Saturday, November 28, 2015         


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Gay marriage ruling should not derail Hawaii civil unions


Whenever an important legal ruling surfaces within the broad jurisdiction of the 9th U.S. Circuit Court of Appeals, Hawaii's lawyers take notice in assessing the effects of a circuit-wide application.

That is surely the case now, as lawyers and citizenry alike take stock of a San Francisco federal judge's opinion favoring same-sex marriage.

But with the case likely to draw out as it winds toward the U.S. Supreme Court, next year's Hawaii Legislature should be undeterred in recognizing same-sex civil unions.

Gov. Linda Lingle vetoed the civil union bill after this year's legislative session, suggesting that the issue be put before Hawaii's voters. That rationale fails to recognize same-sex unions as a civil rights issue, which should be addressed in legislation.

On Wednesday, U.S. District Judge Vaughn R. Walker struck down California's controversial Proposition 8 as unconstitutional because it was based on factual error, assumptions about gay and lesbian relationships that are widely held but are mistaken. The proposition mandated "that men and women be treated differently based only on antiquated and discredited notions of gender," he ruled.

Instead, the judge wrote, the proposition was improperly based on "a private moral view that same-sex couples are inferior to opposite-sex couples."

That a majority of California's voters may harbor that opinion "is irrelevant," he added, "as 'fundamental rights may not be submitted to (a) vote,'" quoting a 1943 case.

Specifically, Walker stated, beliefs that "denial of marriage to same-sex couples protects children" and that "the ideal child-rearing environment" requires a marriage between a man and a woman are moral comparisons that are not factually based. The factual record in the ruling was based on extensive testimony by experts.

Walker's approach in his ruling will make it difficult to overturn. Appeals usually are struck down because of disagreement about legal findings instead of factual challenges. Appellate judges generally assume the facts presented in a decision to be true.

In 1998, Hawaii voters approved a state constitutional amendment -- not defining marriage as between one man and one woman but giving that authority to the Legislature, which already had done so. The vote came after the Hawaii Supreme Court ruled that the state must find a compelling state interest to overcome state constitutional equality rights. It was a roundabout way of having voters empower legislators to define marriage.

If the U.S. Supreme Court ultimately upholds the California ruling, Hawaii may be hard-pressed to find that same state interest in maintaining the ban of same-sex marriages -- especially if same-sex couples are denied civil union status and rights.

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