The national conversation about gay marriage began here in 1993. That’s when the Hawaii Supreme Court issued a ruling that denying same-sex couples marriage licenses violated the state’s constitutional equal-protection provisions. It was the first state high court to do so.
Since then, however, Hawaii’s position on the issue has been increasingly contentious. The current state administration’s divided stance, unveiled last week, underscores the lack of consensus on an emotional issue and makes it doubtful that Hawaii can do more than wait for the courtroom battles to play out, starting with the one in Honolulu.
In December, Natasha Jackson and Janin Kleid filed suit in federal court against Gov. Neil Abercrombie and state Department of Health Director Loretta Fuddy for denying them a marriage license when they applied the previous month. The couple argued that the state law breached their rights under the U.S. Constitution, among a list of allegations. That law defines marriage as reserved for one man and one woman, backed by an amendment added to the state Constitution by popular vote in 1998 allowing state legislators to define marriage as such.
Abercrombie and Fuddy submitted separate legal responses to the federal suit on Tuesday, the health director stating that she would defend state law on all counts. The governor, by contrast, said essentially that he would side with the plaintiffs on the central U.S. constitutional point, while defending the state on allegations about violations of federal civil-rights law and against the state’s liability for monetary damages.
The state’s attorney general plans to have separate teams representing Abercrombie and Fuddy. It’s unclear how exactly this will play out, but it’s left the general public pretty confused about the state’s position, and with good reason.
At some point in recent years, the governor’s position must have changed. That’s not surprising by itself: Opinion polls have shown a national migration on the issue, with many showing same-sex marriage in favor with a majority.
But it doesn’t line up with what Abercrombie said during the 2010 gubernatorial campaign, when he said he voted for the 1998 constitutional amendment because he believed the Legislature should have the prerogative to define marriage in law.
He should have done a better job squaring that with his current assertion, essentially that this legal heterosexuals-only definition violates equal-protection and due-process provisions of the U.S. Constitution. Instead, his office issued the following terse written statement:
"Under current law, a heterosexual couple can choose to enter into a marriage or a civil union. A same-sex couple, however, may only elect a civil union. My obligation as governor is to support equality under law. This is inequality, and I will not defend it."
It would have shown greater courage for him to make such a clear statement in 2010, when he seemed more intent to hew closely to his support of civil unions as distinct from marriage. New York Gov. Andrew Cuomo was more admirably straightforward with his position favoring marriage equality during his own campaign.
That said, few people who followed Abercrombie’s career could have been surprised by his recent statement, given that he had a long legislative record while in Congress opposing the federal Defense of Marriage Act and co-sponsoring several measures seeking to safeguard rights for more same-sex couples.
In 2010, in an interview with Star-Advertiser writer Derrick DePledge, Abercrombie also said that he did not think the state should reopen the debate on same-sex marriage, as it may be bound for the nation’s Supreme Court.
That appears, more than ever, to be its inevitable fate. The Hawaii case or any number of other challenges may be the vehicle for such a decision.
If anything, last week’s announcement shows there is neither the consensus among the state’s leaders nor a likely candidate to lead a legislative charge for repealing the state’s marriage definition, and for enabling same-sex marriage in Hawaii, as New York, California and, most recently, Maryland have done.
Whatever the Legislature might have done, it’s now a matter for the U.S. District Court, and letting it play out there is the most rational course for this state.
That may not be an unreasonable outcome. Same-sex marriage, like other major societal changes, is an issue that will take years to finally settle. It may happen sooner, if public opinion accelerates its shift to the point that DOMA is repealed nationally.
Until that happens, it’s hard to see how Hawaii can do more than hear out the legal arguments, and make its own case. Or cases.
