Ruling magnifies call for same-sex marriage

The drive for gay marriage in Hawaii will intensify after the U.S. Supreme Court ruled Wednesday that gay couples legally married under state laws are entitled to federal tax and health care benefits.

The court ruled that states must follow constitutional guarantees but otherwise have the historic and essential authority to define marriage. The decision struck down the federal Defense of Marriage Act, which had recognized marriage as between a man and a woman, as a violation of equal protection under the Fifth Amendment.

Waving rainbow banners and American flags, dozens of gay and civil rights advocates held an evening rally at the state Capitol to celebrate the court’s ruling as another step toward equality and to demand that Gov. Neil Abercrombie and the Legislature approve gay marriage next session.

Hawaii allows same-sex and heterosexual couples to enter into civil unions and receive the same rights, benefits and responsibilities of marriage under state law, but 

couples do not enjoy federal benefits. Hawaii also recognizes gay marriages performed in other states as civil unions, a potential bureaucratic challenge for Hawaii couples who marry on the mainland and want federal benefits.

The court’s ruling was not only legally important, but symbolic, describing state gay marriage laws as providing protection and dignity to the bond between same-sex couples and reflecting the evolving understanding of equality.

“Whether you want to accept that we’re married, or whether you want to see us as a married couple, that’s really a person’s personal choice,” said Tambry Young, the president of Citizens for Equal Rights, who married Suzanne King, her partner of more than 30 years, in Massachusetts in 2009. “Whether we are granted same-sex marriage, that is not going to force anyone to change their own personal opinion of others.

“I would hope that people would feel that that’s the right thing, that everyone is equal and we should all have it. But I can’t change people that oppose it. I won’t be able to change that. And I don’t think any ruling would be able to change their opinion about that.”

The Defense of Marriage Act was approved by Congress in 1996, largely in response to a Hawaii Supreme Court ruling in 1993 that held that denying same-sex couples the right to marry under state law violated equal protection.

Instead of moving toward gay marriage, though, voters in Hawaii overwhelmingly approved a constitutional amendment in 1998 that gave the Legislature the power to define marriage as between a man and a woman.

James Hochberg, an attorney for the Hawaii Family Forum, a religious conservative group, said the Legislature should let voters decide through another constitutional amendment whether to approve gay marriage. Many gay and civil rights activists have said that marriage is a fundamental right that should not be subject to the ballot box. But the Supreme Court chose not address the question of whether marriage is a constitutional right.

“If they want to change how they’re going to define marriage, they should bring it back and let us vote on it,” Hochberg said.

Jo-Ann Adams, an attorney and gay rights activist, said she and others were satisfied with civil unions under state law because the Defense of Marriage Act had prevented federal benefits. Now that the Defense of Marriage Act has been declared unconstitutional, she said, gay couples are being denied more than 1,000 federal benefits by having civil unions instead of marriage.

“There will be lots of momentum to pass a marriage bill in the next session,” Adams said in an email.

Abercrombie has refused to defend the state’s marriage law in a federal court challenge brought by same-sex couples, although the state Department of Health is defending the law. The governor also urged lawmakers in a May speech before Oahu Democrats to support marriage equality.

But Abercrombie was reluctant on Wednesday to say whether his administration would back a gay marriage bill. He referred to his stance in the federal lawsuit that the Constitution’s equal protection clause requires same-sex marriage in all states, including Hawaii.

“But in the end, Hawaii stands for justice. It stands for equality. And whatever is necessary to accomplish that, we’ll do,” the governor told reporters. “It’s just that I’m simply not prepared today to say whether or not that will require more legislation, or if it does, precisely what that legislation should say.”

Lawmakers approved a resolution last session asking a task force to study the social, economic and religious impacts of enacting marriage equality in Hawaii and to report to the Legislature before the next session opens in January. The task force was also urged to examine the anticipated U.S. Supreme Court rulings on marriage equality.

House Majority Leader Scott Saiki (D, Downtown-Kakaako-McCully), who supports gay marriage, said House leaders would poll lawmakers during the next several weeks.

“This is one of the issues where we have said from the outset that it’s really a matter of individual conscience,” he said. “The House leadership team does not want to dictate a result on this. We really want members to be able to make their own decision on how to proceed with this.”

Sen. Clayton Hee (D, Heeia-Laie-Waialua), the chairman of the Senate Judiciary and Labor Committee, said he had spoken to Senate leadership on Wednesday and was sure the Senate would hear a gay marriage bill next year.

Hee, who considers gay marriage an equal rights issue, said the Supreme Court’s decision may help clear away the reservations and misgivings some lawmakers have had in the past.

“This may be the will to find the way,” he said.