Same-sex marriage in Hawaii
|Legal recognition of
† Not yet in effect
|Baehr v. Lewin (1993)
Baehr v. Miike (1996, 1999)
Constitutional Amendment 2 (1998)
House Bill 444 (2009)
Senate Bill 232 (2011)
Senate Bill 1 (2013)
|LGBT rights in the United States
Recognition of same-sex unions in Hawaii
Reciprocal beneficiary relationships in Hawaii
Same-sex marriage in Hawaii became legal and performable on December 2, 2013. The Hawaii State Legislature held a special session beginning October 28, 2013 and passed a bill legalizing same-sex marriage. Governor Neil Abercrombie signed Hawaii Senate Bill 1 on November 13; same-sex couples began marrying on December 2, 2013.
In addition to the option of marriage, Hawaii also currently allows both same-sex and opposite-sex couples to formalize their relationships legally in the form of civil unions and reciprocal beneficiary relationships. Civil unions provide the same rights, benefits, and obligations of marriage at the state level, while reciprocal beneficiary relationships provide only a limited set of rights. Same-sex marriage was previously not allowed under state law, and lawful out-of-state same-sex marriages were considered civil unions in Hawaii.
Baehr case (1991–1999)
Baehr v. Miike (originally Baehr v. Lewin) was a case decided by the Supreme Court of Hawaii, which found the state's refusal to grant same-sex couples marriage licenses discriminatory. In 1991, three same-sex couples sued Hawaii Director of Health John C. Lewin in his official capacity, seeking to force the state to issue them marriage licenses. After the case was dismissed by the trial court the couples appealed to the state supreme court. In the plurality opinion delivered by Judge Steven H. Levinson in 1993, the court ruled that while the right to privacy in the Hawaii state constitution does not include a fundamental right to same-sex marriage, denying marriage to same-sex couples constituted discrimination based on sex in violation of the right to equal protection guaranteed by the state's constitution. The court remanded the case to the trial court, instructing that "in accordance with the 'strict scrutiny' standard, the burden will rest on Lewin to overcome the presumption that HRS § 572-1 [the state's marriage statute] is unconstitutional by demonstrating that it furthers compelling state interests and is narrowly drawn to avoid unnecessary abridgments of constitutional rights."
In 1996 Judge Kevin K.S. Chang ruled that the state did not meet its evidentiary burden. It did not prove that the state had a compelling interest in denying marriage licenses to same-sex couples and even assuming that it had it had not proven that HRS § 572-1 was narrowly tailored to avoid unnecessary abridgement of constitutional rights. He enjoined the state from refusing to issue marriage licenses to otherwise-qualified same-sex couples. The following day Chang stayed his ruling, acknowledging the "legally untenable" position couples would be in should the Hawaii Supreme Court reverse him on appeal.
On December 9, 1999, the Hawaii Supreme Court, following the passage of a constitutional amendment empowering the Hawaii State Legislature to limit marriage to mixed-sex couples, ruled that "The passage of the marriage amendment placed HRS § 572-1 on new footing. The marriage amendment validated HRS § 572-1 by taking the statute out of the ambit of the equal protection clause of the Hawai'i Constitution, at least insofar as the statute, both on its face and as applied, purported to limit access to the marital status to opposite-sex couples. Accordingly, whether or not in the past it was violative of the equal protection clause in the foregoing respect, HRS § 572-1 no longer is. In light of the marriage amendment, HRS § 572-1 must be given full force and effect." Because the remedy sought by the plaintiffs – access to marriage licenses – was no longer available, this reversed Chang's ruling and remanded the case for entry of judgment in favor of the defendant.
Constitutional Amendment 2 (1998)
Following a 1993 decision by the Hawaii State Supreme Court that found the state's refusal to grant same-sex couples marriage licenses discriminatory, voters in 1998 approved a constitutional amendment granting the Hawaii State Legislature the power to reserve marriage to opposite-sex couples, which made it impossible to challenge the state's ban on same-sex marriage. The state had enacted a statute defining marriage as an institution for "one man and one woman" in 1994, following the first state court decision that questioned the state's denial of marriage licenses to same-sex couples.
Civil unions (2009-2011)
Bills creating civil unions were considered several times, but failed to receive approval in legislative committees before 2009. In 2010, Hawaii House Bill 444 (HB 444), which would have created civil unions for same-sex and opposite-sex couples, passed the Hawaii House of Representatives and the Hawaii Senate. Governor Linda Lingle vetoed it in July 2010.
Following Governor Linda Lingle's veto of the 2009 civil union bill, the American Civil Liberties Union and Lambda Legal filed Young v. Lingle on behalf of six same-sex couples. The suit, while acknowledging that the state has the constitutional authority to limit marriage to opposite-sex couples, asserts that the state constitution still mandates that same-sex couples be accorded equal treatment. The suit was withdrawn on March 31, 2011.
A bill substantively similar to HB 444, Senate Bill 232, was passed on January 26, 2011, by the Senate Judiciary and Labor Committee in a 3-2 vote, and was passed by the full Senate 19-6 on January 28; a modification to the bill was then made in the House of Representatives before passage on February 11 by a vote of 31-19. The Senate passed the revised bill on February 16, and Governor Neil Abercrombie signed it into law on February 23. Civil unions began on January 1, 2012.
417 couples obtained a civil union in the first six months after the law went into effect. Low participation may be the result of technical issues that surround the conversion of a reciprocal beneficiary relationship to a civil union. A bill correcting the transitional issues was signed into law on July 6, 2012. At the end of 2012, over 700 couples had established civil unions. Since Hawaii enacted same-sex marriage in November 2013, civil unions remain an option for both opposite-sex and same-sex couples to access, making Hawaii one of only two states to allow for this practice.
Federal lawsuit (2012)
Ruling in the case of Jackson v. Abercrombie on August 8, 2012, federal District Court judge Alan Kay rejected the claim by two lesbians that Hawaii's failure to provide for same-sex marriage violated the U.S. Constitution's guarantees of due process and equal protection under the Fourteenth Amendment.
The plaintiffs appealed to the Ninth Circuit Court of Appeals and the case is scheduled to be heard on a parallel track with a similar Nevada case before the same court, Sevcik v. Sandoval. Both cases were placed on hold, pending Supreme Court decisions in Hollingsworth v. Perry and United States v. Windsor. Following the legalization of same-sex marriage on November 13, 2013, the appeal was dismissed as moot.
Same-sex marriage legislation (2013)
In January 2013, a bill to legalize same-sex marriage in the state was brought before the legislature, but the bill died without legislative action. By September, after both the U.S. Supreme Court decisions in United States v. Windsor and Hollingsworth v. Perry, as well months of negotiations within the Senate and House Democratic caucuses and with leaders of both chambers of the Legislature, Abercrombie called forth a special session for October 28, with the promise of signing the bill, and the chamber leaderships were confident in having the necessary majority for passage.
The state Senate passed the marriage bill on October 30 by a vote of 20–4, and the House followed by a 30–19 vote on November 8, though not before an extensive 'citizens filibuster' attempt to block the bill's progress. The bill returned to the Senate for approval of House amendments which expanded religious exemptions and the Senate provided final legislative approval on November 12, voting 19–4 for passage to the desk of the Governor. Governor Neil Abercrombie signed the bill on November 13. Same-sex couples began marrying on December 2, 2013.
Hawaii Circuit Court Judge Karl Sakamoto heard a legal challenge to the marriage bill filed by a member of the Legislature, Representative Bob McDermott, who contended that the 1998 constitutional amendment prohibited the Legislature from allowing same-sex marriage. The lawsuit sought to prevent any government official from issuing a marriage license until the question of constitutionality was decided. On November 14, Judge Sakamoto ruled that the constitutional amendment in question did not force the Legislature to define marriage as between one man and one woman. Sakamoto definitively stated in response to the argument that the Hawaii State Legislature had only been given the power to reserve marriage for opposite-sex couples if it chose to do so, that "after all the legal complexity of the court's analysis, the court will conclude that same-sex marriage in Hawaii is legal."
Economic impact of allowing same-sex marriage in Hawaii
A June 2010 study conducted by UCLA indicated that same-sex couples would spend between $4.2 and $9.5 million on their wedding celebrations, if allowed to marry in Hawaii. Out-of-state guests would spend an additional $17.8 to $40.3 million, which would in turn create 193 to 333 new jobs in Hawaii primarily in the events and travel industries. The figures in the study are estimated based on a four-year period.
Public Policy Polling surveyed 568 Hawaii voters from October 13 to 16, 2011, and found that when given a choice between letting same-sex couples marry or not, a plurality of 49 percent wanted same-sex marriage to be legal. Given the option of supporting civil unions, same-sex marriage won 40 percent support and civil unions gained 37 percent support.
A January 2013 Honolulu Civil Beat poll found that 55% of Hawaii voters were in favor of same sex marriage, while 37% were opposed.
An August 2013 QMark Research poll found that 54% of Hawaii residents were in favor of same-sex marriage, while 31% were against.
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- Baehr v. Lewin, 74 Haw. 530, 852 P.2d 44 (1993), reconsideration and clarification granted in part, 74 Haw. 645, 852 P.2d 74 (1993).
- Baehr v. Miike, Circuit Court for the First Circuit, Hawaii No. 91-1394
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- About Reciprocal Beneficiary Relationships, Hawaii State Department of Health
- About Civil Unions, Hawaii State Department of Health