Chapter 3

APPROPRIATE ACTION WHICH MAY BE TAKEN BY THE LEGISLATURE TO EXTEND SUCH BENEFITS TO SAME-SEX COUPLES

The Commission's last task as assigned by Act 5, really had two steps. As stated the third task was to

"(3)Recommend appropriate action which may be taken by the legislature to extend such benefits to same-sex couples."

In Chapter 1, the Commission identified major legal and economic benefits that are extended to married couples that are not extended to same-gender couples. Then, in Chapter 2, the Commission discussed the arguments surrounding how they arrived at adopting four substantial public policies to extend those benefits. The adoption of those policies to extend all benefits to same-gender couples has bearing on this third task assigned to the Commission. Because the Commission has determined that substantial public policy exists to extend all benefits, the Commission had to reject any legislative option that does not provide that. A list of the options that were considered follows:

I. Options Considered

A.No Action

The Commission could recommend no action and keep the marriage law as it reads currently, allowing only a man and a woman to apply for a marriage license. This option is available only if no benefits are to be extended. Ironically, by taking this action, one testifier predicted that the Circuit Court may decide that the State has not shown a "compelling state interest" that is narrowly drawn and would order the State to issue marriage licenses to same- gender couples who apply and meet the requirements, therefore awarding all the benefits and responsibilities of full marriage(1). On the other hand the Court could interpret a no-action recommendation by the Commission and by the legislature to mean the legislature believes the current law reflects the current public policy.

B.Domestic Partnership

1.Limited Domestic Partnership that Extends Some Rights, Not All

If the Commission recommended a domestic partnership law that included the extension of some benefits but not all, it would most likely be considered a law to be exercised within the limits of the State, and it is unlikely that it would be recognized in other jurisdictions not subject to State law. Benefits extended under this type of arrangement would most likely include benefits as a result of being a public employee and might include an extension of filing under a "married" status for same-sex couples under Hawaii's income-tax law.

2.Comprehensive Domestic Partnership

A comprehensive domestic partnership law would essentially extend all the possible(2) benefits and responsibilities of marriage to same-sex couples but through a different chapter in the law. The treatment of domestic partners would be similar to that of spouses under the marriage law. Domestic partners would be recognized as spouses throughout the Hawaii Revised Statutes. This comprehensive domestic partnership law, while not providing for real marriage, has been suggested to "moot" the Baehr v. Miike3case by providing all the incidents of marriage. In the words of the First Deputy Attorney General, "If it walks like a duck and talks like a duck, it's probably a duck"(4). The Commission disagrees. Under the Baehr decision case, adopting domestic partnership would not grant equal protection under the law.

C.Separate Religious Marriage and Civil Marriage

The option to separate religious marriage and civil marriage was suggested by two people who provided testimony to the Commission(5). The concept is based on the constitutional provision of separation of church and state. The procedure to marry under the current law requires the State to issue a license and then to have the couple solemnize the relationship in a ceremony performed by an individual licensed to solemnize marriages(6). These individuals are members of religious organizations ordained or authorized to perform marriage ceremonies or they are judges, justices or magistrates(7). While it is not uncommon to have a judge or justice marry a couple, it is more common to have the ceremony performed by a religious individual. This recognition by the State of a religious figure to authenticate the marital vows and entitlement to the benefits of marriage is peculiar from the perspective of the separation of church and state arguments. This somewhat contradictory structure is further confused by excluding the participation of the religious organizations if the marriage fails, leaving the dissolution strictly to the courts, much to the dismay of one testifier(8).

This concept would provide a civil marriage that included the application of the license, and an oath or affirmation of the marriage vows by an authorized state individual who is completely separate from, and independent of, any religious ceremony that may be performed. The State would not need to license religious individuals to perform ceremonies, but they could perform any ceremony their religious beliefs recognize. There would be no need to have a religious ceremony if the couple did not desire. Likewise, the religious ceremony could be performed without state recognition, which is currently the case for same-sex couples. All the benefits and burdens of marriage under the law would be bestowed by the civil marriage. This option would extend all the benefits of marriage to same-sex couples and at the same time make optional the now-required step of a religious or judicial solemnization.

D.Allow Marriage

Allowing marriage of same-sex couples would necessarily extend all the benefits currently enjoyed by opposite-sex couples. It would be the strongest statement with regard to those same-sex couples who present their married status in other jurisdictions.

E.Provide for Civil Registration or Something New

This option is intended to consider providing for some type of new registration for everyone. This option would probably use a new chapter in the law to provide for some type of spousal registration. The requirements would be similar to the current marriage law but it would incorporate the separation issues as suggested in the option outlined in "C." above. Necessarily this type of legislation would also have to repeal the current marriage law. This option has the potential to create legal problems for the existing married couples in the State.

F.Repeal Marriage

The option to repeal marriage was presented to the Commission. Members of the public who testified before the Commission presented interesting ideas. One suggested that the marriage law is not perfect and needs to be fixed even for different-gender couples(9). Another suggested that the only way to make everyone equal is to not give any benefits to anyone. If the marriage law is repealed, then no one would receive any benefits.

G.Constitutional Amendment Allowing Marriage Between a Man and Woman Only

A constitutional amendment to the State of Hawaii Constitution allowing marriage between a man and a woman only is an option that would effectively moot the case. The Supreme Court of Hawaii is the ultimate interpreter of the State Constitution, and an amendment specifically prohibiting marriage between people of the same-sex would make the Baehr v. Lewin opinion incorrect. This option would not extend any benefits to same-sex couples.

H.Other Redefine the Terms Family and Immediate Family.

The option to define the terms family and immediate family throughout the Hawaii Revised Statutes was proposed to the Commission. By redefining family to include individuals who maintain households and share the expenses and necessities of life, the Commission could pick and choose individual benefits to confer to same-gender couples. The legislation for this option could be very lengthy and cumbersome.

II. Full Faith and Credit Issues

The Commission heard testimony from several sources(10) concerning the full-faith and credit clause of the United States Constitution. The testimony suggests that because no state currently allows same-gender marriages, if the State of Hawaii were to allow them, a rash of litigation would spring up across the country from those couples who came to Hawaii to get married. The couples would return to their home states and expect to be recognized as married. Legal scholars generally agree it is not clear what will happen.11 While the Commission is cognizant of this problem, the issue is beyond the scope of the assigned tasks.

III. Residency Requirements

The Commission received testimony on the option of imposing a residency requirement. A residency requirement has been suggested as a method to avoid an influx of gay tourists, although like income taxes, a residency requirement is a double-edged sword. A residency requirement in the marriage law would be an effective tool to dramatically decrease the number of Hawaiian weddings by all visitors to Hawaii including the marriages of Japanese nationals. At the same time a residency requirement may encourage those who would not otherwise do so, to move to the State and establish residency. These arguments would also apply if a comprehensive domestic partnership law is used to extend benefits to same-gender couples. The Commission believes that imposing a residency requirement would not be beneficial to the State.

IV. Conclusions

The Commission finds that married couples of the same gender are entitled to equal protection under the law and thus should be conferred governmental certification of their marriages. Therefore the Commission must reject all options stated above that do not confer full benefits.

It has been suggested that an appropriate action that might be taken by the Legislature in ending this gender discrimination is the passage of a domestic partnership bill. The Commission finds, however, that a domestic partnership is defined in a leading article on the topic as "two people living together in a committed, mutually inter-dependent relationship." Further, that laws governing domestic partnerships "apply uniformly to all couples," different-gender and same-gender, with a majority of the current government-certified domestic partners on the mainland United States being of different genders. Such couples are also sometimes referred to as "unmarried partners." The numbers of these unmarried partners have shown a significant increase over the last decade(12).

The Commission finds that domestic partnership laws are designed for couples of whatever gender who do not want to get married, but who wish some legal form of protection and commitment that falls short of the protection and commitments inherent in marriage and government certification of marriage.

The Commission considered the options that would repeal benefits for everyone and rejected them as causing more problems than they solve. Therefore the Commission rejects the repeal of marriage.

The option to amend certain statutes to redefine family is rejected because it would have to amend each of the statutes in Appendix B. The Commission finds that approach to be complex, unwieldy, and unnecessary.

The option to create something new would effectively take a step towards the option of separation of the church and state in government certification of marriage, but both these options would cause more problems than they would solve. While the Commission finds this may eventually become a feasible, non-discriminatory way to address the issue, at this time it appears too unwieldy and complex.

The recommendation of the Commission is to extend all the benefits to same-gender couples by allowing them to marry. The Commission recognizes that certain religious groups fear that they will somehow be forced to celebrate the religious marriage ceremonies for couples that they disapprove of. The legislation recommended to the Legislature should include provisions to ensure that no religious group is compelled to celebrate marriage for any couple it disapproves of. The proposed bill, as contained in Appendix D, attached hereto, therefore contains such religious protection language.

The Commission additionally finds that with the recommended proposed bill, same-gender couples might fear that their certificates will somehow not be recognized by other jurisdictions. While no bill can be crafted that would guarantee recognition by other jurisdictions, legislation recommended to the Legislature includes provisions to safeguard that certificates awarded by the State will be recognized in other jurisdictions. The proposed bills, as contained in Appendix D, therefore contain such language.

The Commission acknowledges that approval of a bill allowing same-gender couples to marry may be politically difficult. This local political and sociological environment approximates the interracial marriage environment described in the Loving case thirty years ago on the mainland, where legalization of interracial marriage occurred by judicial order instead of by legislative action.

It has been suggested that a State comprehensive domestic partnership act be recommended in lieu of extending the marriage statute to same-gender couples. The Commission disagrees. Under the Baehr decision case, adopting domestic partnership would not grant equal protection under the law. Although the Commission recognizes that domestic partnership would create a separate-but- "equal" solution, at least the extension of many marriage benefits would reach more couples. A sample bill along these lines is contained in Appendix D.

State-recognized domestic partnership would create a new status in addition to marriage, and the results of such an act are uncertain. Two items are reasonably certain. First, it would have to be open to different-gender couples. Second, it might encourage same-gender couples to move permanently to Hawaii as the benefits of the comprehensive domestic partnership may not be transferable to their home states.

The Commission has found that couples of the same gender are marrying today, and that these marriages are entitled to equal protection under the law and should be granted all the benefits and should take on the obligations conferred by governmental certification of marriages.

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