LIHU‘E — With the Obama administration urging the Supreme Court to strike down California’s ban on gay marriage, the case could have sweeping implications for the right of same-sex couples to wed. “It’s an important issue for all people,” said
LIHU‘E — With the Obama administration urging the Supreme Court to strike down California’s ban on gay marriage, the case could have sweeping implications for the right of same-sex couples to wed.
“It’s an important issue for all people,” said U.S. Rep. Tulsi Gabbard, D-Hawai‘i, on a recent visit to Kaua‘i.
While California won’t have a direct impact for same-sex couples in Hawai‘i, it potentially opens the door to overturning the federal Defense of Marriage Act, or DOMA, which allows marriage to be governed by states.
The Supreme Court will hear oral arguments in the Proposition 8 case Mar. 26.
A day later, the justices will hear arguments on another gay marriage case, this one involving provisions of DOMA.
The act defines marriage as between a man and a woman for the purpose of deciding who can receive a range of federal benefits.
The Obama administration abandoned its defense of DOMA in 2011, but the measure will continue to be federal law unless it is struck down or repealed.
In a brief filed last week, the government said Section 3 of DOMA “violates the fundamental constitutional guarantee of equal protection” because it denies legally married same-sex couples many federal benefits that are available only to legally married heterosexual couples.
Impacts on Kaua‘i residents
State Rep. Jimmy Tokioka, D-15th District, has voted against civil unions and same-sex marriage bills at the Legislature for the past six years he’s been in office, noting that his constituents are more conservative after repeated surveys in his district, which goes from Wailua Homesteads to Koloa, including Hanama‘ulu, Lihu‘e, Puhi and ‘Oma‘o.
“I think with what passed with reciprocal benefits and civil unions pretty much covers a lot of the concerns that couples that are in a same-sex relationship have asked for many years,” Tokioka said.
For at least two of Tokioka’s constituents, however, Hawai‘i’s civil unions law is not enough to cover their concerns.
Jeff Demma and Ross Martineau of Kapa‘a said there are more than 1,400 federal and state benefits that they still do not qualify for because their relationship is not federally legalized. They have been together for 15 years, and have lived on Kaua‘i for the past eight years.
“People don’t realize how many rights come with the title of ‘marriage,’” Martineau said.
For one thing, Demma and Martineau are unable to jointly file income taxes, which costs them thousands of dollars annually.
“This isn’t about religion, it’s about legal history and rights of survivorship,” Demma said, noting that years ago interracial marriages weren’t recognized, but are legal now.
Father Bill Miller of St. Michael’s and All Angels Church in Lihu‘e agreed this is a legal issue, and its time has come.
“I come at it from the issue of social justice,” he said. “It’s important for many of us, even if we have divergent opinions on other issues.”
Miller said while some churches might fear being forced to perform sacramental rights, he said his church has turned away opposite-sex couples for not being part of the congregation or the larger church, adding his church would not merely rent space to any couple to get married.
“We follow guidelines of tradition,” he said of requiring couples to attend counseling, follow policies and procedures and have their vows taken in front of the church community. “The same would be true for an LGBT couple. It’s a sacramental right for us.”
Miller has performed ceremonies for gay couples.
“It’s the right thing,” he said.
Marriage governed by states
Obama supports same-sex unions but has said marriage should be governed by states.
Gay rights advocates nationwide have pressed the president to urge the court to strike down Proposition 8, and also to rule that the Constitution forbids any state from banning same-sex unions.
The administration may also choose a narrower option, including asking the court to strike down only California’s ban.
Another option would be for the administration to ask the court to rule that California and other states that allow unions carrying all of the benefits of marriage cannot take that right away.
The Proposition 8 ballot initiative was approved by California voters in 2008 in response to a state Supreme Court decision that had allowed gay marriage.
Twenty-nine other states have constitutional amendments banning gay marriage, while nine states and the District of Columbia recognize same-sex marriage.
Seven other states, including Hawai‘i, allow gay couples to join in civil unions that have full marriage benefits. But while every marriage is legally a civil union, not every civil union is considered a marriage, which can lead to problems by denying same-sex couples access to the “Full Faith and Credit Clause” of the U.S. Constitution, which allows a couple’s marriage in one state to be recognized as legal in any other state.
While the path and the strategy forward is still being worked out, Gabbard said she was part of a group of legislators who sent a letter to outgoing Secretary of Defense Leon Panetta urging him to take action to ensure all spouses within the military, whether same- or opposite-sex, “are taken care of, because our service members and military families have earned it.”
“There’s so many different facets to this issue that would be addressed at once, rather than by piecemeal if DOMA is repealed and that is the objective,” Gabbard said.
In 2011, Gov. Neil Abercrombie signed into law civil unions, representing Hawai‘i’s diversity, protected people’s privacy, and reinforced core values of equality and aloha.
“I have always supported human equality and agree with President Obama and our Congressional Delegation that all of our citizens should be treated equally,” Abercrombie said. “Hawai‘i is a state defined by our diversity, compassion and aloha.”
In 2012, a lawsuit was filed against Abercrombie in his official capacity, claiming discrimination for failing to allow same-sex couples to marry.
Abercrombie has declined to contest the lawsuit citing elements of the civil union law.
The state Attorney General is defending the Department of Health in carrying out its duty under the current law.
In the current legislative session, there are bills to address marriage equality, and Abercrombie is urging the state Legislature to hear those measures.
President Obama raised expectations that he would back a broad brief during his Jan. 21 inaugural address, when he said the nation’s journey “is not complete until our gay brothers and sisters are treated like anyone else under the law.”
“For if we are truly created equal, than surely the love we commit to one another must be equal as well,” Obama said in remarks on the west front of the capital.
Public opinion has shifted in support of gay marriage in recent years, according to Associated Press.
In November 2012, a Gallup poll found that 53 percent of Americans felt same-sex marriages should be legally recognized by the law as valid.
