Same-sex marriages & civil unions in Hawaii
2010-APR: Senate passes Bill HB 444.
Groups plan lawsuit. House passes bill.
2010-JAN-22: Bill passes in the Senate by 72% margin:
HR 444 passed the Senate, with a vote of 18 to 7. The vote was 72% in favor. This exceeded the two-thirds
super-majority that would be necessary in order to overcome a possible veto by the
The bill then went back to the House for another
vote. House leaders had earlier said that a veto-proof majority in the Senate would be
among the factors that they would consider in deciding whether to introduce the
bill. They were expected to decide by 2010-JAN-29 whether to move the bill to a
vote in the House. Speaker Calvin Say believed that sufficient votes are present
to pass the bill, but he wants to be certain of a two-thirds majority: 34 of 51
votes. Last year, the bill had passed with 33 Democrats in support, one member
absent, six Democrats and all of the Republicans opposed. 2 However, 2010 is an election year and some legislators might be fearful of negative reaction that social and religious conservatives have promised.
Lt. Gov. James "Duke" Aiona commented that senators were "clearly at odds with
the people of Hawaii." It is difficult to determine whether most Hawaiians are
in favor of civil unions or not. Past and recent polls are unreliable. Polls sponsored by groups that promote civil unions show that most Hawaiians support their side; polls sponsored by religious and social conservatives show the reverse. 2
There is a saying in politics that "momentum is everything." Momentum is clearly on the civil union side. On the order of 65% of American adults favor civil unions; almost 50% favor same-sex marriage. The trend in both cases is in the direction of increasing support.
House lawmakers decided to not act on the bill in January.
2010-FEB-01: Lambda Legal and ACLU prepare lawsuit:
Lambda Legal and the ACLU of Hawaii has prepared a brochure outlining the legal rights to be enjoyed by registered same-sex couples if HB 444 becomes law. 11
Following the inaction by the Hawaiian House, two civil right advocate groups issued a press release:
"Lambda Legal and the American Civil Liberties Union of Hawai'i Foundation (ACLU) today announced they are planning legal action against the state of Hawai'i following last Friday's failure by the Hawai'i Legislature to enact a law providing broad legal rights and duties to the state's lesbian and gay couples."
"The Hawai'i Senate had approved H.B. 444 — a bill to create 'civil unions'— by a veto-proof 18 to 7 majority the week before, sending the bill back to the House for a conforming vote. Although the House had passed H.B. 444 by an emphatic 33 to 17 margin last year, House members used an anonymous voice vote to kill the bill last Friday."
" 'Enough is enough. Infinite patience in the face of discrimination is irresponsible,' said Jennifer C. Pizer, Marriage Project Director for Lambda Legal. 'Our clients suffer every day from unfair taxes and denial of basic legal protections that every family in Hawai'i' needs. Although same-sex couples can't hope today for the full equality of marriage, Hawai'i's constitution still guarantees equal rights and responsibilities to everyone, gay and heterosexual alike. Because the Legislature has ducked its responsibility multiple sessions in a row, we have no choice now but to bring our clients' legal claims to court'."
"Hawai'i's constitution was amended in 1998 to allow the Legislature to restrict marriage to heterosexual couples, which it has done. This means same-sex couples cannot sue for full equality through marriage. Although civil unions are a lesser status, they would provide a full range of state law protections and duties to gay and lesbian couples, such as relief from unfair state taxation of job-provided health insurance for family members, clear duties to pay child support and alimony as spouses must, protection of the family home against nursing home costs as spouses receive, and other vital protections. The current 'reciprocal beneficiaries' system not only fails to provide many basic rights but also sends a harmful message that the state views same-sex couples as less worthy of rights and protections."
" 'Civil unions offer essential protections but they are old news these days,' said Lois Perrin, Legal Director of the ACLU of Hawaii. 'It's shameful that Hawaii again validates discrimination — another blot on our history of diversity and fair treatment of all people. Once again, lawmakers' continued failure to support what's fair and right will leave many constituent families vulnerable under the current reciprocal beneficiary laws'."
"Lambda Legal's Pizer added, 'Thanks to the persistent work of Equality Hawaii and the Human Rights Campaign, the legislators were well aware of how urgently Hawai'i's lesbian and gay residents need the protections of civil unions. Since the reciprocal beneficiary system was created more than a decade ago, it's inflicted a daily 'death-by-a-thousand-cuts' of insults, discrimination and legal vulnerability for gay people in this state. It relegates them to a lower status that withholds vital protections in areas ranging from parenting to financial stability. We simply can't stand by passively observing any more'."
"Lambda Legal will be lead counsel in the case. The ACLU of Hawai'i will be co-counsel and the law firm of Alston, Hunt, Floyd & Ing will serve as cooperating attorneys." 10
However, before the lawsuit could be launched, the House passed the civil unions bill:
2010-APR: Bill passes in the House by 61% margin:
Governor Lingle (R) had earlier urged the house to give priority to other legislation. She indicated that she would not look favorably on HB 444 if it were passed before various economic measures had been dealt with.
In late 2010-APR, as the end of the legislative session approached, the House had dealt with all of the other active bills. In a surprise move on the last day of the legislative session, House Majority Leader Bolake Oshiro (D) moved to reconsider the bill.
Conservative religious groups appear to have been surprised by this development. Rev. Marc Alexander, vicar general of the Honolulu diocese of the Roman Catholic Church issued a press release APR-29 stating:
"We are disappointed, and we hope and pray the governor will veto the bill, both because of the content — which is marriage in disguise — and because it is poor legislation." 3
According to a "Defend civil rights" article on the Care2 web site:
"Passage of the bill, which has been hailed as 'historic', was no small feat though. It required a series of four votes, the first to suspend legislative rules, the second to bring the measure back to the House floor for a vote, the third to approve the Senate amendments on the bill, and lastly a fourth to pass the bill itself."
"The Senate amendments that needed to be voted on included a measure that would grant the right of civil unions to both same-sex couples and opposite-sex couples. This was added to the bill to try and assuage accusations that the bill discriminated against heterosexual couples. That was one of the early criticisms opponents had levied at the bill to try and prevent it passing. The amendments were adopted 31-20." 4
Will the bill be signed into law?
Most of the news sources initially reported that Governor Linda Lingle (R) has 45 business days (until 2010-JUL-06) to decide whether to:
- Sign the bill into law,
- Veto the bill against the will of the Senate and House, or
- Do nothing.
In the latter case, the bill would have automatically became law without her signature.
The 45 day limit appears to be incorrect. She really only had about 38 working days. She was required to send a letter to the Legislature by 2010-JUN-22 listing which bills she plans to veto. If HB 444 was not on the list, then it would have become law on JUL-06. 6
On 2010-MAY-04, Hawaiian TV station KHON-TV reported that she had committed in 2002-SEP to approve a domestic partnership bill if elected. She allegedly said during an interview:
"I continue to oppose same-sex marriage. But I have also said if a Legislature passed a domestic partnership law that I would let it become law; I would not oppose it."
The Star Bulletin reports that she does not recall making such a commitment. 7
At the state Republican convention on 2010-MAY-16, she said that she had still not made up her mind about the civil unions bill. Even though it specifically says that same-sex couples cannot marry, and states that it is not the intent of the Legislature to revise the definition of marriage, Governor Lingle says that the bill is the equivalent of same-sex marriage. She said: "It does appear to me on reading it, that it really is same-sex marriage, but by a different name. But I want to wait and hear people out."
One way of assessing whether civil unions and marriages are equivalent is to ask, say, 100 married adults whether they would be willing to trade in their marriage licenses and registration for civil union documents. I suspect that few would agree.
Alan Spector of Equality Hawai'i, a group that supports the bill, said:
"Civil unions is an alternative legal mechanism to ensure that all couples and families get the same equal treatment under the law. But it's not a marriage."
He referred to a poll taken in 2009- March whose results demonstrated that the public differentiates between civil unions and same-sex marriage. The poll found that support for civil unions is far higher than same-sex marriage. He asked: "... if civil unions and marriage were the same thing, how many married opposite-sex couples would be willing to trade in their marriages for civil unions?"
State Rep. Gene Ward, R-17th (Kalama Valley, Queen's Gate, Hawai'i Kai), who served as chairman of the state GOP convention, called civil unions "a rose by another name. ... Look, if we want to do this, let's go back to the people." He urged a state constitutional amendment on the issue.
Hawaiian Republicans passed a resolution at their state convention urging Lingle to veto the bill. Many of the Republicans at the convention were wearing red stickers that said: "Veto HB444." The resolution states that while people are free to choose their own lifestyles:
"... their choices may not always be good for all of society. ... equal rights are guaranteed no matter a person's gender, race, ethnicity or sexual orientation, no such guarantee exists for the institution of marriage." 7
If the bill had become law, then Hawaii would have been the sixth state to legalize civil unions while prohibiting same-sex marriage. Others are California, Nevada, New Jersey, Oregon and Washington. Six other jurisdictions permit same-sex marriage: Connecticut, District of Columbia, Massachusetts, New Hampshire, Iowa, and Vermont. In all of these jurisdictions, married or civil unionized same-sex couples are denied about 1,100 federal benefits and obligations automatically given to married opposite-sex couples. 8
Governor Lingle vetoed the bill against the strong wishes of both the Senate and House after 45 days deliberation/ There are three obvious paths forward:
- The Democrats in the House could call a special session of the legislature in an attempt to override the governor's veto. There probably would be no problem obtaining a 2/3rds majority in the Senate. However, an override would require turning three votes in the House, which is essentially impossible. Some representatives view civil unions as a civil rights matter and would continue to vote for it. A minority of representatives view civil unions as a threat to opposite-sex marriage and are very unlikely to change their vote.
- Launch a lawsuit to force the Legislature to obey a 1993 ruling of the Hawaiian Supreme Court that requires equal rights and privileges be given to loving, committed opposite-sex and same-sex couples who wish to register their relationship with the government.
- Wait until after the election when they hope to have a Democratic governor who would not veto a duplicate bill.
The first option is a bit of a long shot, because almost everyone -- legislators or common folk -- has firmly fixed beliefs about equal rights for same-sex couples. They rarely change their mind. Legislators who voted against the bill in 2010-APR would probably vote the same way again, even though they would thereby violate their oath of office to uphold the Hawaii'an Constitution. (The Hawaii Supreme Court ruled in 1993 that both opposite-sex and same-sex loving, committed couples who want to register their relationswhip with the government must receive the same benefits.)
Many civil libertarians and the vast majority among the LGBT community would probably hope that the first option is attempted; success would immediately give equal rights and protections to all loving, committed same-sex couples and their children (if any). If the option were attempted and failed, then they could always try the second immediately and might be able to try the third option in 2011 if a Democratic governor were to be elected. 9
The following information sources were used to prepare and update the above
essay. The hyperlinks are not necessarily still active today.
- "Louise," "Hawaii Senate Passes Civil Union Bill (HB 444)," Pam's House
Blend, 2010-JAN-22, at: http://www.pamshouseblend.com/
- Decision by Friday on civil unions bill," Star Bulletin, 2010-JAN-26, at: http://www.starbulletin.com/
- Peter J. Smith, "Hawaii House Sneaks Gay Civil Unions Bill out of the Closet and into Law with Surprise Vote," LifeSiteNews, 2010-APR-30. at: http://www.lifesitenews.com/
- Steve Williams, "Hawaii Lawmakers Approve Civil Unions in 'Historic' Vote - Will the Gov. Sign?," Care2, 2010-APR-30, at: http://www.care2.com
- Mark Niesse, "Hawaii governor to decide on civil unions," Associated Press, 2010-MAY-01, at: http://www.google.com/
- Richard Borreca, "Lingle says she will confer with both sides on civil unions," Star Bulletin, 2010-MAY-15, at: http://www.starbulletin.com/
- Derrick DePledge, "Hawaii governor says bill's civil unions may be same-sex marriage.
Lingle sees similarities to same-sex marriage, 'good points' on both sides," Honolulu Advertiser, 2010-MAY-17, at: http://www.honoluluadvertiser.com/
- "Hawaii Legislature passes bill allowing Civil Unions," The State Column, 2010-MAY-01, at: http://thestatecolumn.com/
- David Shapiro, "Lingle shows a card on civil unions," Honolulu Advertiser, 2010-MAY-18, at: http://volcanicash.honadvblogs.com/
- "Lambda Legal and ACLU Hawaii Announce Lawsuit Against the State." Pam's House Blend, 2010-FEB-01, at: http://www.pamshouseblend.com/
- "The legal rights of civil union partners in Hawai`i (if HB444 bnecomes law," American Civil Liberties Union, 2010-JUN, at: http://data.lambdalegal.org/ This is a PDF file.
Copyright © 2010 by Ontario Consultants on Religious Tolerance
Originally written: 2010-JAN-22
Latest update and review: 2010-JUL-07
Author: B.A. Robinson