Lesbian couple denied right to marry in Hawaii, a 'civil union' state

by Mike Andrew - SGN Staff Writer

A federal district judge in Hawaii has ruled against a Lesbian couple who wish to marry instead of entering into a civil union, which is the legal form for recognizing same-sex relationships in Hawaii.

In a decision announced August 8, Judge Alan C. Kay said that legislatures, not courts, should decide how to recognize relationships.

'Hawaii's marriage laws are not unconstitutional,' Kay wrote.

'Nationwide, citizens are engaged in a robust debate over this divisive social issue. If the traditional institution of marriage is to be reconstructed, as sought by the plaintiffs, it should be done by a democratically elected legislature or the people through a constitutional amendment,' and not through the courts.

The lawsuit by Natasha Jackson and Janin Kleid argued that the two need to be married in order to get certain federal benefits. Co-plaintiff Gary Bradley wants to marry his foreign national partner to help him change his immigration status.

Their attorney, John D'Amato, said they would appeal.

Hawaii Health Director Loretta Fuddy, the named defendant in the suit, heads the state agency that denied the plaintiffs marriage licenses in accordance with existing Hawaiian law.

Hawaiian Gov. Neil Abercrombie was in the odd position of being a defendant in the lawsuit, as the state executive officer, while supporting the plaintiffs' claims, saying the state's ban on same-sex marriage is unconstitutional.

Abercrombie signed Hawaii's civil union legislation into law last year, while saying that he ultimately favors marriage equality. The new law allows both same-sex and opposite-sex couples to enter into a civil union with the same state rights and responsibilities as traditional marriage.

The state attorney general's office had to send two legal teams to the courtroom - one to represent Fuddy and uphold the state civil union law, and the other to represent the governor. James Walther, spokesman for the attorney general's office, said both teams would review the decision.

The Hawaii Family Forum was allowed to intervene in the case to argue that same-sex couples do not enjoy a constitutional right to marry. The group's attorneys also moved to dismiss Gov. Abercrombie from the case, but the court denied that motion.

GOVERNOR DENOUNCES RULING
Abercrombie said in a statement that he disagreed with the ruling upholding existing Hawaiian law, and would join with the couples if they decide to appeal.

'To refuse individuals the right to marry on the basis of sexual orientation or gender is discrimination in light of our civil unions law,' he said. 'For me, this is about fairness and equality.'

While this ruling seems to fly in the face of a string of federal court rulings that DOMA is unconstitutional, in fact this case involves a different legal issue, and it could be compatible with at least some anti-DOMA arguments.

The Hawaiian plaintiffs are claiming an affirmative right to marry so they and their partners can obtain specific benefits.

The DOMA cases that have been adjudicated so far have said that the federal government may not prevent same-sex couples from marrying or enjoying the rights and benefits of marriage when competent state authorities have already conferred those rights.

In other words, if the state of Massachusetts, for example, allows same-sex couples to be married, the federal government may not deny them the rights and benefits of marriage merely because they are same-sex, rather than opposite-sex, couples.

That claim is compatible with Kay's ruling that legislative action is the correct method to establish marriage rights, and it means that even if DOMA is ultimately overturned by the U.S. Supreme Court, same-sex couples may still face a state-by-state fight for equal marriage rights.

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