State is expected to put up defense of civil unions law

The Abercrombie administration is preparing a response to a federal lawsuit challenging the state’s civil unions law as unconstitutional because it does not allow same-sex couples to marry, searching for a line that balances both the law and politics.

Natasha Jackson and Janin Kleid sued the state in federal court in December, alleging that the state’s refusal to issue them a marriage license is a violation of the due process and equal protection rights in the 14th Amendment to the U.S. Constitution. A law that took effect in January gives both same-sex and heterosexual couples the ability to enter into civil unions and receive the same rights, benefits and responsibilities of marriage under state law.

State Attorney General David Louie is expected to file the state’s answer to the lawsuit by Feb. 21. He would not say Monday how the state would respond, but several sources believe the administration will defend the state law.

After private discussions between administration officials and state lawmakers over the past several days, some questions were raised about whether the administration would defend the law or whether the defense would be vigorous, but administration sources say they were only outlining their legal options.

Legal experts predict that same-sex marriage will ultimately be settled by the U.S. Supreme Court. In the meantime, Hawaii and other states with civil unions have to contend with the evolving legal and political dynamics of the volatile social issue.

A three-judge panel of the 9th U.S. Circuit Court of Appeals is scheduled to rule today whether California’s Proposition 8, which recognized marriage as between a man and a woman, is constitutional. A federal district judge ruled in 2010 that the voter-approved ballot initiative was a violation of equal protection.

The ruling by the 9th Circuit, which has jurisdiction over Hawaii, could influence how the Abercrombie administration shapes its response to the Hawaii lawsuit.

When civil unions were being debated at the state Legislature a few years ago, several lawmakers pointed with caution to Connecticut, where a challenge to a civil unions law led to a Connecticut Supreme Court ruling that legalized gay marriage.

Hawaii lawmakers, when drafting the state’s civil unions law, made clear that it was not their intent to revise the definition or eligibility of marriage under state law. Voters approved a constitutional amendment in 1998 that gave the Legislature the power to define marriage as between a man and a woman.

Jackson and Kleid, a lesbian couple, allege that the civil unions law is unconstitutional because while it grants them the benefits of marriage under state law, they are denied the benefits of marriage under federal law, like heterosexual couples who marry in Hawaii enjoy.

State Rep. Gilbert Keith-Agaran (D, Kahului-Paia), chairman of the House Judiciary Committee, and state Sen. Clayton Hee (D, Kahuku-Kaneohe), chairman of the Senate Judiciary and Labor Committee, said lawmakers would have the option of intervening in the federal lawsuit if they were not satisfied with how the Abercrombie administration defends the law.

"That’s always a possibility," Hee said. "However, given what I was told today, it doesn’t seem like a real possibility. I was told that (the attorney general) is going to defend the state’s law."

Gay rights activists have said that their long-term goal is marriage equality. Many are planning to urge the Legislature to take up gay marriage as soon as next year, independent of the pace of the court system.

Jo-Ann Adams, an attorney and Demo­cratic activist, said marriage is the standard. But she described the civil unions law as "a huge political and social step forward in the right direction."