Could a lawsuit over whether Hawaii's civil union law goes far enough end with a court order to allow same-sex marriage? It’s happened elsewhere, and now a Hawaii case is being closely watched.At issue is a constitutional challenge in federal court alleging the state's civil unions law does not assure equal protection. Many eyes are on the state's upcoming response, due in two weeks.
Last February, Gov. Neil Abercrombie signed the civil union bill into law
"For me this bill represents equal rights for everyone in Hawaii, everyone who comes here," the governor said then.
And now in just weeks --almost a year to the day of that signing -- the state must answer the federal court as defendant in a lawsuit filed by couples who say a civil union is not an adequate substitute for the rights of marriage. The plaintiffs in the lawsuit are two women denied a marriage license, and another couple who were the first men to enter into a civil union this year.
“I would expect what's going to happen is the state will lay over, lay down, roll over and we're going to have the court impose same-sex marriages," said Sen. Sam Slom, an opponent of civil unions in the law’s legislative phases.
“My own sense knowing Attorney General David Louie is that he would defend it straight-away and straightforward,” said Sen. Clayton Hee, chairman of the Judiciary Committee who supported civil union’s passage last year. “I don't think he's necessarily going to be vigorous in his defense; I think he's going to present a good defense."
The attorney general's spokesperson said the office will have something to say about this in 2 weeks. A high-level meeting was held Friday between the administration and legislative leaders over how the state may respond. The governor's office had no comment, and while House and Senate leadership jointly told KHON2: "We have not received any official notice of action to be taken by the Executive Branch," other lawmakers on various sides of the civil union debate weighed in on why this is a case to watch.
“If the governor is willing to support same-sex marriage, then I guess he would advise the attorney general that they can take that kind of position," said Sen. Brian Taniguchi, who as former Judiciary Chairman leaned against reviving then-stalled versions of the civil union bill. “I would think that they might be open to it. The governor has been supportive of civil unions very strongly."
After Connecticut's legislature passed civil unions, its supreme court in 2008 mandated the right to same-sex marriage after a case similar to the Hawaii challenge. The Connecticut attorney general at the time did not argue the case, and instead sent a deputy in to represent the state. The Hawaii A.G.'s response on behalf of defendants Gov. Abercrombie and Health Department Director Loretta Fuddy is due February 21
“Since they lobbied so heavily for our current law, they should say that it does the job and treats everybody fairly and all that,” Slom said. “But I don't have any hopes for it, because if we look at what the state did in the redistricting and Reapportionment Commission they actually torpedoed that commission,” the senator added, referring to the Attorney General’s office having been tasked with defending the Reapportionment Commission in the state Supreme Court, while the administration had also filed in support of a challenge to the commission’s voting district maps. The court ruled against the commission.
"I expect the attorney general will defend the civil unions law as presently written,” Hee said. “I don't think there's any question the law can stand on its own merits, but the lawsuit itself is not about the merits of the law, but rather the desires of a couple that feels the law is not sufficient and that they're entitled to greater privileges."
The suit itself recognizes the progress made under civil unions but says: "The Hawaii State Legislature...is powerless to force such equivalent treatment under Federal law or private employee benefit plans."
In the pending Hawaii case, plaintiffs Natasha Jackson and Janin Kleid were denied a marriage license and sued in December saying that's a constitutional violation of due process and equal protection. Late last month Gary Bradley and his partner -- the first male couple to enter into a Hawaii civil union -- joined as plaintiffs. The matter will be heard before U.S. District Court Judge Alan Kay.
“The House when they first passed it over, they had passed a version that was similar to what Connecticut had prior in terms of civil unions,” Taniguchi said. “There was some concern that because we passed a law similar to what Connecticut had -- and the Connecticut Supreme Court had come in and imposed it [same-sex marriage] -- that would be the path that same-sex marriage advocates would want to follow here, and so we tried to make it a little different. The legislature anticipated some of this, we were aware that people would sue on an equal protection basis, even though we did civil unions, so it's not a surprise.”
In Connecticut, subsequent to the court ruling mandating same-sex marriage, lawmakers replaced existing laws with gender-neutral references to marriage, civil unions were no longer provided, and past civil unions automatically converted to marriages.
“If the courts were to order same-sex marriage in effect the legislature would have to give that serious consideration,” Hee said. “Given the timelines imposed within the legislative session I'm not sure it would be possible to do so this particular year, but that's putting the cart in front of the horse. We'd wait for the courts to decide.”
“I don't think there's any question the debate last year significantly subsided from the previous year,” Hee added. “It certainly appears that given the number of laws that have been enacted for same-sex couples nationwide, it appears that people are becoming more accepting of same-sex couples.”
