Civil Debate: 'If it walks like a duck,' it likely is


POSTED: Wednesday, May 26, 2010

Former Hawaii Justice Steven Levinson's recent pronouncement regarding House Bill 444 and same-sex marriage issue must be scrutinized (”;State Constitution denies same-sex couples right to marry,”; Star-Bulletin, Island Commentary, May 17).

Judge Levinson wrote the 1993 Baehr Hawaii Supreme Court decision, the only high court decision in the United States that held that marriage laws discriminated on the basis of sex. The Baehr opinion obviously favors same-sex marriages.

Levinson recently publicly urged Gov. Linda Lingle to be of “;good will”; and sign HB 444 into law. Knowing Gov. Lingle has already publicly stated that HB 444 appears to be a same-sex marriage law, Levinson wrote that “;civil unions are not marriages, and same-sex couples in Hawaii have no state constitutional right to marry”; and that “;the Hawaii Constitution forbids the Hawaii courts from ruling otherwise.”;

Levinson is clearly trying to distance Hawaii from the well-known Kerrigan decision, in which the Connecticut Supreme Court held limiting of same-sex couples to civil unions while opposite-sex couples were entitled to marry constituted discrimination and violated the equal protection clause of the Connecticut constitution; and found (surprise!) same-sex couples were constitutionally entitled to marry. Levinson argued that Article I, section 23 of the Hawaii Constitution gives the Legislature the unqualified power to deny same-sex couples access to marriage.

I, and other attorneys, disagree with Levinson's opinion that the Hawaii Constitution forbids Hawaii courts from ruling otherwise. In fact, I find myself in that regard in unusual company, being in agreement with Senate President Colleen Hanabusa and Sen. Gary Hooser, who both argued that if HB 444 passes, the Hawaii Supreme Court might hold it unconstitutional because it uses the term “;civil unions”; rather than “;marriage.”;

We agree that the Hawaii Supreme Court can find that civil unions fall short of providing gays and lesbians with equal rights and therefore are in violation of the Hawaii equal protection clause, which is also part of Hawaii's Constitution.

Action by the state Legislature is always—always—subject to judicial scrutiny under the equal protection clause of Hawaii's Constitution, even if the Constitution allows the Legislature to have the power to reserve marriages to opposite-sex marriages. Here, Hawaii's Legislature is clearly changing the substance of marriage rights and benefits, when HB 444 states in paragraph 9 thereof that “;{p}artners to a civil union lawfully entered into pursuant to this chapter shall have all the same rights, benefits, protections, and responsibilities under law, whether derived from statutes, administrative rules, court decisions, the common law, or any other source of civil law, as are granted to those who contract, obtain a license, and are solemnized pursuant to chapter 572,”; the chapter of Hawaii law that pertains to marriage. All these rights and benefits are given, despite HB 444's preamble, which states the Legislature does not intend to revise the definition of marriage.

As the saying goes, “;If it looks like a duck ...”;

The governor is right: It is same-sex marriage by another name.

What about future federal court rulings? In California, the federal district court has under advisement Perry v. Schwarzenegger, which is considering the constitutionality of a voter-approved constitutional ban on same-sex marriage. Why can't a Hawaii federal district court also find HB 444 in violation of the federal equal protection clause by finding the distinction between civil unions and marriage an invidious discrimination of a fundamental right?

It is quite obvious that the more you tinker with Hawaii's marriage law, the more you are giving an opening for pro-gay marriage attorneys (aka the ACLU) to challenge the fine distinctions between marriage and other benefits such as contained in civil unions.

It is extremely clear from the numerous actions filed nationwide, that pro same-sex marriage advocates would do no less here in Hawaii, whether in state or federal court, until marriage by gays is found to be the same as marriage between heterosexuals, despite the “;civil unions”; distinction.

Anson Rego is an attorney in Hawaii.