Gov. Linda Lingle vetoed a civil-unions bill yesterday after concluding it was the equivalent to marriage, which she believes should be reserved for a man and a woman.
But Lingle described the emotional issue as too important to be decided solely by the governor or the state Legislature and recommended a state constitutional amendment be placed on the ballot for voters in 2012.
Hundreds of civil-unions opponents, including many who had been praying and singing hymns, roared when word of the governor’s veto reached them outside her offices on the fifth floor of the state Capitol.
Dejected gay-rights activists, who had gathered in the courtyard below, vowed to try to pass the bill again next year.
The American Civil Liberties Union of Hawaii and Lambda Legal, a New York-based gay-rights group, plan to file a lawsuit in Circuit Court alleging Hawaii has failed to provide equal rights to gays and lesbians short of marriage. Voters approved a state constitutional amendment in 1998 that gave the Legislature the power to define marriage as between a man and a woman, so gays and lesbians are unable to argue for full marriage rights.
The bill would have given same-sex and heterosexual couples who enter into civil unions the same rights, benefits and responsibilities as marriage under state law. Civil unions would not have been recognized under federal law, or by other states that do not have similar civil-unions laws, and the legal distinction would not have had the same social, cultural or religious significance as marriage.
Lingle said she thought more deeply about her decision than any other during her eight years as governor. She said it was difficult because of the many personal stories she heard, including that of a young Big Island man who struggled to tell his parents he is gay, or a mother anguished that public schools could teach her children that a same-sex marriage was equivalent to her own marriage.
"I have been open and consistent in my opposition to same-gender marriage, and find that House Bill 444 is essentially marriage by another name," Lingle said at a news conference on the deadline to veto bills for the year.
Yet Lingle, a Republican who is Jewish, said she did not base her veto on her personal opinion, her religious beliefs or the political impact on any future election. She said she became convinced it should go before voters because of how fundamental the institution of marriage is to the community.
"The subject of this legislation has touched the hearts and minds of our citizens as no other social issue of our day," she said. "It would be a mistake to allow a decision of this magnitude to be made by one individual or a small group of elected officials.
"And while ours is a system of representative government, it also is one that recognizes that from time to time there are issues that require the reflection, collective wisdom and consent of the people, and reserves to them the right to directly decide those matters.
"This is one such issue."
Opponents of civil unions celebrated Lingle’s veto but recognized that the community appears divided.
"We feel the stress in this community, and that’s not our objective at all," said Francis Oda, chairman of the Hawaii Family Forum. "What we want to do is create unity in this community."
Like many opponents, Oda agreed with the governor that the issue should ultimately be decided by voters and should focus on same-sex marriage.
"I believe so," he said. "Why not have the people decide?"
Several lawmakers and gay-rights activists were disappointed with Lingle’s veto explanation. Many advocates said the governor wrongly equated civil unions to same-sex marriage.
More disturbing for advocates, however, was the idea of putting equal rights to a popular vote. Many asked whether a majority of voters in the South during the 1950s and 1960s would have supported civil rights for blacks.
"It’s beyond problematic," said Steven Levinson, a retired associate justice of the state Supreme Court, whose daughter is a lesbian. "By definition, civil rights can’t be defined by the majority. That’s why we have a Bill of Rights, both at the federal and the state level. By their very nature, individual liberties are intended to be counter-majoritarian."
Levinson authored the landmark 1993 ruling that held that it was discriminatory for the state not to issue marriage licenses to same-sex couples. The ruling set off a debate over same-sex marriage that culminated with the 1998 vote that gave lawmakers the authority to define marriage as between a man and a woman.
"It seems like she is taking us back 100 years if we are going to decide civil-rights issues by majority rule," said state Sen. Les Ihara Jr. (D, Kapahulu-Kaimuki-Palolo), who believes lawmakers will try to move the bill again next year.
He said he doubts lawmakers would put the question on the ballot in 2012.
"I would have hoped for a better answer, more solid. It seemed hollow," Ihara said. "I think she intervened in the march of history toward equality."
Suzanne King, secretary of Citizens for Equal Rights, who has been with her partner for nearly 30 years, said activists would continue to fight discrimination and would back candidates in the September primary and November general election who support equal rights.
"It doesn’t stop us," she said of Lingle’s veto. "Our families are still being discriminated against. We need to protect them."
The three leading candidates for governor were split in their reactions.
Lt. Gov. James "Duke" Aiona, the leading Republican candidate, had urged Lingle to veto the bill and had previously called for a ballot question. He said he would simply ask voters whether they believe marriage should be between a man and a woman.
"This issue is so large. It’s so huge. It has such a great societal impact that it needs to be decided by way of a constitutional amendment," Aiona told reporters.
Former U.S. Rep. Neil Abercrombie, who is running in the Democratic primary, does not believe a ballot question is necessary.
"HB 444 was not a same-sex marriage bill," he said in a statement. "The state Legislature has already defined marriage as between a man and a woman. Civil unions respect our diversity, protect people’s privacy and reinforce our core values of equality and aloha.
"Now it will be up to the next governor and Legislature to ensure that all people of Hawaii receive equal treatment," Abercrombie said. "Protecting people’s civil rights cannot be compromised. I am committed to that most essential of constitutional imperatives."
Honolulu Mayor Mufi Hannemann, who is also running in the Democratic primary, said the people should decide.
"Now that the governor has decided the fate of House Bill 444, I firmly support steps to let the people of Hawaii have the final say on an issue that has generated passionate perspectives," he said in a statement.
"I continue to believe that marriage between a man and a woman is sacrosanct. That said, as someone who has fought to overcome prejudice, I would also continue to champion the civil rights of all citizens and seek to end discrimination—in employment, housing, health care and areas where it still exists—irrespective of gender, ethnicity, sexual orientation or religious preference," Hannemann said.
"If given the opportunity, I know the people of Hawaii will have the wisdom and compassion to make a decision that reflects our values and goals for a fair and open society."
Lingle criticized state House lawmakers for what she described as their flawed decision to revive the civil-unions bill on the last day of the session in April.
The House originally passed a civil-unions bill last year that applied only to same-sex couples. The bill was amended by the state Senate on the second-to-last day of session to include heterosexual couples, but the change meant that the Senate could not take final action before the session ended.
The Senate took up the bill again in January of this year and passed it 18-7, enough votes to reach the two-thirds’ threshold to override a veto. The House decided in February to indefinitely postpone action on the bill. But House lawmakers brought the bill back on the last day of session in April and passed it in a 31-20 vote, three votes short of the two-thirds needed for an override.
Lingle took the full 45 working days she is allowed under state law to make her decision. She had said in May that she thought that civil unions, as described in the bill, were equivalent to same-sex marriage. But she met privately with advocates and opponents of the bill and told reporters she had gone back and forth in her mind about her decision.
House leaders announced on Friday that they would not return for a one-day veto override session. Senate leaders said they were willing to return, and Senate Democrats met in private caucus yesterday in a symbolic gesture. The House’s decision left the fate of the civil-unions bill in Lingle’s hands for this year.
"Very, very disappointed," said state House Majority Leader Blake Oshiro (D, Aiea-Halawa Valley-Aiea Heights), the bill’s sponsor, who is gay. "I don’t believe that ultimately this is an issue that needs to be put on the ballot. I think it’s a civil-rights issue. And so, we’ll just have to wait and see how this all shakes up after the next election."