Gov. Neil Abercrombie, weaving marriage equality into Hawaii’s definition of aloha and religious liberty into the nation’s rich tradition of freedom, signed a bill into law on Wednesday granting gay and lesbian couples in the islands the right to marry.
In an emotional celebration at the Hawai‘i Convention Center’s Liliu Theater, the Democratic governor made Hawaii the 15th state plus the District of Columbia to approve gay marriage.
Abercrombie described the law, which balances equal rights for gay couples with a religious exemption so clergy and churches can refuse gay weddings, the "epitome of the First Amendment in action."
The governor had pulled the state Legislature into a rare special session to respond to the U.S. Supreme Court’s ruling in June that legally married gay couples are entitled to federal benefits. Gay couples in Hawaii have been able to enjoy all the rights and benefits of marriage under state law through civil unions, but are unable to obtain federal benefits until they can marry.
Abercrombie invoked the words that he and his wife, Nancie Caraway, found under a picture of Queen Liliuokalani at Washington Place: "If we could but see our likenesses, could we not learn to be tolerant of our differences?"
Choking back tears, the governor read a personal note from a family friend who he said had spent her life feeling marginalized and waiting for equality: "Finally — today, now — all those who have been invisible, will be visible to themselves and the whole world."
Abercrombie said he would give the koa pen he used to sign the law to Steven Levinson, a retired associate justice of the state Supreme Court, who in 1993 wrote the Baehr v. Lewin decision that held that denying marriage licenses to gay couples was a violation of equal protection under the state Constitution.
Soon after Abercrombie signed the bill, state Deputy Attorney General John Molay filed new documents in Circuit Court opposing a request by state Rep. Bob McDermott (R, Ewa Beach-Iroquois Point) and a group of Christians for a temporary restraining order to prevent the state from issuing marriage licenses to gay couples on Dec. 2.
McDermott and the others contend the 1998 constitutional amendment approved by voters that gave the Legislature the power to reserve marriage to heterosexual couples trumps a statutory change to the law. Voters, they argue, would have to approve another constitutional amendment to expand the definition of marriage to include gay couples.
Molay contends that McDermott and the others lack standing to bring the legal challenge because they have not demonstrated the potential for actual harm from same-sex marriage.
McDermott, for example, claims that his reputation and electability will suffer because he led voters to believe in 1998 that the constitutional amendment would ban same-sex marriage. William Kumia, a pastor and marriage coach, fears hate crimes and lawsuits if he refuses to counsel same-sex couples. Garret Hashimoto, state chairman of the Hawaii Christian Coalition, worries that religious schools would be forced to either teach same-sex education or close.
Molay dismissed such arguments as "‘the sky is falling’ hypotheticals meant to generate fear rather than demonstrate concrete injuries."
Molay also argues that the 1998 constitutional amendment was "clear and unambiguous," giving the Legislature — and not the Supreme Court — the power to define marriage. The constitutional amendment did not, Molay contends, preclude the Legislature from later approving same-sex marriage.
The state also defended ballot information sent to voters by the state Office of Elections at the time that stated that the constitutional amendment would give the Legislature the power to reserve marriage to heterosexual couples only. The word "only," Molay maintains, did not mean that the Legislature only had the power to reserve marriage to heterosexual couples, but could choose to regardless of the ruling by the Supreme Court.
McDermott and others have zeroed in on the word "only" from the ballot information as proof of what voters intended.
Jack Dwyer and Robert Matsumoto, the attorneys for McDermott, argued in court filings on Wednesday that the intent of the Legislature in crafting the constitutional amendment is irrelevant, because the interpretation should turn on the intent of voters who overwhelmingly ratified the amendment.
Judge Karl Sakamoto will hear the legal challenge this morning.
While the legal matter will eventually be settled in court, the social divisions caused by the marriage equality debate might be more difficult to reconcile.
Bishop Larry Silva of the Catholic Diocese of Honolulu issued a statement on Wednesday that described marriage equality as a "manufactured civil right."
"It is very sad that many of our state legislators and our governor have confused a manufactured civil right with a true civil right based on the centuries-old respect for marriage as a stable union between one man and one woman established and publicly recognized primarily for the welfare of children," Silva said. "This manufactured world view is not what God, our maker, has revealed to us, and it is symptomatic of a profound misunderstanding of the purpose of human sexuality. This misunderstanding is manifested, not only in this legislation, but in the many ways that we all fail to live as God has designed us. We pray that we will be able to restore marriage and family to their true place in God’s plan for humanity."
Abercrombie asked people to look for common ground.
"I think it’s time to maybe dial back some of the rhetorical excesses, time to let the legislative dust settle a little bit, and take a couple of deep breaths and recognize that all of this was done with good will and good motivation," the governor told reporters.
Asked specifically about Silva’s statement, the governor referred to a 1790 letter from President George Washington in support of equal treatment for Catholics in a new America dominated by Protestants.
"It might be instructive for the bishop to read it," the governor said, "because there was great prejudice against Roman Catholics in those days."
Tolerance, many believe, will not come from the stroke of the governor’s pen, but from a gradual shift in individual attitudes.
State Sen. Clayton Hee (D, Heeia-Laie-Waialua) shared the story of a lesbian couple whose daughter was not welcome by a school administrator after learning that she came from a "two-mommy family." The young girl was later accepted at Sacred Hearts Academy, a private Catholic school for girls.
"Someday," Hee said — referring to the late John Lennon’s song "Imagine," which Willie K and Amy Hanaialii played at the signing ceremony — "this world will accept all of us for who we are."
Evan Wolfson, founder and president of Freedom to Marry, a New York-based marriage equality group, was one of the attorneys for the gay couples who first challenged Hawaii’s marriage law as discriminatory two decades ago.
"What I think really this shows is the power of continuing the conversation that helps good people who initially may be afraid, or unsure, or not know, to have a chance to rise to fairness, to open their hearts and think it through," Wolfson said. "And that’s the journey Hawaii has been on. It’s the journey America has been on. And it’s why we are winning."
For Genora Dancel — who, with Ninia Baehr, tested Hawaii’s law by applying for a marriage license at the state Department of Health in December 1990 — the wait is almost over.
Dancel, who lives in Royal Kunia with Kathryn Dennis, her partner of 15 years, hopes to finally marry. She wants the civil rights attorney who brought her case — now Associate Judge Daniel Foley of the Intermediate Court of Appeals — to officiate.
"To me, it made full circle today," said Dancel, her eyes welling with tears. "Mission accomplished."