For six same-sex couples, the time for equal rights is now

HONOLULU—Imagine your spouse must go to a nursing home and needs government assistance to do it ... but you’re married and don’t have to worry about the government placing a lien on your house. If, however, you’re in a same-sex relationship, you may not even know you could be at risk of being forced out.

Property law, nursing home care, and financial risks are just some of the practical reasons why Lambda Legal and the American Civil Liberties Union (ACLU) of Hawaii filed a lawsuit on Thursday on behalf of six same-sex couples seeking the rights and responsibilities equal to those afforded to married couples by the State.

The complaint was in response to Governor Linda Lingle’s veto of House Bill 444, the bill that would have created civil unions for same- and opposite- sex couples, but the lawsuit isn’t asking for titles like “civil union” or “marriage.”

Lambda Legal, a national organization which advocates for the civil rights of lesbians, gay men, bisexuals, and transgender people, and Hawaii’s ACLU had already prepared the suit at the beginning of the 2010 legislative session when the final vote on the bill had been postponed indefinitely. At that time, some of the 33 House members who had supported the bill didn’t want the vote because they didn’t want to risk a veto. Despite passing the bill on the last day of the session, House members were not in a veto-proof majority and it indeed was the veto that came out of the governor’s office on July 6.

According to Jennifer Pizer, senior counsel for Lamba Legal, the organizations waited until Thursday to file the lawsuit because they “wanted to make it as clear and powerful as we knew it could be.”

Daniel Gluck of the ACLU of Hawaii and co-counsel on the lawsuit says although he had had initially been optimistic about what she would do, “Governor Lingle missed an opportunity to do the right thing to uphold her oath to honor the Constitution. She didn’t and here we are today.”

Tambry Young, the lead plaintiff in the complaint and her partner, Suzanne King, are also upset. “She is the leader of the State, “says King. “For her to not see this civil rights issue as an obligation to provide for us the same thing as heterosexual couples have was extremely disappointing.”

Young and King parent a daughter and are keenly sensitive to their parenting experiences compared to those of opposite gender parents. “I don’t know how many parents always carry their children’s birth certificates around,” says Young. She is their daughter’s biological mother but King must be ready at any time to prove her relationship to their child.

The couple has registered for reciprocal benefits but has found that even attorneys are uncertain what that means. King points to a recent situation: Her father died last fall and the family trust attorney met with King and her siblings. “He asked a question to transfer the property into all our names and all he wanted to know was if we were married or single. I said I have a reciprocal beneficiary with Tambry. He said, ‘I don’t know what that is.’”

The insensitivity and lack of knowledge of the trust attorney aside, Pizer also says there are too many holes in the reciprocal benefits provision and it’s too confusing to be “patched.” Worse, she says, is the presumption that same-sex couples aren’t real families—and why the same rules for all should be applied to the same problems. 

The goal is simple: Get everyone inside the legal system. Same-sex couples must deal with real life, too, including the unromantic and painful parts.

“Some relationships fall apart,” Pizer says. “For married couples, if a relationship fails, they are in the family court with a system of rules that makes sure things are done fairly in terms of property, debt, alimony, child support, visitation, and custody, all the things that people who once loved each other very much fight about fiercely. The reality is that same-sex couples are not that different from different-sex couples and breakups can be terrible—and same-sex couples are locked out of the family court.”

Hawaii has been on a convoluted path since the Hawaii Supreme Court decision in the Baehr v. Lewin case in 1993. The court agreed that same-sex couples could have been discriminated against in violation of the State Constitution’s equal protection guarantee—unless the State could provide its justification to deny the couples the right to marry. At the time, it seemed Hawaii might be on its way to pioneering gay marriage. But the State was not ordered to grant same-sex couples marriages licenses. Instead, the case went back to the lower court in 1996 with the State under scrutiny to prove that denying same-sex couples the ability to marry served its interests. Lambda Legal successfully led the counter effort showing that the State’s position lacked merit and same-sex couples should be allowed to marry.

The State’s appeal led to the Legislature’s approval of the proposed constitutional amendment to restrict marriage to opposite sex couples while prohibiting courts from ordering that same-sex couples could marry. A year later, in 1998, voters agreed, providing the basis for the “people have spoken” argument which has been the position of groups who opposed HB 444. Gluck says that’s a specious argument.

“When you look at the text of the constitutional amendment, it says the Legislature shall have the power to decide,” Gluck says. “So the Legislature, when it starts the session in 2011, could say it wants same-sex marriage and that would be consistent with the will of the people. Civil unions passed the Legislature with an overwhelming majority. It’s clear that through these elected officials that this is actually what the people of Hawaii want.”

Pizer and Gluck agree politics had its opportunity, but that those waiting for a guarantee of their civil rights now need to find its solution in the court. The question is how long it will take and if it will produce lasting change in Hawaii.

The last 17 years of often vitriolic accusations have galvanized national debate and helped to speed the approval of gay marriage in a handful of states, plus the District of Columbia, as well as civil unions and marriage-like legal protection to same-sex couples in several others states. However, there are still 41 states, including Hawaii, where marriage is defined as only between a man and a woman. At the moment, Pizer says that’s okay as long as all families and the diversity they represent are protected by the same laws.

We are supposed to have separation between church and state, yet certain religious organizations seem to believe their moral code concerning marriage as a religious institution trumps the rights of marriage as a legal one. Yet those who have been married or divorced understand their legal standing is defined by the registration or dissolution of that legal contract with the State.

As with equality struggles in other times during our history, the law may catch up to the needs of same-sex couples before some people do. Whether, as some in the younger generation suggest, it may take their unruffled acceptance of a comprehensive meaning of family to get the job done, two things are clear to Pizer: “There is a bedrock belief in the equality of all people; and there is a basic freedom of people to create their own families and live their own lives to the fullness they can without causing harm to other people.”

Sounds American, doesn’t it?

The full interview with Jennifer Pizer, Daniel Gluck, and Suzanne King is on the Town Square archive at www.hawaiipublicradio.org. Have a topic you wanted discussed on Town Square? Reach Beth-Ann at [email protected].