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Same-sex marriages in Hawaii

Continued activity during 1996

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Proposed Constitutional Amendment

Every decade, in years which end in "6", voters in Hawaii have the opportunity to call for a Constitutional Convention (a.k.a. "ConCon"). In past years, the convention has been narrowly defeated. But on 1996-NOV-5, they voted in favor (sort of). The final tally was 163,869 in favor; 160,153 opposed; 45,247 blank votes; 90 invalid votes. This is a key vote, because a convention was expected to propose a constitutional amendment to outlaw same-sex marriages. Since about 70% of the Hawai'ian public was currently opposed to equal rights at the time for gays and lesbians in this area, such an amendment would probably pass. On the other hand, if ConCon were postponed until late in the next decade, say 2010, then same-sex marriages might by then have been a fact of life for almost a decade, and public opposition might have melted away.

There was initially some debate about whether the blank votes should be included in the total number of votes cast. If they count, then the resolution does not pass, because only a minority of votes were in favor. The Attorney General ruled that they do not count, and cited a statute passed in the mid 1980's. But there appeared to be ample grounds for claiming that that statute is unconstitutional.

Several groups favored a ConCon, including county governments and groups opposed to same-sex marriage. Other groups opposed it, including government employees' unions, civil rights groups, feminist groups, native Hawai`ian groups, and the Governor. If a ConCon had been held, its delegates would probably have been elected during 1998-NOV; the convention would have been held in mid-2000, and amendments voted upon in the 2000-NOV general election. Debate over an amendment to the constitutional which would ban same-sex marriages would probably have formed a major part of the convention.

On 1996-NOV-25, The Hawai`i State AFL-CIO, an umbrella group of unions representing about 70,000 private and public workers, filed a lawsuit with the Hawai`i Supreme Court to stop the Constitutional convention. Lawyer Herbert R. Takahashi, claimed that the blank votes should have been included in the tally. He said that the language in the constitution referring to the question of convening a constitutional convention uses the words "ballots cast," as distinguished from "votes cast" or "votes tallied." "And we believe that use of the word [ballots cast] communicates very clear intent that you must count all the ballots." Supreme Court Judge C.J, Moon issued a ruling on 1997-MAR-24 in favor of the plaintiffs. He decided to include the blank and spoiled ballots, thus canceling a ConCon for this decade.

The decision of the Circuit Court - and reactions

On 1996-DEC-3, Judge Kevin Chang issued a 46 page ruling (some sources say 50). He determined that the State of Hawaii failed to show a "compelling state interest" to justify the continuation of the ban against same-sex marriages. He wrote:

"There certainly is a benefit to children which comes from being raised by their mother and father in an intact and relatively stress-free home. However, there is a diversity in the structure and configuration of families" today, including single parents, divorced parents, stepparents, adoptive parents and gay and lesbian parents. "The evidence presented by [the] plaintiffs and defendant establishes that the single most important factor in the development of a happy, healthy and well-adjusted child is the nurturing relationship between parent and child."

Same sex marriages suddenly became theoretically legal in Hawaii. Attorney General Rick Eichor said he was "very disappointed" by the ruling and agreed the opinion makes it difficult for the state to win on appeal to the state Supreme Court.

Some positive comments on the ruling were:

bullet Dan Foley, the lawyer for three homosexual couples who brought the suit said "I couldn't have gotten more; we got 100%"

bullet Ninia Baehr, one of the plaintiffs, said "I thought I would cry if we lost, but we cried for winning"

bullet The editorial page of the Honolulu Advertiser commented that:

"Judge Chang's ruling is contrary to public opinion--70 percent of Hawai`i voters oppose same-sex marriages. But it was the right decision. And it's a decision that should make the majority carefully rethink their position. Hawai`i has a history of leadership in civil rights, demonstrated when it pushed for equal rights for women and legalized interracial marriages. It is time for Hawai`i to move forward on this civil rights issue, too.

bullet Matt Coles of the American Civil Liberties Union said:

"This is the first court in the United States that has ever said it is unconstitutional to deny gay men and lesbians the right to marry...It's the first time a respected, important institution has...acknowledged that lesbian and gay relationships are functionally the equivalent of heterosexual relationships."

bullet The Lambda Legal Defense and Education Fund said that 15 states have passed legislation that bars married homosexual couples from having their marriages recognized, or collecting benefits in their state; 14 were considering legislation; 17 considered such bills but rejected them. That leaves 4 who have not considered this type of legislation at all.

bullet Alan Klein, spokesperson for the Gay and Lesbian Alliance Against Defamation said that the decision:

"...sends a message to all Americans that discrimination based on sexual orientation should not be tolerated...There is a hole in the dam now and I don't think you're going to be able to stop the forces of tolerance at this point"

bullet Robert Bray of the National Gay and Lesbian Task Force in San Francisco said that the Hawaii court "has done what the U.S. Congress and President Clinton will not do -- uphold the principles of fairness and equality for gay and lesbian people, especially those of us in long-term relationships."

bullet David Smith of Human Rights Campaign said "This is a tremendous victory, but the battle's not over. A major bridge has been crossed, but the battle will continue."

bullet Willie Brown, mayor of San Francisco, when interviewed by The Advocate, said:

"You would think that those who are always talking about family values would want to create an environment of permanent relationships for people of the same sex. But they're not advocating family values. They're advocating their values....I still get this s--t full-time...They just are haters, period."

bullet At a town meeting in Olympia WA on 1997-JAN-8, Governor Mike Lowry said:

"We need to make it clear that the state of Washington stands against discrimination. Marriage should be available to people regardless of gender, and to do other than that is sex discrimination - discrimination based on gender...I think this is a simple issue - the state of Washington benefits from strong families. Strong families are strengthened by the obligations and benefits conferred by civil marriage license. That is true between loving people when they choose to marry, regardless of gender."

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bullet Vanessa Chong, coordinator of a coalition of groups, including the American Civil Liberties Union and the Honolulu Chapter of the Japanese-American Citizens League, said Chang's decision followed the tradition here of tolerance and of recognizing of the rights of all members of the community. "I think it's no accident that this case occurred in Hawai`i.

bullet Chris Purdom, of the Interfaith Working Group said:

"We are thrilled by the decision in Hawaii ordering the state to issue marriage licenses to same-gender couples. This is a milestone event for gay rights, reproductive freedom, and the separation of church and state."

bullet Carol Moseley-Braun, US Senator (D, IL) said: "People that want to get married should do that. I don't see any reason why it has to be gender-specific...Whatever gender decides to hitch up should be their business."

bullet Deb Price, a syndicated columnist said:

"It's encouraging to see how far our fast-paced civil rights movement has traveled in four years. When candidate [Bill] Clinton was asked about gay marriage [in 1992], it was a throwaway question. His negative reply sounded no alarms. Gay marriage seemed a century away. What changed was our prospects, not Clinton's stance. He's just out of step with a future that's arriving more quickly than most of us had ever dreamed."

bullet Melissa Etheridge, a rock singer and lesbian said to Newsweek:

"If they don't want me to get 'married,' if that's bugging 'them'-- fine. But I do believe that as an American citizen, a law-abiding, taxpaying -- major taxpaying -- citizen, that I should be allowed the same rights, the same pursuit of happiness that every other citizen enjoys. ... Whatever they want to call it. As long as we have the same legal benefits and protections for me, and for my family. That's all.

bullet Frank Rich, a columnist from the New York Times wrote or said that the "principal House sponsor [of the DOMA federal anti-gay-marriage law], Bob Barr of Georgia...has been married three times -- which raises the question of why the act doesn't contain a three-strikes-and-you're-out provision."

On the other hand, a one Muslim group and many Fundamentalist Christian groups had negative comments on the ruling:

bullet Robert Knight of the Family Research Council said that "This [ruling] is a slap in the face of the Hawaiian people and Americans everywhere...It ushers in a new area of lawlessness"

bullet The Rev. Lou Sheldon's Traditional Values Coalition said the judge's action was "judicial tyranny...They have stolen marriage." Opposition to gay union is the "the central moral issue of our civilization." On another occasion, he said "It's our Pearl Harbor."

bullet Ralph Reed of the Christian Coalition said: With society in "a moral crisis...this is hardly the time to be tinkering with the definition of marriage."

bullet Father Marc Alexander of the Hawai`i Catholic Conference said "We think Judge Chang made a big mistake...No decision by a judge can change reality - the truth - that marriage is for a man and a woman."

bullet Don LeFevre, of the Church of Jesus Christ of Latter-day Saints (Mormons) said: "Scripture teaches that marriage between a man and a woman is ordained of God, and to alter that sacred union is to lay an axe to the root of civilization's well-being and disqualify society for the blessings, stability, and happiness promised by our Creator."

bullet Abdurahman Alamoudi of the American Muslim Council said "In Islam, homosexuality is a major sin...As a human, I feel for people individually, but I'm bound by my religion and to legislate in favor of this lifestyle is against [the teachings of] my religion."

bullet Ronald Sider, of Evangelicals for Social Action (ESA), said that the decision "defines marriage solely in terms of contractual convenience...Redefining marriage in this way makes the institution of marriage arbitrary, contentless and ultimately meaningless."

bullet The Rev. David Owens, presiding bishop of the Church of God in Christ, (a predominantly black Pentecostal denomination) said the ruling will be "a tremendous detriment to the rearing of children who traditionally have been raised according to biblical principles - and that is a mother and a father sharing a home."

Some liberal/progressive religious groups supported the ruling:

bullet Fred Lipp, a Unitarian Universalist minister in Portland Maine said that the ruling is "a major step forward...It's based on a fundamental understanding that human beings who are in love want a commitment and should be allowed to marry."

bullet Rabbi David Saperstein, director of the Religious Action Center of Reform Judaism said: "The fundamental assertion of the Bible that all are created in the image of God requires this...Every time the courts have asserted the fundamental rights of various groups throughout our history who have been the victims of always creates a pattern of tolerance."

bullet Rev. Nancy Wilson, vice-moderator of the Universal Fellowship of Metropolitan Community Churches (MCC) said that her denomination has churches in Hawaii "standing by" to perform legal weddings. Citing over 200 state rights associated with marriage, she added: This is about equal rights, not special rights."

bullet Kim Byham, former national president of Integrity, a gay and lesbian Episcopal church group agreed that the Hawaii decision "certainly moves along the issue of acceptance (of gays and lesbians) in our society." In addition, Byham said he hopes the ruling will move the United States "toward the European system of separating the secular and religious aspects of marriage."

The state refused to recognize the court's decision until it was formally filed. Several gay and lesbian couples applied for a marriage license on 1996-DEC-4 and were refused. The attorney general obtained a stay of Judge Chang's court order, pending a decision by the state Supreme Court.

On 1997-DEC-19, the Hawai`i Supreme Court upheld a lower court decision which prevented eight state lawmakers from intervening in Kevin Chang's circuit court trial. Judge Chang had refused to allow state Representatives Felipe Abinsay Jr., Michael Kahikina, Ezra Kanoho, Colleen Meyer, David Stegmaier, William Swain, Romy Cachola and Gene Ward to argue against same-sex marriage. The eight had appealed the decision.

The plaintiffs, requested that the court issue a decision as soon as possible. The state asked that the decision be delayed until after the 1998-NOV-3 election and referendum. The latter request was denied.

Copyright 1996 to 2009 by Ontario Consultants on Religious Tolerance
Originally written: 1997-JUL-11
Latest update and review: 2013-NOV-15
Author: B.A. Robinson

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