The landmark U.S. Supreme Court ruling striking down provisions of the federal Defense of Marriage Act has raised a host of questions and uncertainties for gay and lesbian couples in Hawaii and other states that don’t recognize same-sex marriage.
Advocates here say these lingering uncertainties present a strong incentive for the state Legislature to quickly replace Hawaii’s civil unions law with one allowing same-sex marriages.
"It’s going to be part of an education effort with the Legislature as to why marriage matters," said Donald Bentz, executive director of the Equality Hawai‘i Foundation.
On Wednesday, in a 5-4 decision, the Supreme Court threw out DOMA provisions that barred more than 1,100 federal marital rights and benefits to legally married same-sex couples.
After the initial jubilation over the ruling among same-sex marriage advocates, questions on how the ruling affects gay and lesbian couples arose throughout the country and at the highest level of government.
President Barack Obama said Thursday he asked all federal agencies to review federal laws and administratively provide benefits to legally married same-sex couples regardless in which state they live.
Obama, speaking to reporters on a trip to Senegal, said White House and Justice Department lawyers had been combing through federal statutes even before the court struck down DOMA. A key issue, according to administration officials, is how to treat couples who married in a state that recognizes same-sex unions but who live in a state that does not.
"If you’ve been married in Massachusetts and you move somewhere else, you’re still married," Obama said, but added that he was "speaking as a president, not a lawyer."
In Hawaii the state’s civil unions law also adds a wrinkle.
The law, passed in 2011, allows couples to enter into a civil union and receive the same rights and benefits of marriage under state law, but not federal benefits because the union is not considered a marriage. Hawaii has recognized 942 civil unions since the law became effective at the start of 2012.
Under the statute, a married couple cannot enter a Hawaii civil union, but it does not appear that a couple in a Hawaii civil union is prohibited from getting married in a state that allows same-sex marriages. Once married in another state, the same-sex couple’s relationship would be considered a civil union in Hawaii.
State officials are sorting out whether couples must dissolve their civil union to get married in another state and whether the dissolution must be before or after they wed.
Bentz, of the Equality Hawai‘i Foundation, said because of the requirement that couples not be married when they enter a civil union, they probably would want to dissolve the relationship before they get married.
But officials with the state Department of Health said they do not either dissolve the unions or register the dissolutions. They said state attorneys are reviewing whether and when the couples’ civil unions should be dissolved.
The uncertainties are helping to fuel calls by some local advocates and lawmakers for the Legislature to convene a special session and pass a same-sex marriage bill immediately, rather than wait until the 2014 session.
If Hawaii legalizes same-sex marriages, it would make clear that those couples are entitled to all the federal marital rights and benefits of marriage, said Peter Renn, Los Angeles staff attorney for Lambda Legal, a nationwide organization supporting civil rights for gays and lesbians.
In the meantime, Lambda Legal recommends that couples in states that do not recognize same-sex marriages consult with a lawyer before going to another state to get married to avoid suffering financially if they are receiving certain government benefits.
Renn also said Lambda Legal has yet to review all the federal marriage rights and benefits, but said married same-sex couples now living in states that don’t recognize those marriages would be entitled to a majority of those rights and benefits.
He said some tax and Social Security rights and responsibilities may still be barred. One example, he said, is that legally married same-sex couples might not be able to file joint federal tax returns if they live in states without same-sex marriages.
Those types of Internal Revenue Services practices could change under Obama’s directives, but other changes might require congressional action to amend laws, Renn said.
In a companion ruling Wednesday, also by a 5-4 vote, the Supreme Court cleared the way for same-sex marriages to resume in California. Other states that recognize same-sex marriages are Connecticut, Iowa, Maine, Maryland, Massachusetts, New Hampshire, New York, Vermont and Rhode Island, according to Lambda. Delaware will recognize those marriages on Monday, and Minnesota and Rhode Island on Aug. 1.
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The Los Angeles Times contributed to this report.
