Gays’ Canadian nuptials
split isles’ legal opinion
Legal experts differ on what legal rights same-sex couples married in Canada have in Hawaii.
While some say same-sex married couples should enjoy the same benefits as traditionally married couples, others say the recent marriage of two Kailua-Kona men in Canada is largely symbolic and does not necessarily translate into legal rights.
Bill Schuyler and Ron Rinaldi were married Saturday in Vancouver, British Columbia, where a court decision opened the way for same-sex marriage.
"Gay couples who get married in Canada and then return home, just like Canadian couples who marry at home and who travel to the United States ... will rightfully expect legal respect for their lawful marriages," said Evan Wolfson, New York attorney who with Daniel Foley represented three same-sex couples in a Hawaii court case that spawned the same-sex marriage debate in this state.
"I would fully expect that Hawaii would treat these marriages as what they are: marriages," said Wolfson, executive director of Freedom to Marry, a group working for marriage equality.
But attorney Earle Partington, who assisted with the case, offered a differing view. "What that means here is absolutely nothing," he said. "Under American law, American courts and government are not bound to give effect to legal acts in countries if those legal acts violate American public policy."
The attorneys worked on the case filed in 1991 by three same-sex couples that led to a court ruling in 1996 that they should get marriage licenses because the state had failed to give a compelling reason to forbid the marriages. In 1998, voters approved a state constitutional amendment giving the state Legislature the power to restrict marriage to couples of the opposite sex.
Canada became the third country to permit same-sex marriage, but unlike the Netherlands and Belgium, it has no residency requirements or restrictions on foreigners.
Vermont is the only U.S. state that comes close to providing same-sex marriage with civil union status.
"Hawaii had the chance to be the first to set this example of equality; now three other countries have moved ahead," Wolfson said.
University of Hawaii law professor Jon Van Dyke predicts the new Canadian law will lead to more litigation and discussion in Hawaii.
Because state law prohibits discrimination based on sexual orientation, cases may arise out of employment rights and government benefits, he said.
Van Dyke said marriage is entering a contract to share property and could change a Hawaii court's decision on how assets should be divided, should a couple break up.
Sylvia Law, professor of family law at New York University School of Law, said states and countries generally respect marriages performed in other jurisdictions. But she said a state can refuse to recognize a marriage if there are strong policy reasons against it.
Law said that even if a marriage is recognized by a state as legal, federal law says gay couples do not qualify for federal benefits, such as tax and Social Security benefits.
"In states that do not have domestic partnership laws, it (marriage) will make a huge difference in qualifying for health insurance, pensions and in terms of all those benefits you get as a spouse," she said.
Hawaii's domestic partnership law allows people to qualify for benefits extended to spouses, such as health benefits and hospital visitation rights, she said.
