendment and HB 118, which established "Reciprocal Beneficiaries" and would grant a minimal rights package "to those people who are otherwise not able to marry." The Senate, on the other hand, rewrote HB 117, stating that it's okay to let the state and voters decide the definition of marriage as long as no one's civil rights are diminished or denied in the process. HB 118 was further amended by the Senate to include all state benefits, rights and obligations that could be extended are extended to same-gender couples, excluding those benefits and rights that are deemed federal in nature. And in the background is yet another facet of the marriage issue: the question presented to the voters in the November 1996 general election for a state Constitutional Convention (aka ConCon), as is done every ten years. The constitutional language that determines the computation of the votes of such a question remains unclear however, and has been challenged in the Hawai`i Supreme Court by the AFL-CIO. The Hawai`i Supreme Court must decide whether a majority of the 323,000 votes tallied or 368,000 ballots cast forms the basis for determining whether or not the Constitutional Convention will be held. 163,000 voters approved a ConCon, 160,000 voted against it, with 45,000 blank votes. It is the 45,000 blank ballots, and their inclusion or exclusion that determines whether or not a ConCon will take place (probably in 1999 or 2000). Under existing Hawai`ian law, for example, a Constitutional Amendment requires a majority of "ballots cast," thereby including the blank ballots: the blank ballots become "No" votes. A Constitutional Convention would, in all probability, address the same-gender marriage issue, among many other issues. It is now approaching the midpoint in the legislative session, and the next event regarding the marriage issue has just lapsed. It was dubbed the "Joint Conference Committee" of the House and Senate Judicare Committees, and both sides have presented their cases and defended their positions and have recessed, to reconvene at a later date to hammer out a mutually agreeable resolution or to dissolve without any further action taken by the legislature this session. What is important to note here is that the House and the Senate are just as far apart as they ever have been. The decision by Judge Chang moved everyone one step to the left from their 1996 positions. The conservative anti-gay elements are now saying that they never opposed Domestic Partnerships, the House has included a minimal rights package to go along with their call for a Constitutional Amendment, the Senate has expanded their call for Domestic Partnership to include all benefits that they can legally grant, and the Gay and Lesbian Community, which had hoped for full Domestic Partnerships last year, will settle for nothing less than full marriage benefits this year. If the conservative elements wanted to defeat the marriage issue, they missed the boat, the time has lapsed. 1996 would have been their year had they been more transitory and not placed their faith in the wrong place. It still amazes the conservatives that the issue is civil law, not religious sacrament. ~~pau~~ *Free-lance writer Martin Rice lives with his partner Fred Rainville, in Hawai`i and has been closely involved with the marriage issue there. He is active in Democratic Party politics and is a third-generation resident. Both he and his partner are Vietnam Veterans, and after 24 years, are still considered strangers before the law.* ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ "The only unnatural sexual act is that which you cannot perform." --Alfred Kinsey ~~~~~ Fred and Martin 24 years, yet strangers before the law ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~