on same sex
Cayetano's plan givesBy Mike Yuen
gay couples benefits but
not parental rights
For years, civil-rights attorney Dan Foley and community leader John Hoag have been on opposite sides of the same-sex marriage fight.
But now Foley and Hoag appear to have found common ground with Gov. Ben Cayetano's proposal for domestic partnerships, which would give gay couples many of the rights and benefits related to marriage while still withholding the title of marriage.
The reason: Cayetano's bill, which will be introduced when the Legislature convenes later this month, doesn't include adoption and parental rights for gay couples.
Hoag said that is where he draws the line. And that is where Hoag, a leader in the campaign that passed the constitutional amendment allowing the legislature to ban same-sex marriage, believes the majority of isle residents also draw the line.
Cayetano, who has long favored domestic partnerships, said yesterday that he doesn't believe that gay couples should have adoption and parental rights. By excluding those two rights, his domestic partnership bill will have a much greater chance of winning legislative approval.
"I realize that this is an issue of contention with those who favor domestic partnerships," Cayetano said. "But I'm trying to be very practical about this. I think what we can achieve today is to make some progress in terms of the financial rights and other kinds of rights, which have nothing to do with raising children or with adoption."
Foley, who represents the three gay couples who sued the state for the right to marry and who is still fighting for same-sex marriage in the courts, said he understands "the political realities" of Cayetano's proposal.
"I can't have everything I want when I want it. I'm a big boy. I know that," said Foley, who contends that there is no legal or factual basis to withhold adoption and parental rights from gay couples.
"We're still pursuing full equal rights in the courts; you can't bet anything on what the courts would do," Foley added. "But the governor's bill would be a major step forward. If it is adopted by the Legislature, it would move the state forward in treating gays and lesbians equally."
Cayetano wants his initiative to replace the reciprocal benefits measure that the Legislature passed in 1997 that was unprecedented in the nation for granting the most extensive rights to gay couples outside of marriage. But while it extended to homosexuals rights such as hospital visitation, health benefits, probate and property transfers, Cayetano felt it was flawed because it also applied to "nontraditional relationships" such as one between a widowed mother and her unmarried son.
Hoag said: "Our group awaits to see the full scope of the governor's bill before we pass judgment on its merits. But we're pleased he has stopped short of parental and adoption rights."
Hoag also said he hopes the tentative support that Cayetano's bill has won from him and Foley signals that the community has begun healing after the emotional and divisive fight over the marriage amendment.
Mike Gabbard, one of the foes of same-sex marriage who sees domestic partnerships as simply a different name for same-gender unions, said: "We should just stick with the (reciprocal beneficiaries law). Let's get down to the main business at hand and fix the economy and get off of this stuff."
Foley said that prohibiting gay couples who enter into domestic partnerships from having adoption or custody rights creates "a stranger in the household" if a child also lives under the same roof.
"If only one is the legal parent, then the other has no legal responsibility to the child," Foley said.
Consider a case in which a woman, a lesbian, is divorced from her husband and has custody of their child, Foley said. The woman then has a relationship with another woman, who becomes the provider of a household that includes the two women and the divorced lesbian's child. If the couple breaks up, the woman who has been the provider would have no responsibility for child support. "I don't see how that helps the child," Foley said. "When a a child is involved, it is primarily duty - not rights - that must guide adults. That kid has less rights than a kid in a straight household."
Foley said Hawaii has no restrictions prohibiting a homosexual adult from adopting a child.
When adoption or custody is considered, the primary concern should be what is in the best interest of the child - not the sexual orientation of an adult, Foley insisted.