Wednesday, November 4, 1998

By George F. Lee, Star-Bulletin
Advocates for gay marriage Patrick Lagon, right, and Joseph
Melillo reflect upon a goal that seems farther away as the
electorate decides that the state Legislature will have the
power to limit marriage to opposite-sex couples.

Same-sex marriage
strongly rejected

The supporters are headed
for the courts where they have
had more success

By Mike Yuen


Overwhelmingly rejected at the ballot box, proponents of same-sex marriage are again heading to the courts, where they've had more success.

First, they must fight another skirmish in the Legislature, which they say they'll likely lose. But it puts them on a path back to the Hawaii Supreme Court, said civil rights attorney Dan Foley, who represents the three gay couples who sued the state for the right to marry in 1991.

Foley's remarks last night came as more than two out of three voters approved a constitutional amendment that gives lawmakers the power to limit marriage to opposite-sex couples.

Supporters of the amendment saw it as a way to sidestep the Hawaii Supreme Court's 1993 ruling that same-sex marriages must be permitted unless the state provides a compelling reason not to do so.

Opponents of the amendment said isle voters were so afraid the state would become the first to legalize same-sex marriage they made the state one of the first to have discriminatory language in its constitution. Alaska approveda similar measure yesterday.

Twenty-eight other states, concerned that Hawaii might legalize same-sex marriages, have already banned homosexual unions, but they did it by statute -- not by changing their constitutions. In 1996, Congress passed the Defense of Marriage Act, which denied recognition of same-sex marriages on the federal level.

Joseph Melillo, who with his partner sued the state when they were denied marriage licenses in December 1990, said passage of the constitutional amendment makes him and other gays and lesbians second-class citizens.

"We will not be considered equal. We'll be denied rights that we should have," he said.

Mike Gabbard, chairman of the Alliance for Traditional Marriage, said the vote was a strong message that Hawaii residents don't want homosexual marriages.

In 1994, the Legislature passed a law defining marriage as being between one man and one woman. Foley said that since the amendment approved yesterday is not a self-executing provision, the Legislature must enact a new measure that limits marriage to opposite-sex couples.

Linda Rosehill, strategist for Save Traditional Marriage-'98, believes her side may go to the Legislature for "insurance-type legislation" to ban gay marriages.

If the bill passes, as Foley expects, he will then appeal to the Hawaii Supreme Court, arguing that the constitutional amendment doesn't overturn the high court's 1993 ruling."All the constitutional amendment does is give power to the Legislature to withhold the marriage license -- not the rights and benefits of marriage," Foley contended.

"It is still sex discrimination to deny equal rights and benefits to same-sex couples. So we would ask the Supreme Court to rule in our favor as to the rights and benefits and have them extended under a different name."

That should put foes of same-sex marriage in dilemma, Foley said. "They've always said this is not about equal rights, that this is about traditional marriage. So when I go into court and ask for equal rights but not marital status, I'm sure they wouldn't oppose it. They're not against equal rights, right?" Foley asked.

Rosehill acknowledged that the extent to which marriage benefits should be conferred to gay couples has bedeviled her side. "There are segments within our group that are OK with benefits as long as it's not everything in marriage under this different name," Rosehill said. "They particularly object to parental rights-type benefits, such as adoption, in-vitro fertilization and custody issues."

Foley, Rosehill added, is obviously aiming to get "domestic partnerships" through the courts. "I think that in and of itself may take a while," Rosehill said.

The amendment was one part of a compromise adopted by lawmakers last year. The other part, a reciprocal benefits measure, was unprecedented in the nation for granting the most extensive rights to gay couples outside marriage. But while it extended rights such as hospital visitation, probate and property transfers, it did not cover adoption, child custody, alimony and spousal privilege. It would, under what Foley now envisions.

Foley said he hasn't yet thought out the logic of a federal challenge to the state's new amendment limiting marriage. The basis for that could be equal protection under the law, he theorized. "That may be a separate lawsuit," Foley said. If voters had rejected the amendment, the issue of same-sex marriage would have been left to the courts.

Same-sex marriage, Foley predicted, will be a reality one day. "Hawaii won't be the first state. But it is just a question of when and where," he said. "If not Hawaii, it could be Vermont."

Later this month, the Vermont Supreme Court is scheduled to hear oral arguments on same-sex marriage. If the Vermont high court rules in favor of homosexual unions, a gay couple from Hawaii could go to Vermont to get married and return to Hawaii and demand recognition of the marriage under a constitutional provision that requires states to recognize each other's statutes and legal bonds, Foley said.

Defeated "no" voters put feelings on paper

They comforted each other with hugs and kind words when they realized that their effort to stop a constitutional ban on same-sex marriage had failed. But advocates of a "no" vote on the amendment to ban same-sex marriages expressed themselves another way: writing on a large piece of paper that covered a table.

Someone compared the unsuccessful "no"-vote drive to Rosa Parks' refusal to sit at the rear of the bus, a defining moment of the civil rights movement.

Another person saluted everyone connected with Protect Our Constitution, the umbrella organization for the "no"-vote coalition.

"We are not going away. Justice will prevail," declared one unsigned message.

Abercrombie, wife split on amendment

U.S. Rep. Neil Abercrombie and his wife, Nancie Caraway, parted company on the constitutional amendment that would allow the Legislature to ban same-sex marriage.

The congressman voted "yes," his wife, "no."

"She's a full partner with me with her own views on the world," he said last night. "We respect one another."

Although he's a civil-rights advocate supported by gay and lesbian groups, Abercrombie said he voted "yes" on the amendment because he believes it's a legislative issue.

He said he feels it's a "good compromise" to achieve the rights and benefits of a partnership for same-sex couples.

"I felt the legislators made a courageous move," he said. "It is a good combination. I stayed with my principles to see that nobody is discriminated against, that everyone has dignity."

"The sad part of this is there is so much hatred in the air," he said.

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