Map highlighting Hawaii and its unique type of defense of marriage amendment

Lesbian, Gay, Bisexual, Transgendered
Rights in Hawaii

Baehr v. Lewin (1993) Baehr v. Miike (1996, 1999) Constitutional Amendment 2 (1998) House Bill 444 (2009) Senate Bill 232 (2011)
LGBT rights in the United States Recognition of same-sex unions in Hawaii Reciprocal beneficiary relationships in Hawaii
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The U.S. state of Hawaii currently recognizes same-sex couples in reciprocal beneficiary relationships, which provide limited rights and benefits. Civil unions that provide benefits similar to marriage were legalized in 2011, and will become available in 2012. Same-sex marriage is banned by state law.

Following a 1993 decision by the Hawaii State Supreme Court that found the state's refusal to grant same-sex couples marriage licenses discriminatory, voters in 1998 approved a constitutional amendment granting the Hawaii State Legislature the power to reserve marriage to opposite-sex couples, which it later did by passing a law that banned same-sex marriage.^[1] Bills creating civil unions were considered several times, but failed to receive approval in legislative committees before 2009.^[1] In 2010, Hawaii House Bill 444 (HB 444), which would have created civil unions for same-sex and opposite-sex couples, passed the Hawaii House of Representatives and the Hawaii Senate.^[2] It was vetoed by Governor Linda Lingle in July 2010.^[3]

A bill substantively similar to HB 444, Senate Bill 232, was passed on January 26, 2011, by the Senate Judiciary and Labor Committee in a 3-2 vote^[4], and was passed by the full Senate 19-6 on January 28^[5]; a modification to the bill was then made in the House of Representatives before passage on February 11 by a vote of 31-19.^[6][7] The Senate passed the revised bill on February 16, and Governor Neil Abercrombie signed it into law on February 23. Civil unions will begin on January 1, 2012.^[8]

[edit] Background

[edit] Baehr case (1991–1999)

Baehr v. Miike (originally Baehr v. Lewin) was a case decided by the Supreme Court of Hawaii, which found the state's refusal to grant same-sex couples marriage licenses discriminatory. In 1991, three same-sex couples sued Hawaii Director of Health John C. Lewin in his official capacity, seeking to force the state to issue them marriage licenses. After the case was dismissed by the trial court the couples appealed to the state supreme court. In the plurality opinion delivered by Judge Steven H. Levinson in 1993, the court ruled that while the right to privacy in the Hawaii state constitution does not include a fundamental right to same-sex marriage, denying marriage to same-sex couples constituted discrimination based on sex in violation of the constitutional right to equal protection. The court remanded the case to the trial court, instructing that "in accordance with the 'strict scrutiny' standard, the burden will rest on Lewin to overcome the presumption that HRS § 572-1 [the state's marriage statute] is unconstitutional by demonstrating that it furthers compelling state interests and is narrowly drawn to avoid unnecessary abridgments of constitutional rights."^[9]

In 1996 Judge Kevin K.S. Chang ruled that the state did not meet its evidentiary burden. It did not prove that the state had a compelling interest in denying marriage licenses to same-sex couples and even assuming that it had it did not prove that HRS § 572-1 was narrowly tailored to avoid unnecessary abridgement of constitutional rights. He enjoined the state from refusing to issue marriage licenses to otherwise-qualified same-sex couples.^[10] The following day Chang stayed his ruling, acknowledging the "legally untenable" position couples would be in should the Hawaii Supreme Court reverse him on appeal.^[11]

On December 9, 1999, the Hawaii Supreme Court, following the passage of a constitutional amendment empowering the Hawaii State Legislature to limit marriage to mixed-sex couples, ruled that "The passage of the marriage amendment placed HRS § 572-1 on new footing. The marriage amendment validated HRS § 572-1 by taking the statute out of the ambit of the equal protection clause of the Hawai'i Constitution, at least insofar as the statute, both on its face and as applied, purported to limit access to the marital status to opposite-sex couples. Accordingly, whether or not in the past it was violative of the equal protection clause in the foregoing respect, HRS § 572-1 no longer is. In light of the marriage amendment, HRS § 572-1 must be given full force and effect." Because the remedy sought by the plaintiffs – access to marriage licenses – was no longer available, this reversed Chang's ruling and remanded the case for entry of judgment in favor of the defendant.^[12]

[edit] Constitutional Amendment 2 (1998)

Following the state supreme court's 1996 decision, voters in 1998 approved a constitutional amendment granting the Hawaii State Legislature the power to reserve marriage to opposite-sex couples.^[1] Civil unions were not restricted.^[1] Bills to establish civil unions were considered several times but failed to receive committee approval prior to 2009.^[1]

Following Governor Linda Lingle's veto of the 2009 civil unions bill, the American Civil Liberties Union and Lambda Legal filed Young v. Lingle on behalf of six same-sex couples. The suit, while acknowledging that the state has the constitutional authority to limit marriage to mixed-sex couples, asserts that the state constitution still mandates that same-sex couples be accorded equal treatment.^[13]

[edit] Civil unions

On February 16, 2011, Hawaii's House passed the civil unions bill that will allowing same-sex and different-sex couples to enter into a civil union. Governor Neil Abercrombie signed the bill on February 24, 2011 and civil unions will begin on January 1, 2012.^[14]

[edit] Economic Impact of Allowing Same Sex Marriage in Hawaii

A June 2010 study conducted by UCLA indicated that same-sex couples would spend between $4.2 and $9.5 million dollars on their wedding celebrations, if allowed to marry in Hawaii. Out-of-state guests would spend an additional $17.8 to $40.3 million dollars, which would in turn create 193 to 333 new jobs in Hawaii primarily in the events and travel industries. The figures in the study are estimated based on a four year period.^[15]

[edit] References