When the Hawaii Legislature and governor decided two years ago to allow gay couples to enter into civil unions, critics derided it as "marriage by another name," and that’s pretty much what it was.
By calling it civil unions, lawmakers gave committed gay couples the legal rights of marriage while skirting the religious and cultural friction involved in calling it marriage.
Most gay rights advocates accepted the separate-but-equal status as a step forward because, from a legal standpoint, it didn’t matter back then what the unions were named.
Under either name, same-sex couples would receive all state benefits of marriage provided under Hawaii law.
And whether it was called marriage or civil union, gay couples would be denied federal marital benefits because of the 1996 Defense of Marriage Act passed by Congress to define marriage as between a man and woman.
That all changed last week when the U.S. Supreme Court struck down DOMA, ruling that defining marriage is a state right and that it’s discriminatory to deny federal marital benefits to couples whose marriages have been legally recognized by their states.
It now appears to matter a great deal from a legal standpoint what gay unions are called at the state level.
The understanding is that gay couples in the 13 states that recognize same-sex marriage will get the full range of some 1,000 federal tax, pension and other marital benefits, while couples in Hawaii and other states where the unions have lesser legal status than marriage will not get federal benefits.
It’s fundamentally unfair for Hawaii to leave our same-sex couples in second-class limbo on federal recognition just because of what we call gay unions.
Lawmakers intended the civil unions law to grant gay couples all legal rights of marriage, and they should amend the law to call it marriage if that’s what it takes to end confusion over federal benefits. No voter referendum is required under the state Constitution.
Hawaii seldom passes up an opportunity to bring more federal dollars into our state, and it would be petty and mean-spirited to start here.
There’s some pressure for a special legislative session to address the court’s ruling, but that probably isn’t necessary.
It’ll take the federal government time to implement the changes required by the Supreme Court, and the Legislature may as well use the time until next year’s session to write a seamless legal transition from civil unions to marriage.
But there’s no possible hitch that would justify leaving Hawaii’s gay couples in separate-and-unequal status beyond next year’s Legislature.
Gay couples played by the rules in using the political and legal systems to assert their rights. They won fair and square, and it’s time for them to have their due.
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Reach David Shapiro at volcanicash@gmail.com or blog.volcanicash.net.
