Same-sex marriage in Hawaii

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Baehr v. Lewin (1993)
Baehr v. Miike (1996, 1999)
Constitutional Amendment 2 (1998)
House Bill 444 (2009)
Senate Bill 232 (2011)
Hawaii Marriage Equality Act (2013)

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Same-sex marriage in Hawaii
Reciprocal beneficiary relationships in Hawaii
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Same-sex marriage in Hawaii has been legal since December 2, 2013. The Hawaii State Legislature held a special session beginning October 28, 2013, and passed the Hawaii Marriage Equality Act legalizing same-sex marriage. Governor Neil Abercrombie signed the legislation on November 13, and same-sex couples began marrying on December 2. Hawaii also 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 a more limited set of rights.

Hawaii's denial of marriage licenses to same-sex couples was first challenged in state court in 1991, and the plaintiffs initially met with some success. But Hawaii voters modified the state constitution in 1998 to allow the legislature to restrict marriage to mixed-sex couples. By the time the Supreme Court of Hawaii considered the final appeal in the case in 1999, it upheld the state's ban on same-sex marriage.

When Hawaii's civil union status took effect at the start of 2012, same-sex marriages established in other jurisdictions were considered civil unions in Hawaii.

A federal lawsuit initiated in 2011, before Hawaii legalized same-sex marriage, is ongoing in the Ninth Circuit Court of Appeals. The plaintiffs seek to have a lower court ruling that upheld the state's ban on same-sex marriage overturned.

Legal history[edit]

Baehr case (1991–1999)[edit]

Baehr v. Miike (originally Baehr v. Lewin) was a case decided by the Supreme Court of Hawaii, which initially 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."[1]

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.[2] 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.[3]

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.[1]

Constitutional Amendment 2 (1998)[edit]

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.[4] 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.[5]

Civil unions (2009-2011)[edit]

Bills creating civil unions were considered several times, but failed to receive approval in legislative committees before 2009.[4] 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.[6] Governor Linda Lingle vetoed it in July 2010.[7]

Following 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.[8] The suit was withdrawn on March 31, 2011.[9][10]

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,[11] and was passed by the full Senate 19-6 on January 28;[12] a modification to the bill was then made in the House of Representatives before passage on February 11 by a vote of 31-19.[13][14] 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.[15]

417 couples obtained a civil union in the first six months after the law went into effect.[16] 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.[17][18] At the end of 2012, over 700 couples had established civil unions.[19] 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 three states (Illinois and New Jersey being the other two; California and the District of Columbia which legally recognize same sex marriages both also allow same sex domestic partnerships providing many of the benefits of marriage) to allow for this practice.[20]

Jackson case (2012-2014)[edit]

Jackson v. Abercrombie
Hawaii-seal.png
Civ. No. 11-00734
United States District Court for the District of Hawaii
Date decided August 8, 2012
Citations 884 F. Supp. 2d 1065
Judge sitting Alan C. Kay U.S.D.J.
Case history
Subsequent actions Appealed sub. nom. Jackson v. Fuddy, No. 12-16995, 12-16998 (9th Cir.)
Case holding
Defendants' motion for summary judgment granted, plaintiff same-sex couples' motion for summary judgement denied; Hawaii's same-sex marriage ban upheld.

On December 7, 2011, a same-sex couple filed suit in U.S. district court to obtain marriage licenses in Hawaii, which at that time denied licenses to such couples. The state's denial was based on its Marriage Laws: Article 1 § 23 of the Hawaii Constitution, which leaves any decision on same-sex marriage to the state legislature, along with (since repealed) Hawaii Statute § 572-1, which defined marriage only "between a man and a woman." The initial suit was styled Jackson v. Abercrombie, after first-named-plaintiff Natasha Jackson and first-named-defendant Hawaii Governor Neil Abercrombie. On January 27, 2012, an amended complaint added plaintiff Gary Bradley, one partner in a same-sex civil union, who wanted to marry but thought it futile to apply. The plaintiffs argued that the Marriage Laws violated the Due Process Clause and Equal Protection Clause of the U.S. Constitution. Governor Abercrombie agreed with the plaintiffs that the ban violated both clauses of the U.S. Constitution, but the state's Director of Health, Loretta Fuddy, was allowed to defend the ban.[21]

Order in Jackson v. Abercrombie[edit]

In an order issued on August 8, 2012, U.S. District Court Judge Alan Kay rejected the plaintiffs' claims and granted defendants' motion for summary judgment, upholding Hawaii's ban on same-sex marriage. Judge Kay's ruling became the first court decision to cite the "New Family Structure" research of Mark Regnerus, research discredited by the American Sociological Association.[22][23][24]

Appeal as Jackson v. Fuddy[edit]

The plaintiffs in Jackson appealed Judge Kay's ruling to the Ninth Circuit Court of Appeals, now restyled as Jackson v. Fuddy.[25] The appeal was initially scheduled to be heard on a parallel track with a similar Nevada case before the same court, Sevcik v. Sandoval until both cases were placed on hold, pending Supreme Court decisions in two other same-sex marriage cases, Perry and Windsor. Those cases were resolved on June 26, 2013, and on November 13, Hawaii enacted the Hawaii Marriage Equality Act, ending its ban on same-sex marriage.

Despite that legislation, the plaintiffs have not withdrawn their suit as moot, but have pressed their appeal seeking to have the lower court's order overturned. The Ninth Circuit has scheduled argument for September 8, 2014, along with Sevcik and another related case, Latta v. Otter, before Judges Stephen Reinhardt, Ronald M. Gould, and Marsha S. Berzon.[26]

Same-sex marriage legislation (2013)[edit]

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.[27]

The state Senate passed the marriage bill on October 30 by a vote of 20–4,[28] and the House followed by a 30–19 vote on November 8,[29][30] though not before an extensive 'citizens filibuster' attempt to block the bill's progress.[31] 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.[32] Governor Neil Abercrombie signed the bill on November 13,[33] and same-sex couples began marrying on December 2, 2013.[34] 526 same-sex couples applied for marriage licenses in the first two weeks after the law went into effect.[35]

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.[36][37] 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[37] and that it only gave the Hawaii State Legislature the power to reserve marriage for opposite-sex couples if it chose to do so, and that "after all the legal complexity of the court's analysis, the court will conclude that same-sex marriage in Hawaii is legal."[38] The court granted the state's motion to dismiss the lawsuit on January 29, 2014.[39]

Economic impact of allowing same-sex marriage in Hawaii[edit]

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.[40]

A July 2013 study conducted by the University of Hawaiʻi estimated an additional $217 million in visitor spending over the following three years if Hawaii legalized same-sex marriage.[41]

Public opinion[edit]

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.[42]

A January 2013 Honolulu Civil Beat poll found that 55% of Hawaii voters were in favor of same sex marriage, while 37% were opposed.[43]

An August 2013 QMark Research poll found that 54% of Hawaii residents were in favor of same-sex marriage, while 31% were against.[44]

References[edit]

  1. ^ a b 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).
  2. ^ Baehr v. Miike, Circuit Court for the First Circuit, Hawaii No. 91-1394
  3. ^ Oshiro, Sandra (December 6, 1996). "Hawaiian judge puts same-sex marriage ruling on hold". The Nation. Reuter. p. A12. Retrieved August 18, 2010. 
  4. ^ a b Niesse, Mark (February 22, 2009). "Hawaii is latest civil unions battleground". Associated Press. Archived from the original on March 1, 2009. Retrieved March 1, 2009. 
  5. ^ Gross, Jane (April 25, 1994). "After a Ruling, Hawaii Weighs Gay Marriages". New York Times. Retrieved August 27, 2013. 
  6. ^ "Hawaii Legislature OKs historic civil unions bill; governor now must decide". The Honolulu Advertiser. April 29, 2010. Archived from the original on April 30, 2010. Retrieved April 30, 2010. 
  7. ^ Sample, Herbert A. (July 7, 2010). "Hawaii governor vetoes same-sex civil unions bill". MSNBC. Retrieved August 27, 2013. 
  8. ^ "Gay couples sue Hawaii". Advocate.com. July 29, 2010. Retrieved July 29, 2010. 
  9. ^ ACLU of Hawaii (March 31, 2011). "Lambda Legal and ACLU Conclude Lawsuit Seeking Civil Unions". Retrieved November 13, 2013. 
  10. ^ Lambda Legal. "Young v. Lingle". lambdalegal.org. Retrieved November 13, 2013. 
  11. ^ "Civil unions bill advances out of Senate committee". Honolulu Star Adviser. January 24, 2011. 
  12. ^ Reyes, B.J. (January 29, 2011). "Civil unions bill moves on". Honolulu Star-Advertiser. Retrieved November 13, 2013. 
  13. ^ Associated Press (February 11, 2011). "Hawaii House passes same-sex civil unions bill". KHON 2. 
  14. ^ BJ Reyes (February 11, 2011). "House approves civil unions bill in 31-19 vote". Honolulu Star-Advertiser. 
  15. ^ Levs, Josh (January 2, 2012). "Two more states allow same-sex civil unions". CNN. Retrieved August 27, 2013. 
  16. ^ Akana, Paula (July 5, 2012). "Civil union marriage not valid". KITV (Television production) (Hearst Television). Retrieved November 13, 2013. 
  17. ^ Hawaii State Legislature (July 6, 2012). "Governor's Message No. 1370". Retrieved November 13, 2013. 
  18. ^ Hawaii State Legislature (2012). "HB2569 (2012) Archived Status Page". Retrieved November 13, 2013. 
  19. ^ Stewart, Colin M. (December 16, 2012). "Hawaii sees hundreds of civil unions". Hawaii Tribune-Herald (Stephens Media). Retrieved November 4, 2013. 
  20. ^ Culhane, John (November 8, 2013). "Gay Marriage Is Booming. Where Does That Leave Civil Unions?". Slate.com. Retrieved November 13, 2013. 
  21. ^ Jackson v. Abercrombie, 884 F.Supp.2d 1065 (August 8, 2012). "Order Granting Motion for Summary Judgment". Google Scholar. 
  22. ^ Blair, Chad (August 8, 2012). "Hawaii Judge Upholds Same-Sex Marriage Ban". Honolulu Civil Beat. Retrieved August 9, 2012. 
  23. ^ Bartlett, Tom (July 26, 2012). "Controversial Gay-Parenting Study Is Severely Flawed, Journal's Audit Finds". Chronicle of Higher Education. Retrieved August 12, 2012. 
  24. ^ Marrigan, Haurwitz, Tara, Ralph K.M (July 27, 2012). "UT researcher's study on children of gay parents should not have been published, audit says". statesman.com. Retrieved August 13, 2012. 
  25. ^ The appeal was docketed as No. 12-16995 for plaintiff Jackson and No. 12-16998 for plaintiff Bradley.
  26. ^ Ninth Circuit Court of Appeals: Oral Argument Notice, accessed September 1, 2014
  27. ^ "Gov. Abercrombie Calls Special Session on Marriage Equity". Governor of Hawaii. September 9, 2013. 
  28. ^ Osher, Wendy (October 30, 2013). "Breaking: Same-Sex Marriage Bill Passes Senate in 20-4 Vote". MauiNow.com. Retrieved October 30, 2013. 
  29. ^ "House votes to pass Marriage Equality Bill". Hawaii 24/7. November 6, 2013. Retrieved November 7, 2013. 
  30. ^ "State House advances same-sex marriage bill after long session". Honolulu Star-Advertiser. November 7, 2013. Retrieved November 7, 2013. 
  31. ^ Lazo, Alejandro (November 9, 2013). "In Hawaii, 'Citizens' Filibuster' Targets Gay-Marriage Bill". Wall Street Journal. Retrieved November 13, 2013. 
  32. ^ Ohlheiser, Abby (November 12, 2013). "Hawaii Legislature Sends Same-Sex Marriage Bill to the Governor's Desk". The Atlantic Wire. Retrieved November 13, 2013. 
  33. ^ "Abercrombie signs same-sex marriage bill into law". Honolulu Star-Advertiser. November 13, 2013. Retrieved November 13, 2013. 
  34. ^ "First same-sex couples marry in Hawaii". Advocate.com. December 2, 2013. Retrieved December 7, 2013. 
  35. ^ Kobayashi, Ken (December 24, 2013). "Lawyers ask rejection of suit against same-sex marriage law". Honolulu Star-Advertiser. Retrieved December 24, 2013.  (subscription required)
  36. ^ Muskal, Michael (November 8, 2013). "Hawaii judge says he is open to hearing case on same-sex marriage". Los Angeles Times. Retrieved November 15, 2013. 
  37. ^ a b Garcia, Oskar (November 14, 2013). "Hawaii judge rejects lawmaker's bid to overturn states' new gay marriage law". LGBTQ Nation. Associated Press. Retrieved November 15, 2013. 
  38. ^ Karlamangla, Soumya (November 14, 2013). "Hawaii judge refuses to block law permitting same-sex marriage". Los Angeles Times. Retrieved November 15, 2013. 
  39. ^ DePledge, Derrick (January 30, 2014). "Challenge to marriage equality law rejected". Honolulu Star-Advertiser. Retrieved January 30, 2014.  (subscription required)
  40. ^ Goldberg, Naomi G.; Sears, Brad; Badgett, M.V. Lee (June 2010). "Potential Impact of HB444 on the State of Hawaiʻi". williamsinstitute.law.ucla.edu. Los Angeles: The Williams Institute. Retrieved January 5, 2014. 
  41. ^ Lincoln, Mileka (July 25, 2013). "UH: $217M in tourism if gay marriage in Hawaii". Hawaii News Now (Raycom Media). Retrieved November 7, 2013. 
  42. ^ Public Policy Polling: "Hawaii wants Same-Sex Marriage," October 21, 2011. Retrieved October 21, 2011
  43. ^ "Poll: Hawaii Voters Support Allowing Gay Couples To Marry". Honolulu Civil Beat. Peer News. January 28, 2013. Retrieved November 7, 2013. 
  44. ^ "Statewide same sex marriage poll indicates greater support, less opposition". Hawaii News Now. Raycom Media. August 9, 2013. Retrieved November 7, 2013. 

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