Gays’ fight
may turn to
rights and benefits

A lawyer says the battle
isn't over as the Supreme
Court affirms the law
against same-sex marriage

Plaintiff: Judiciary ‘copped out’
The case history

By Debra Barayuga
Star-Bulletin

Opponents of same-sex marriage are applauding a pivotal state Supreme Court ruling that bars gay and lesbian couples from getting marriage licenses in Hawaii, but proponents say battles over the emotional issue are not over.

"The way I read the opinion is that same-sex couples now are entitled to all the rights and benefits of married couples without the license, and if the Legislature doesn't extend it to them, the state will be litigating into the next millennium," said attorney Daniel Foley.

Foley is the lawyer who filed a lawsuit in 1991 on behalf of three same-sex couples who sought Hawaii marriage licenses, setting off years of political and legal wrangling.

In issuing a long-awaited opinion based on the lawsuit, now called Baehr vs. Miike, the high court yesterday said the complaint is "moot" because of a state constitutional amendment approved by voters in November which provides that the Legislature has the power to reserve marriage to opposite-sex couples.

The four-page decision was signed by Chief Justice Ronald Moon and Justices Steven Levinson, Paula Nakayama and James Burns, with a concurring opinion by Justice Mario Ramil.

Hawaii's law defining marriage as between one man and one woman "must be given full force and effect," the decision says.

Deputy Attorney General Dorothy Sellers said the amendment is "self-effectuating" and that the Legislature does not need to consider the issue again.

The case now will be sent back to Circuit Court for an entry of judgment in favor of the state and against plaintiffs Ninia Baehr and Genora Dancel, Tammy Rodrigues and Antoinette Pregil, and Pat Lagon and Joseph Melillo.

Kathleen Racuya-Markrich, spokeswoman for Gov. Ben Cayetano, said the governor would not issue any statement on the ruling.

Mike Gabbard, chairman of the Alliance for Traditional Marriage, which embarked on a campaign last November urging voters to approve the amendment, yesterday thanked the high court for affirming what his group has known all along, "that marriage by God's definition is between opposite-sex couples."

Nearly 70 percent of Hawaii voters chose to maintain the traditional definition of marriage as between one man and one woman, he said.

Gabbard said he hopes traditional marriage supporters in Vermont, who are awaiting a decision from their Supreme Court on the same issue, "will take heart and be encouraged by our victory."

Kelli Rosati, executive director of Hawaii Family Forum, praised the long-awaited decision, calling it a "great day for the people of Hawaii and for the institution of marriage. ... Now, the people of Hawaii can focus on strengthening the institution of marriage as we know it as we move into the new millennium," Rosati said.

Jack Hoag of Save Traditional Marriage 1998 said he was pleased the court heard the voice of the vast majority. He said he hopes the ruling ends the debate that has splintered the community into many groups and that these groups can be unified in more productive pursuits.

But Carolyn Golojuch, president of Parents, Family and Friends of Lesbians and Gays, said she felt "betrayed" by the ruling, which she described as "unfair."

She said the Supreme Court was supposed to decide on marriage rights, not on a decision reached in an election that had the second-lowest voter turnout in Hawaii history.

The ruling shows justice is not blind, she said. "Justice looks at and listens to the bias and prejudice in the United States, especially here in Hawaii."

The court ruled on the effect of the marriage amendment and not on the merits of a 1996 ruling by Circuit Judge Kevin Chang that said the state had failed to show any compelling reason to ban same-sex marriages.

Chang had ruled that the sex-based classification in Hawaii's marriage law was unconstitutional because it violated the state Constitution's equal protection clause. He ordered the state to grant the couples marriage licenses.

However, Chang stayed his order for a year to allow the state to appeal, which it did. Before the Supreme Court could rule on his decision, though, voters overwhelmingly ratified the constitutional amendment.

Foley said despite yesterday's defeat on the marriage licenses, there is a silver lining because the court did not reverse its landmark 1993 decision, which said the state cannot deny the rights and benefits of marriage to same-sex couples.

In that decision the Supreme Court agreed with Foley's arguments and ruled the state's ban on same-sex marriage violated the state Constitution's equal protection clause. It sent the case to trial, which was held before Chang.

Matt Matsunaga, co-chairman of the Senate Judiciary Committee, who spearheaded the state's efforts to craft a 1997 law giving gay and unmarried couples some of the benefits enjoyed by married couples but without the marriage license, said the high court's decision came as no surprise.

"We fully expected that the court would rule that the constitutional amendment that we passed was effective," he said. But he agreed that the court left the door open for the argument that marital rights and benefits should be conferred on same-gender couples.

"We had attempted to address the court's equal rights arguments with the passage of our reciprocal rights bill," Matsunaga said. "We are unsure of the effectiveness of the reciprocal beneficiaries rule because the court was silent on the rule."

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Star-Bulletin writers Rick Daysog and
Pat Omandam contributed to this report.

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Judiciary ‘copped out,’
says lawsuit partner

By Crystal Kua
Star-Bulletin

Lights from two Christmas trees paint a warm glow on the walls of the cozy Waikiki apartment where Joe Melillo sits.

While a friend prepares dinner, Melillo is plopped comfortably on a sofa.

His cellular phone rings. The call is from a local television station asking for his appearance on its morning news show.

While he ponders the request, Melillo points out how society's attitudes toward same-sex issues are changing.

In the nine years since Melillo; his partner, Patrick Lagon; and two other gay couples filed suit for the right to marry in Hawaii:

Comedienne Ellen DeGeneres' TV character Ellen revealed that she is a lesbian.

Other states -- such as Vermont -- have been discussing whether to allow gay couples to marry.

Depiction of gay relationships is no longer a taboo subject in movies, TV and other media.

"The issue of same-gender relationship is now more acceptable to the general public," Melillo said. "Everybody feels more comfortable with same-gender relationships, and eventually equal rights will prevail. It's just a matter of time."

Yesterday's decision by the state Supreme Court left Melillo feeling a bit empty because he said the justices used a "technicality" to decide the issue instead of ruling on the legal ramifications.

"I felt a little let down. I just felt that the Judiciary here is a bunch of wimps ... that they just copped out," he said.

Melillo argued that the issue was "legally decided in two courts" -- referring to the Supreme Court's landmark 1993 decision that ruled same-sex couples have a right to marry unless the state can show a compelling state interest to ban such marriages; and Circuit Judge Kevin Chang's decision that the state failed to show a compelling state interest to justify sex discrimination in the marriage law.

"It's a good feeling that we did it. We brought it out into the public. It's nice that people can now talk about it," he said. "I don't feel like we lost. What we've done in nine years, we did a lot for the equal rights movement."

But Melillo also is a realist.

"There are still a lot of people who aren't going to accept homosexuality no matter what they're told. If that's the way life is for them, then that's the way life is for them. I wouldn't attempt to try to change their minds," he said.

"But I think the majority of people in this world today feel more comfortable with same-gender relationships now that it's been brought to the public."

Even with last year's vote for a constitutional amendment to ban same-sex marriage, Melillo said the numbers were still promising.

"To have the number of people vote for same-gender marriage, I think we accomplished quite a bit. It's a big step forward."

Despite the advances, Melillo and Lagon still endure struggles.

An effort to establish themselves as "tenants-by-entirety" on their property deed, as provided for by the state's reciprocal benefits law, turned into a long battle with escrow companies challenging that designation. But now that they have gone through it, it may be easier for other same-sex couples to pursue.

"It's been very tough on our life," Melillo said.

Despite yesterday's ruling, they plan to push on with marriage.

They could go to Vermont, where its Supreme Court is currently mulling over the issue, with a decision expected anytime now.

Vermont may be more receptive: It already allows gays to adopt children and has a gay rights law and a hate crimes statute.

If same-sex marriage becomes legal in any other state, the first thing Melillo and Lagon plan to do is get the license, get married in that state and seek recognition of that marriage in Hawaii.

"I think marriage means something to everybody. Otherwise, why would so many people get married?" Melillo said. "It means to us that we can express our love and concern for each other in a ceremony."

With their Catholic upbringing, marriage was something that Melillo and Lagon grew up accepting as part of life.

"We just knew we would grow up, get married and live happily ever after," he said.

When asked if they could still live happily ever after without being married, Melillo replied: "We could. But it wouldn't be as complete."

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Same-sex marriage:
The case history

The same-sex marriage case began in 1990, when state Health Department officials denied marriage licenses to two female couples and one male couple.

They sued the state in 1991, launching years of legal and political battles within the courts and state Legislature.

The state Supreme Court issued its landmark opinion in 1993, finding that same-sex couples have a right to marry unless the state can provide a compelling reason to ban such unions.

In December 1996 a Circuit Court judge ruled that the state failed to show a compelling reason. The state appealed.

Yesterday, the Hawaii Supreme Court sided with the state and overturned the Circuit Court's 1996 ruling.

Key dates in
same-sex marriage:

Dec. 17, 1990: Ninia Baehr and Genora Dancel, Joe Melillo and Patrick Lagon, and Tammy Rodrigues and Antoinette Pregil apply to the state Health Department for marriage licenses. Officials deny the licenses, saying the state marriage law allows only a man and a woman to marry.

May 1, 1991: The three same-sex couples sue the state for the right to marry, alleging that the state violated their privacy rights, due process and equal protection. They argue that the state's broad privacy clause gives them freedom in marital, sexual and reproductive matters.

Sept. 3, 1991: Then-Circuit Court Judge Robert Klein rules that same-sex couples do not have a fundamental right to marry, but says he will explore whether they have a right to marry under the state's equal protection clause.

Sept. 9, 1991: Klein continues his ruling, finding that same-sex couples do not qualify for protection under the state's privacy or equal protection laws. He also rules that restricting marriage to a man and a woman is a "rational, legislative effort to advance the general welfare of the community." The couples appeal.

May 5, 1993: The Supreme Court rules that same-sex couples have a right to marry unless the state can provide a compelling reason why it should ban such unions. (In its ruling the Supreme Court agreed with the same-sex couples, saying they have a constitutional right to marry. But it did not base its decision on the state's privacy clause, as the couples argued. Associate Justice Steven Levinson wrote the opinion, basing it instead on the state Constitution's equal protection clause. He said the state violated the clause by discriminating against the couples on the basis of gender. Chief Justice Ronald Moon signed the opinion. Substitute Associate Justice James Burns concurred with the decision but offered a different rationale. Substitute Associate Justice Walter Heen disagreed, saying allowing same-sex marriage would have far-reaching and grave repercussions on the finances and policies of governments and institutions. Former Associate Justice Yoshimi Hayashi supported Heen's position.)

May 27, 1993: The Supreme Court denies a state motion to reconsider its ruling. The state had argued that the law restricted marriage to opposite-sex couples and that it should be maintained for the sake of children and moral values. New Associate Justice Paula Nakayama also signs Levinson's opinion, converting the plurality opinion into a majority one.

April 1994: In reaction to the Supreme Court decision, the Legislature amends the marriage law to specify that marriage is between a man and a woman. Legislators also create a Commission on Sexual Orientation and the Law to study the issue. Gov. John Waihee signs the bill into law two months later.

December 1995: After four religious members are removed from the commission because of a court challenge, the commission submits a report to the Legislature recommending that it legalize same-sex marriage or establish domestic partnerships as an alternative.

Jan. 24, 1996: The Supreme Court rules that the Church of Jesus Christ of Latter-day Saints cannot intervene in the same-sex trial. The Mormons had argued that the state could not adequately represent their position.

March 12, 1996: Circuit Judge Kevin Chang rules that eight lawmakers cannot intervene in the case, saying that the state attorney general has the exclusive right to represent the state.

March 1996: The Legislature fails to reach agreement on a constitutional amendment to ban same-sex marriage and to create domestic partnerships.

December 1996: Judge Chang rules that the state failed to show a compelling reason to justify sex discrimination in the marriage law and orders the state to issue marriage licenses to same-sex couples pending an appeal to the state Supreme Court.

April 1997: The Legislature passes a bill to place the same-sex amendment question before the voters and provide "reciprocal benefits" to those who cannot legally marry.

November 1998: General election voters say yes to amending the state Constitution to give the Legislature the power to reserve marriage to opposite-sex couples. The vote: 69 percent (285,381 voters) say yes; 29 percent (117,827 voters) say no; and 2 percent (8,422 voters) leave blank votes.

Legislative action:

1994 session: Lawmakers approve a bill that defines marriage as a union between a man and a woman, tells the courts to leave the matter to lawmakers and establishes the Commission on Sexual Orientation and the Law to study the benefits same-sex couples do not receive because they cannot marry. Lawmakers also reject attempts to pass a constitutional amendment to stop same-sex marriage.

1995 session: Lawmakers pass a bill to create a new commission after a court challenge bumps its four religious members. On Dec. 15 the commission submits a report to the Legislature recommending it legalize same-sex marriage or establish domestic partnerships as an alternative. Lawmakers do not act on bills to create a domestic-partnership status for same-sex couples or constitutional amendments to stop same-sex marriage. The Senate favors domestic partnerships, but the House opposes such a status.

The polls:

Public approval rating for same-sex marriage in several Star-Bulletin polls over the years:

April 1991 -- 34%
June 1993 -- 30%
November 1993 -- 31%
March 1996 -- 32%

Results of the vote During the November 1998 general election, voters approved an amendment to the Constitution which read, "The Legislature shall have the power to reserve marriage to opposite-sex couples." Yes 69% (285,381) No 29% (117,827) Blank votes 2% (8,422)

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Same-sex marriage:
Past articles