Same-sex marriage issue has endured a long fight in Hawaii
By Christie Wilson
Advertiser Staff Writer
Hawai'i has been grappling with the issue of same-sex marriage longer than any other state, and recent action at the state Capitol indicates the bitter controversy is nowhere near over.
Supporters and opponents of House Bill 444 — the civil unions bill — are waiting to see if the measure will pass the House with a veto-proof margin, allowing gay couples to enter into civil unions that confer the same rights, protections and responsibilities enjoyed by married opposite-sex couples.
The bill received Senate approval Friday in one of the first major leaps toward expanding the rights of gay couples in Hawai'i since the national debate on same-sex marriage first erupted here in 1993 in the wake of a historic Hawai'i Supreme Court ruling.
That court decision, which said denying same-sex partners the right to marry violated their equal protection rights under the state Constitution, was unexpected and had a far-reaching impact that is still being felt today, according to Jon Goldberg-Hiller, an associate professor of political science at the University of Hawai'i-Mänoa.
"The legal argument for same-sex marriage in various flavors had been tested in a number of different venues and always lost," said Goldberg-Hiller, author of "The Limits to Union: Same-Sex Marriage & the Politics of Civil Rights."
"When the Hawai'i court ruled in 1993, it was the first time anywhere in the world that same-sex marriage was given a legal name and constitutional language it could refer to. Before then, many people did not believe there was such a thing as same-sex marriage. After the ruling, even if they disagreed with it, they had to agree there was a legal idea of same-sex marriage."
As part of the national backlash against the Hawai'i court ruling, Congress enacted the Defense of Marriage Act in 1996, which defined marriage as a union between a man and a woman for federal purposes and spelled out a state's right to refuse to recognize gay marriages performed in other states.
Twenty-nine states have constitutional language defining marriage in the same way and 41 have statutes to that effect, according to the National Conference of State Legislatures.
A handful of these same states also provide varying degrees of spousal rights to same-sex couples.
California, Nevada, New Jersey, Oregon and Washington offer domestic partnerships or civil unions that grant equivalent spousal rights to same-sex couples, just as H.B. 444 proposes.
Hawai'i, Colorado, Maine and Wisconsin provide more limited spousal rights.
Five states — Connecticut, Iowa, Massachusetts, New Hampshire and Vermont — have legalized same-sex marriage.
The reaction of Hawai'i lawmakers to the 1993 court ruling was to propose a constitutional amendment that gave the Legislature the authority to reserve marriage for opposite-sex couples.
Sen. Bobby Bunda, D-22nd (North Shore, Wahiawä), recalls that at the time, he was chairman of the House Consumer Protection Committee, and that then-Rep. Terrance Tom, head of the Judiciary Committee, was making the case that same-sex marriage was a matter of equality.
"As chairs, we were involved in our own committees and usually deferred to each other, but when it came to the issue of same-sex marriage, it was basically a compromise position of handing it over to the public, and that public decision was the constitutional amendment," said Bunda, who voted against H.B. 444.
1998 PUBLIC VOTE
Same-sex marriage was not even on the Legislature's radar in the early 1990s, according to former Democratic lawmaker Dennis Arakaki, who served in the House from 1986 to 2006.
Arakaki is head of the nonprofit Hawai'i Family Forum, a Christian group that is leading opposition to same-sex marriage.
"The Legislature was sort of oblivious to what was going on in the courts. This was all groundbreaking stuff, and Hawai'i was the first state to have to deal with this," he said.
"It sort of caught us by surprise. It was the people who rose up against it that really made us aware of the importance of the issue In the end, it was decided that only a constitutional amendment could remedy the problem."
But lawmakers pulled away from language clearly defining marriage as a union between opposite-sex couples, and instead crafted the amendment to take authority over the issue away from the courts and place it in the hands of the Legislature.
"Now, looking back, we could have settled the issue by just being straightforward with language saying that marriage should be between one man and one woman. That's what other states have done and that seems to have effectively stopped any movement (for same-sex marriage)," Arakaki said.
At the time, lawmakers "just wanted to remedy the problem," he said.
"The main purpose was to keep the courts out of it. I think we did accomplish that back then. It did leave a door open and there are still doubts about what it really does. If we knew then what we know now, it would have been different. Everything was being done for the first time."
The public didn't seem confused about the amendment, which was overwhelmingly approved in 1998, capturing 70 percent of the vote.
Bunda said that while passing the bigger question of gay unions to the public, some lawmakers remained concerned that same-sex partners were denied certain spousal benefits.
"If benefits were a problem, we wanted to make that accommodation," Bunda said of the decision to establish reciprocal beneficiary relationships in 1997. "Ultimately, we knew that's not truly what the (gay rights) activists wanted. But at that point it was satisfactory."
The law allows two unmarried adults who are legally prohibited from marrying to register as a reciprocal beneficiary relationship with the Department of Health. The status is open to gay couples but also, for example, an unmarried child and widowed parent.
Reciprocal benefits include inheritance rights, property rights including joint tenancy, family and funeral leave, hospital visitation rights and standing in health care decisions, the ability to sue for wrongful death, and protection under domestic violence laws.
Not included are parental rights or the right to spousal support, and reciprocal benefit pairs cannot file joint personal income tax returns.
According to the Department of Health, 1,494 pairs are registered as reciprocal beneficiary relationships. The agency does not keep track of how many are same-sex couples.
With passage of the reciprocal benefits law, Hawai'i became the first state to provide some spousal rights to gay partners. But as a number of other states moved to extend far greater rights to same-sex couples over the past decade, similar efforts here failed to generate any momentum in the wake of the acrimonious debate of the 1990s.
'A LOT OF RANCOR'
Dan Boylan, a political columnist and political science professor at the University of Hawai'i-West O'ahu, said passage of the reciprocal benefits law in 1997 seemed to quiet gay marriage supporters, at least in the short term, and lawmakers and the public were weary of the controversy.
"I think a lot of people were bit by the turmoil at the Legislature. This really closed down business in a lot of ways and there was a lot of rancor for three or four years in the 1990s because of this," Boylan said.
Goldberg-Hiller said Democratic lawmakers felt they had lost control of the issue and were overwhelmed by the well-orchestrated, well-funded campaign against gay marriage backed by the Catholic and Mormon churches and Christian evangelicals.
"There was a huge amount of fear that it would spark a conservative movement in Hawai'i," he said. "Nobody wanted to deal with the kind of politics that emerged. Most legislators are trying to avoid too much attention on social issues. The Democrats fear that it might leak over into broader politics, and they don't want to incite this."
Bills that would legalize civil unions were introduced in 2001, 2003 and 2007, but all failed.
Arakaki believes same-sex marriage advocates in Hawai'i were re-energized in 2008 by a Connecticut Supreme Court ruling striking down civil unions, legal in that state since 2005, as a violation of equal protection rights because they offered equal spousal benefits but separate status to gay couples.
The court ordered that same-sex couples be allowed to marry.
Arakaki said he anticipates that same-sex marriage supporters in Hawai'i will pursue the same legal course if civil unions are approved here.
State Sen. Gary Hooser, D-7th, (Kaua'i, Ni'ihau), who voted for H.B. 444, said that after the civil unions bill failed in 2007, supporters were advised to regroup.
"Our message in the Senate to advocates was to skip 2008 and build a broad-based coalition with community groups and come back in 2009," Hooser said.
"The reality of it is that it's hard to do those kinds of things in an election year."
That strategy seemed to be paying off when the House moved quickly during the 2009 session to pass H.B. 444. But the bill stalled in the Senate after it was amended to apply to both same-sex and opposite-sex couples. The last-minute amendment prevented a final vote before the Senate adjourned, and the measure was carried over to 2010 — an election year.
"The advocates organized and they built a broad-based coalition and came back in 2009. The House passed it and the Senate choked and failed to pass it," Hooser said.
"No one really knows why we were not successful in moving it out. Different people had different concerns."
If H.B. 444 is killed this year, the second year of the Legislature's two-year cycle, supporters would have to start from scratch, drafting a new bill, holding new committee meetings and public hearings, and rallying votes from a new slate of lawmakers.
"All we have to do now is vote. All the hearings have been held, all the testimony has been heard," Hooser said.
Boylan said there's something to the notion that hot-button social issues are difficult to tackle during an election year. That's going to be especially true in 2010, he said.
"It's a hard year for Democrats to pass something like that A lot of people are running for new offices in both the House and Senate and you don't want this hanging around your neck; it's too controversial," Boylan said.
Goldberg-Hiller said Massachusetts Republican Scott Brown's victory in last week's special election to fill the late Sen. Edward Kennedy's seat may make Hawai'i Democrats even more skittish about a potential voter uprising in November.
"There are many legislators who would like to see (civil unions) happen because it's a matter of conscience. But they are nervous about the political reaction it will create," he said.
The arguments for and against same-sex marriage have not changed over the years. Opponents say gay unions are contrary to "traditional family values" and widely held religious beliefs, and that popular opinion should hold sway on the issue.
Supporters argue it's a matter of constitutionally guaranteed civil rights that several courts across the country have recognized.
"Supporters feel their equal rights are not respected. This is the new civil rights battle and it's been going on now for 20 years across the country with some victories, usually in the courts," Boylan said. "There are very few at the ballot box but there's a strong feeling that this is important and it should be done."
The most recent official gauge of public sentiment in Hawai'i toward same-sex marriage was the landslide vote approving the 1998 constitutional amendment.
Arakaki said that since then, public opinion seems to have shifted in favor of gay marriage "but very slightly." A Hawai'i Family Forum survey conducted in November by the independent polling firm SMS Hawaii showed 66 percent opposition to same-sex marriage. The poll did not include questions about civil unions.
Alan Spector, legislative affairs co-chairman for the equal rights advocacy group Equality Hawai'i, said recent local and national polls indicate public opinion is changing in a big way.
"What Hawai'i started in the 1990s was a very novel concept that was quite revolutionary in its day," he said. "Today, almost two decades later, the general public has changed and that's a big reason how the bill got passed out of the House with 34 votes last year and passed out of the Senate (last year) with 19 votes."
An Equality Hawai'i survey conducted in March by QMark Research, an independent polling firm, indicated that approximately two-thirds of respondents agreed that same-sex couples should have the same marital rights as opposite-sex couples. The poll did not ask directly about gay marriage.
Nationally, a study conducted last August by the nonprofit, nonpartisan Pew Research Center found that 53 percent of Americans oppose allowing same-sex partners to marry, but 57 percent favor allowing them to enter into civil unions with many of the same rights. The results indicate a softening of attitude toward gay marriage compared with earlier Pew polls.
"Americans have moved forward radically on this issue. We have majority support on national surveys for equal treatment under the law," Spector said. "Where there is a division is on whether or not that equal treatment should include being able to get married."
Boylan warned against assuming that local attitudes toward same-sex marriage have undergone a dramatic shift just because other states have accepted gay marriage and civil unions. He said it's noteworthy that in those states "the courts decided the issue, not the people."
"Even in places where they think it's going to win, it hasn't happened, and where there's been a popular vote, a constitutional amendment is passed that defines marriage as between a man and a women."
Boylan said he sees the ongoing resistance toward same-sex marriage as evidence of the growing influence of religion in politics.
"One of the things we don't talk about much is that we're undergoing another religious revival in this country People are getting religion all over the place," he said.
Boylan said he's not so sure a public vote on same-sex marriage would tally up any differently than it did in 1998, even though Hawai'i touts its image as a diverse and tolerant society.
"We like to say that we are different but that's not necessarily the case when it comes to gender relations and whether marriage can exist between two women or two men. I don't think Hawai'i is there," he said.
Goldberg-Hiller said the fact that H.B. 444 has gained as much support as it has in the Legislature is proof the state is ready to move forward on same-sex unions. During the initial controversy in the 1990s, leaders fretted about being the first state to legalize gay marriage and what the impact might be on tourism and Hawai'i's image, he said.
"Nobody came out for same-sex marriage in the 1990s. They tried to distance themselves for the most part. Almost everybody ran from the issue," he said.
"That's certainly different now. That suggests that kind of recognition (for same-sex couples), at this point, is not that big of a deal. California has had civil unions of the same sort for years. It's not a huge thing."
Arakaki said H.B. 444 has advanced as far as it has because the new generation of Democrats in the Legislature has "a little more liberal bent. And in terms of the party platform (which supports same-sex marriage), we have seen the most changes."
"It's not the party of (John) Burns, (George) Ariyoshi, (Daniel) Inouye or (Spark) Matsunaga," said Arakaki, referring to four bedrock Hawai'i Democrats.
"I don't think this would have happened during their times. They were more traditional. They knew where their grassroots support was."
(For the record, U.S. Sen. Daniel K. Inouye supports "domestic unions," according to his Web site.)
TOUCHING RAW NERVE
Regardless of H.B 444's fate, no one believes the controversy over same-sex unions will fade any time soon.
Arakaki said he can't recall any other issue during his 20 years in office that touched such a raw nerve.
"It's because the evangelical and other churches are a lot more involved. It's become their issue and what they stand for and what they represent. It also speaks to traditional family values that we have here in the Islands and in the country," he said.
Goldberg-Hiller said that if the bill fails, it will continue to "haunt" those lawmakers who view it as a civil rights issue.
"To have separate institutions and a constitution that make distinctions between the gender of partners, that's not a comfortable place to be," he said. "The courts realize this and are disturbed by it."
Bunda said the ongoing California court battle over same-sex marriage likely will reach the U.S. Supreme Court, which has yet to weigh in on the subject.
"Will that be the end of this controversy? I dare say not," he said. "Even that doesn't mean that's the end of it because the voices of the people will have to weigh in at some point."
Time and a generational shift will work in favor of gay marriage, according to Boylan.
"It's not dying out. They're fighting a losing cause," he said of opponents.
"Young people don't care anywhere near as much as middle-age folks and older folks. They are much more accepting of diversity of ethnicity and race and much more accepting of diversity in terms of gender relations and who people fall in love with."