Gov. Neil Abercrombie acknowledged Tuesday that the state’s marriage law is unconstitutional because it denies same-sex couples the "fundamental right" to marry, but the state will still defend the statute in federal court on behalf of the state Department of Health.
A lesbian couple sued the state in December after being denied a marriage license, alleging that the law, which reserves marriage for heterosexual couples, violates their due process and equal protection rights under the 14th Amendment of the U.S. Constitution. The couple also contends that the Hawaii’s civil unions law, which is open to all couples, is no substitute for marriage.
On Tuesday, Abercrombie and state Health Director Loretta Fuddy filed separate legal responses to the lawsuit. Fuddy said she is charged with administering the law and will defend it in court.
Abercrombie said there is no compelling, substantial or rational basis for a state law that denies same-sex couples the ability to marry because of their sexual orientation. The Hawaii Democrat’s response might not have much of a practical effect on the federal lawsuit, since the state will defend the law for the Department of Health, which issues marriage licenses.
Abercrombie will also defend the state against the couple’s claims of a civil rights violation and against any monetary damages.
Many gay rights advocates, however, view Abercrombie’s stance as a potential milestone for Hawaii, since the governor described marriage as a fundamental right and an issue of equality.
"Under current law, a heterosexual couple can choose to enter into a marriage or a civil union," Abercrombie said in a statement. "A same-sex couple, however, may only elect a civil union. My obligation as governor is to support equality under law. This is inequality, and I will not defend it."
John D’Amato, the attorney representing Natasha and Janin Jackson-Kleid, the lesbian couple who filed the lawsuit, described Abercrombie’s response as "a courageous and principled act."
"I think it’s fair to say that politicians have been afraid to speak their minds and to act in accordance with their conscience for fear of what it could mean at the ballot box," he said.
State Sen. Sam Slom (R, Diamond Head-Hawaii Kai) said he had predicted that Abercrombie and Attorney General David Louie would "roll over," similar to how the Abercrombie administration offered a mixed response to a lawsuit over redrawing the state’s political boundaries.
"I think it’s wrong. I know everybody is patting him on the back," Slom said. "Why would anybody be surprised? He rushed through the civil unions bill last year."
At the state Capitol, much of the political debate has been over a civil unions law that took effect in January, but the federal lawsuit is a direct challenge to the state’s marriage law.
The couple allege that the civil unions law, which grants the same rights, benefits and responsibilities of marriage under state law, does not provide the same benefits of marriage under federal law or in private-sector benefit plans. They also claim that the civil unions law, while well intentioned, denies same-sex couples the ability to call themselves married and further stigmatizes and marginalizes their relationships.
Despite their legal concerns, the Jackson-Kleids celebrated their civil union in January. Gary Bradley and his partner, the first couple to get a civil union, have also joined the lawsuit.
State lawmakers have said that it was not their intent with the civil unions law to redefine marriage.
In 1993 the state Supreme Court ruled that denying same-sex couples marriage licenses was an equal-protection violation of the state Constitution. Voters responded with a constitutional amendment in 1998 that empowered the Legislature to define marriage as between a man and a woman.
State lawmakers said Tuesday that they would discuss what, if any, action they might take to defend state law. They could attempt to intervene in the suit if they believe their interests are not being honored.
The state attorney general’s office said Tuesday that it has assigned separate teams of attorneys to represent Abercrombie and Fuddy.
Fuddy, in a statement, said the department is charged with implementing laws.
"Absent any ruling to the contrary by competent judicial authority regarding constitutionality, the law will be enforced," she said. "Because I am being sued for administering the law, I will also defend it."
State Rep. Gil Keith-Agaran (D, Kahului-Paia), chairman of the House Judiciary Committee, said the state Constitution and state law would be defended vigorously on behalf of the health director.
"I’m sure that the director of health, because she’s required to implement the law, is going to make the best arguments that she can," he said. "And I think the governor is standing on his principles in deciding that he’s not going to defend the due process and equal protection claims."
State Sen. Clayton Hee (D, Kahuku-Kaneohe), chairman of the Senate Judiciary and Labor Committee, predicted that there may be some political repercussions as a result of Abercrombie’s decision. He also said that among senators there is "some discomfort" with Attorney General Louie.
Abercrombie, he said, could have submitted a same-sex marriage bill to the Legislature if he thought state law was unconstitutional.
"I suppose next year, given his strong feelings today, no one should be surprised that the administration will be introducing a bill to legalize same-sex marriage," Hee said.
Sen. Les Ihara Jr. (D, Kaimuki-Palolo) said he agrees with the governor’s decision.
"So far, the empirical evidence provided to back up the claims of why you should discriminate have not been proven," he said.
Abercrombie, during his campaign for governor, said he supported civil unions but minimized same-sex marriage as an issue. He said that the Legislature had already defined marriage as between a man and a woman. During an August 2010 debate, former Honolulu Mayor Mufi Hannemann, Abercrombie’s primary opponent, tried to shift the discussion from civil unions to same-sex marriage, but Abercrombie deflected. "That question is not before us and is unlikely ever to be," he said.
At the time, only a few states allowed same-sex marriage. Several states have since moved toward same-sex marriage, but the issue will likely not be resolved nationally until a legal case reaches the U.S. Supreme Court.
A federal judge in California ruled in August 2010 that marriage is a fundamental right, striking down voter-approved Proposition 8, which banned same-sex marriage. The 9th U.S. Circuit Court of Appeals upheld that ruling this month but decided the case on narrow grounds that apply only to California, which briefly allowed same-sex marriage before the ballot initiative.
Former California Gov. Arnold Schwarzenegger and Gov. Jerry Brown, while serving as attorney general, refused to defend Proposition 8 in court.
President Barack Obama has also refused to defend the federal Defense of Marriage Act, a 1996 federal law that recognizes marriage as between a man and a woman.
The federal law was passed in part as a reaction to the Hawaii Supreme Court decision in 1993.
"We’re very pleased with his decision," Alan Spector, legislative affairs co-chairman for Equality Hawaii, a gay rights group, said of Abercrombie. "We do find it inconsistent that Director Fuddy is taking a position opposite of our state’s chief executive."
