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Commentary

New era in Hawaii: gay union legalized

/ 11:15 PM December 06, 2013

HONOLULU – As Supertyphoon “Yolanda”  (international codename: Haiyan) rained death and destruction on central Philippines on Nov. 8, an equally ferocious human storm was raging across the halls of the Hawaii State Legislature over the burning issue of same-sex marriage.

As many as 25,000 testimonies were presented by supporters and opponents of the bill that would make Hawaii the 15th state in America to legalize gay marriage.

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And when the final version of the same-sex marriage  bill was approved by the State Senate by a wide margin (19-4), it  was immediately signed into law by Gov. Neil Abercrombie on Nov. 13.  It was “paradise” for the jubilant supporters but “doomsday” for the distraught opponents.

As soon as the gay marriage licenses became available a few days later, a number of same-sex couples tied the knot as “bride and bride,” “groom and groom,” and “spouse and spouse.” Take your pick!

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At this writing, 46 gay couples have made their marriage vows and 133 more pairs are awaiting their approved licenses. An overwhelming majority of the pioneer gay newlyweds are Hawaii residents. But the state is expected to generate hundreds of millions in  revenue by becoming the gay marriage tourism capital in the Pacific, if not in the world, shortly.

Many of these couples have been together for many years  and have waited for this moment because, among other things, legal marriage entitles them to federal benefits which were previously given only to heterosexual couples.

The struggle for “marriage equality” has had a long and checkered history in Hawaii. Interestingly, after the first public gay parade, two women, partners Ninia Baehr and Genora Dancel, sued the state in 1991 for the right to marry, but were rejected by a circuit court. After a review of the case by Hawaii’s Supreme Court, however, then Associate Justice Steven Levinson wrote the decision that denying same-sex couples the right to marry violated equal protection rights provided by the state constitution. And the case was sent back to the circuit court.

In 1996, the federal government passed the Defense of Marriage Act (Doma) defining marriage as a union between a man and a woman.

As the controversy intensified, a constitutional amendment passed by nearly 70 percent of Hawaii’s voters gave the state legislature the power to reserve marriage for a man and a woman. This mooted the earlier Baehr v. Lewin decision.

Between 2005 and 2008, a series of “civil union” bills were introduced in the legislature; one of them was finally passed in 2009, but was later vetoed by the then governor, Linda Lingle, a Republican.

With a new Democratic state administration on board in 2011 headed by Governor Abercrombie, civil unions for gay partners went into effect as another lesbian couple filed a lawsuit claiming that the 1998 decision restricting the legislature to reserve marriage only between a man and a woman violated the due process and equal protection clauses in the US Constitution. The push for gay marriage became stronger.

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In 2013, a breakthrough in the impasse came when the US Supreme Court struck down a section of the Doma limiting marriage to a union between a man and a woman.

The renewed same-sex marriage initiative pressured Abercrombie to call a special session of the state legislature to consider a bill legalizing gay marriage in Hawaii. After several days of public testimony  from countless impassioned voices from opposite sides and a marathon hearing, Senate Bill 1 was finally approved and the governor signed it into law the following day.

Marriage licenses became available online on Dec. 2, or 22 years after the first gay couple sued the state of Hawaii for the right to marry.

The first state in America to legalize gay marriage, in 2004, was Massachusetts, making it only the seventh jurisdiction in the world to do so, following the Netherlands, Belgium and four provinces in Canada.

A significant provision of the new Hawaii law ensures that any member of the clergy, priest, minister, rabbi, or any other person authorized to perform marriage ceremonies will not be required to do so if it goes against their religious faith or beliefs. Additionally, the measure protects the clergy who refuse to perform gay marriage ceremonies from penalties, fines, injunctions and other administrative liabilities that may arise from their refusal.

It is the beginning of a new era in Hawaii society, but just like all beginnings, several challenges and issues are bound to come up as the complex ramifications of this historic law begin to play out. Right after the passage of the new law, for instance, a challenge as to its constitutionality was filed.

Although it was dismissed, other lawsuits are anticipated.

Dr. Belinda A. Aquino is professor emeritus at the University of Hawaii at Manoa where she was professor of political science and Asian studies and the founding director of the Center for Philippine Studies.

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TAGS: Belinda a. Aquino, Commentary, Gay union, Gender issues, hawaii, opinion, same-sex marriage, Yolanda
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