Natasha Jackson-Kleid and her partner, Janin, held a small celebration on Magic Island in late January marking their civil union. They dressed in gleaming white. They clutched bouquets. They sipped sparkling cider. It felt almost like they just got married.
"When we explain to other people, they didn’t necessarily understand what a civil union was," Jackson-Kleid said. "And I’m not a professor; I’m trying to explain to them, ‘Just look at it as marriage.’ And they’re like, ‘Well, why can’t you say married?’ And I said, ‘Exactly.’"
Jackson-Kleid and her partner are challenging the state’s civil unions law in federal court as unconstitutional because it denies them marriage.
"And that’s what we’re fighting for, because when someone comes up to me and says, ‘Is this your wife?’ I want them to know, ‘Yes. This is my wife.’ This is not practice. This is not us playing house. This is us together for life."
The Ewa couple say they feel a step closer to equality after a three-judge panel of the 9th U.S. Circuit Court of Appeals ruled 2-1 on Tuesday that California’s Proposition 8, which restricted marriage to a man and a woman, was unconstitutional.
The federal appeals court, however, decided the case on the narrow grounds that the ballot initiative deprived same-sex couples of a right others briefly enjoyed when California legalized gay marriage in 2008. The court did not address whether same-sex couples have a fundamental right to marry under the U.S. Constitution, a question that might — or might not — be taken up if the case reaches the U.S. Supreme Court on appeal.
Jackson-Kleid’s federal lawsuit in Hawaii claims the state’s civil unions law violates the due process and equal protection clauses of the 14th Amendment to the U.S. Constitution because it denies them marriage.
"We’re arguing that the state cannot deny them the right to marry when they’ve given them everything else that goes with marriage," said John D’Amato, the couple’s attorney. "And that to do so — to deny them the right to marriage in this context — is an affront to their dignity and a disparagement of their relationships."
State Attorney General David Louie is scheduled to file the state’s response to the federal lawsuit by Feb. 21. A spokesman said Tuesday that Louie would not comment on what influence, if any, the 9th Circuit’s ruling will have on the state’s legal strategy.
State Rep. Gilbert Keith-Agaran (D, Kahului-Paia), chairman of the House Judiciary Committee, said Louie told him after the ruling on Tuesday that the state plans to "vigorously defend" the civil unions law.
The 9th Circuit has jurisdiction over Hawaii and several other Western states, but the ruling Tuesday was narrowly constructed for California.
Keith-Agaran said a critical difference is that Proposition 8 restricted marriage to a man and a woman, while in Hawaii, voters approved a constitutional amendment in 1998 that gave the Legislature the authority to define marriage as between a man and a woman. Lawmakers specifically said it was not their intent with the civil unions law to revise the definition of marriage, but to give both same-sex and heterosexual couples the ability to enter into civil unions and receive the benefits of marriage under state law.
"I don’t think there’s going to be an equal protection violation found," he said.
While the underlying facts are different, the 9th Circuit’s ruling does offer some context for the Hawaii lawsuit. The federal appeals court found that Proposition 8 was a violation of the 14th Amendment, holding that there must be a legitimate reason for treating different classes of people differently under the law. "All that Proposition 8 accomplished was to take away from same-sex couples the right to be granted marriage licenses and thus legally to use the designation of ‘marriage,’ which symbolizes state legitimization and societal recognition of their committed relationships," the judges wrote. "Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples."
State Sen. Clayton Hee (D, Kahuku-Kaneohe), chairman of the Senate Judiciary and Labor Committee, said the ruling could have an effect on how Louie defends the state’s civil unions law.
"I suspect that he’s climbing a much steeper hill than he anticipated," Hee said. "While I think he can defend the civil unions law, and should defend it — that’s his job — I imagine he might concede that the momentum, at least in the federal courts, is quite different."
Lawmakers are not the only ones curious about how the Abercrombie administration will respond.
Walter Yoshimitsu, executive director of the Hawaii Catholic Conference, the public-policy arm of the Roman Catholic Diocese of Honolulu, said Catholics are interested in intervening in the federal lawsuit and hope other religious groups that fought same-sex marriage in the 1990s, such as the Mormons, will join them.
Yoshimitsu said opponents repeatedly pointed out during debates over reciprocal beneficiaries and civil unions that the real aim for gay activists was marriage. "Now that they have civil unions, they want marriage," he said.
Janin Jackson-Kleid — the couple has combined their surnames since they filed the lawsuit in December — said she is thankful Gov. Neil Abercrombie signed civil unions into law, describing it as a step in the right direction. But she said she just wants the same status as a married couple that the governor has with his wife.
"It’s not enough. It doesn’t cover everything that he’s experiencing with his wife," she said. "We just want the same rights as he does."
