Same-sex marriages (SSMs) & civil unions in Hawaii
2011-NOV to 2012-JAN: A same-sex couple is
marriage license and sue in federal court.
2011-NOV-18: Lesbian couple applies for marriage license:
Natasha Jackson and Janin Kleid are a couple who have been in a committed relationship for four years. They applied for a marriage license from the state Health Department. In accordance with the current marriage law in Hawaii, they were refused on the basis of their gender; they are both women.
On 2011-DEC-07, they launched a Federal lawsuit in U.S. District Court to force the state to allow them to marry. It is titled Jackson v. Abercrombie. Defendent Abercrombie is named in his capacity as governor of Hawaii. The couple were in contact with pro-equality LGBT groups, but decided to launched this case on their own. Their claim is that their due process and equal protection rights guaranteed by the 14th Amendment to the U.S. Constitution have been violated. As expected, the defendants are: Governor Neil Abercrombie and Loretta J. Fuddy, director of the state's health department.
Plaintiff Natasha Jackson said:
"We really want the chance to get married. We want the chance to have the legal right as well as the social recognition of us being in a committed relationship. ... I was looking at stuff on Google because that's what we do in our generation and there are 1,138 [federal] rights to marriage, where there aren't as many to civil unions. They're just different they're completely different."
Their pro-bono lawyer, John J. D'Amato said:
"Our clients want to marry. They want the state to tell us why they can't marry. The want the state to tell us what is it about being two women prevents them from marrying. ... It would just require a judge to look at that law and say yeah plaintiffs you're right it does violate your rights to due process and equal protection under the federal constitution. The state's denying Janin and Natasha the right to marry deprives them of a fundamental right and is unjustly discriminatory."
The lawsuit stated that during the four-year relationship, they:
"... have experienced their share of vicissitudes, including serious health problems and the loss of jobs, but they have remained true to one another and steadfast in their relationship. They pool their resources to share expenses and have been each other's main source of emotional support." 1
The couple could have waited until 2012-JAN and then qualified for a civil union. However, that would not provide all of the "rights, benefits, protections and responsibilities" of marriage. Perhaps the most important right that they would not have would be the ability to refer to their union as a marriage. In their case, an important right would be to access federal benefits. Recently, Jackson was unable to insure Kleid under the Consolidated Omnibus Budget Reconciliation Act (COBRA), a federal law that allows terminated employees to continue in their employer's health care plan.
Donalyn Delacruz, a spokesperson for Governor Abercrombie said the state has no comment on the lawsuit because it not yet seen a copy. She mentioned that the Health Department is busy organizing to handle the rush of applications for civil unions law which became available on New Year's Day, 2012. 3
On 2011-DEC-08, Governor Abercrombie (D) said:
"If they want to pursue that through the legal channels that's fine but I work through the legislative channels. I think that everyone is very very happy with our civil union's law. I'm going to put it into effect. I signed it. We're moving forward as quickly as we can and this January we'll be putting it into effect. If there are changes to be made we'll take it up in the course of the legislative sessions to come. I'm very very pleased with where we are, where we're going and where we're headed."4
Even if they were able to marry in 2011, COBRA would not have insure Jackson's partner because, at the time, the Defense of Marriage Act (DOMA) prohibited the federal government from recognizing valid, legal marriages of same-sex couples legally solemnized in any state of the union. 2 By 2013, DOMA was on its last legs. It had already been declared unconstitutional by numerous federal District Courts and two U.S. Circuit Courts of Appeal. On 2013-JUN-26, the U.S. Supreme Court ruled that Section 3 of DOMA was unconstitutional. This meant that same-sex couples can now access over a thousand federal marriage benefits, but only if they are married. This raised the stakes for Natasha and Janin and about 70% of other same-sex couples across the U.S. who live in states that prohibit same-sex marriage.
2012-JAN-11: Article in Honolulu Weekly:
Shantel Grace wrote an article for the Honolulu Weekly called "I Now Pronounce You Not Married! Is there anything civil about civil unions?" She quoted the plaintiffs' lawyer John J. D'Amato:
"The problem with civil unions is that, for all purposes of state law, it gives you everything, theoretically, that marriage gives you. The problem is that you don‚t have a choice, if you are a same-sex couple, as to whether you have a civil union or a marriage. You can only have a civil union."
[Back in the 1950s] If you were in a segregated state, and you were African American ... the bus took you to the same place, the seats were all the same, but you couldn‚t sit in the front of the bus. And that‚s what this civil union law says. If you‚re lesbian or gay, you‚re going to sit in the back of the bus. It‚s going to take you to the same places under state law that marriage will take you, but you can‚t call yourself married." 5
Another disadvantage of civil unions compared to marriage is that same-sex couples have no legal recourse to federal discrimination against them. D‚Amato said:
"For example, if your employer provides health insurance coverage for spouses, and you cover your spouse, the money that the employer spends on your spouse‚s coverage is not income to you for federal income tax purposes. It‚s excluded from your income, and you don‚t have to recognize it as wages. Any money that you put in to cover your spouse, as an employee, you could do on a pre-tax basis and also exclude that from wages. [In contrast] If you‚re trying to cover your civil unions partner, you can‚t do that on a pre-tax basis unless the person is a tax dependant and I can tell you that employers aren‚t going to make those determinations [under civil union guidelines]. What they‚re going to do is treat coverage given to civil unions partners on an after tax basis, even though it‚s income to the employee, and that‚s a substantial amount of money." 5
Another example of discrimination against a couple in a civil union is that transfers of property to a marriage partner aren‚t taxable, while transfers to a civil union partner are federally taxed. Other rights and benefits include insurance breaks, sick leave, Social Security survivor benefits, bereavement leave, and assumption of a spouse‚s pension. These represent significant economic differences between marriages and civil unions.
Jackson experienced one form of discrimination personally. She was laid off, lost her health insurance and had to join COBRA, a federal program, to obtain coverage. But her partner could not be added to her program even if they were married because of her gender.
Under the federal Defense of Marriage Act (DOMA) even if a same-sex couple were married under state law, they still would not have obtain these benefits at the time that they launched their lawsuit. They would have had to sue the federal government to obtain them. However many couples did just that and were routinely winning their cases because DOMA has regularly been ruled to be unconstitutional. It wasn't until mid-2013 that the U.S. Supreme Court declared that Section 3 of DOMA was unconstitutional and that the federal goverment had to treate same-sex and opposite-sex married couples in the same way.