Calling for special session could open can of worms

Figuring out Gov. Neil Abercrombie and the Legislature’s stand on gay marriage is more of a Zen koan than a political platform.

How else can you explain a governor who can refuse to support Hawaii’s marriage law in federal court, yet countenance his Department of Health representing the state’s position proscribing marriage as only between a man and woman?

"I argue the Constitution’s equal protection clause requires same-sex marriage in all states, including Hawaii," Abercrombie said in a statement released in June after the U.S. Supreme Court ruled that married same-sex couples had a legal right to federal benefits.

The key is that marriage is up to the state to define and Hawaii does not yet recognize gay marriage.

The only thing simple in the process is that Hawaii’s state Constitution allows the Legislature to set the terms: no plebiscite, no constitutional amendment — just a simple majority in the House and Senate.

The complicated part now is getting the House and Senate to say, "I do."

Over the weekend, Abercrombie told a Democratic fundraiser that his staff was working on new legislation.

"We’re not necessarily going to agree on every aspect of how to move forward where justice and freedom and opportunity are concerned," the governor said.

"But I think we can put together something that can achieve a solid majority, that will give us the opportunity to establish marriage equity in the state of Hawaii commensurate with the recent Supreme Court decisions, and will satisfy and resolve the issues that are presently before the appeals court on the mainland," said Abercrombie.

According to legislative leaders, the House does not have the needed two-thirds majority to call itself into session. So the action has to come from the governor, who can order up a special legislative session.

If Abercrombie’s position on same-sex marriage is complex, positioning something as controversial as a same-sex marriage bill for a special session is devolving into a Rubik’s Cube of complexity.

First, the governor cannot limit a special session to a specific topic. Legislators can introduce any bill they want. If they want to give state money to the Humane Society, abolish the state planning agency for Kakaako or revisit state support for the city rail project, it could all be on the table.

Legislative discipline is mostly a non sequitur.

Then there is the matter of writing a new marriage law.

First, what to do with the existing civil unions law: Should that be scrapped, or should it be allowed to continue? What about the part of the law allowing churches to opt in or out of solemnizing civil unions? If marriage between same-sex partners is allowed and becomes a right, can churches refuse to solemnize the marriage? Can the state force churches to recognize gay marriages?

Then there is the issue of timing. If the Legislature and the governor don’t come up with a draft bill soon, the Democrats will run into the fall activities such as planning for a new state budget, which must happen by Thanksgiving.

After that, it is close to the January legislative opening, so, opponents could argue, wait for the regular session.

And that means the gay marriage bill will be drawing more legislative scrutiny and more lobbyist and activist attention and become a focus for the 2014 election.

Perhaps the simplest plan was the one first suggested by former Gov. Ben Cayeta-no, who argued that the state simply get out of the marriage business, keep it a legal contract and keep the cake and ceremony to the private sector.

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Richard Borreca writes on politics on Sundays, Tuesdays and Fridays. Reach him at rborreca@staradvertiser.com.