Honolulu Star Advertiser: Hawaii ready for marriage equalityJune 28, 2013
POSTED by the Honolulu Star Advertiser
Jun 27, 2013
The U.S. Supreme Court has opened a door — entitling all legal marriages, regardless of gender, to the same federal benefits — but has left it up to each state to walk through it.
This state should lose no time in doing so. Two years after enacting civil unions as a legal status, Hawaii has arrived at the point where it should advance the cause of civil liberties further by legalizing marriage for same-sex couples.
The majority opinions in Wednesday’s two key rulings signaled a turning point in what has been a divisive issue nationally. Even in California’s Proposition 8 case, which the justices decided on a procedural basis rather than on the merits, the effect is monumental. The 5-4 decision was that the sponsors of the proposition to ban same-sex marriage did not have legal standing to bring the appeal. This meant the lower federal court’s ruling against Prop 8 as unconstitutional would stand.
But results count, and the result of this ruling is that California’s same-sex marriages are expected to resume in about a month. That is no small matter, because California is the most populous state in the union.
There are still many people across the country who will remain staunch opponents to same-sex marriage for religious or other reasons, but there are others who simply need time to see that expanding access to marriage benefits won’t be disruptive. The addition of California’s same-sex marriages to the demonstration ought to further tip the public-opinion scales, which already have undergone a remarkable reversal in recent years.
The marquee legal story, however, was the justices’ declaration that the federal Defense of Marriage Act, enacted in 1996, is unconstitutional. This acknowledges that marriages between same-sex partners are entitled to the same federal benefits and protections as those enjoyed by heterosexual couples.
Associate Justice Anthony Kennedy, a conservative who often has served as a swing vote, wrote in the strongly pointed majority opinion that discrimination was not an incidental effect of DOMA: “It was its essence.”
However, the DOMA ruling should be seen not as liberal activism but as part of the court’s overarching drive to constrain the power of the federal government. That was also exhibited the day before, when the court struck down a key provision of the 1965 Voting Rights Act. On marriage licensing and other matters that are reserved to the states, the court seems unwilling to allow much federal interference.
So it will be up to states like Hawaii to move the needle. In one sense this is already happening in the case of Jackson v. Abercrombie, now on hold at the Ninth Circuit Court of Appeals. This Hawaii legal challenge, along with a similar one from Nevada, argues that the lack of legal same-sex marriage violates constitutional equal-protection and due-process guarantees. Some say these cases could land before the U.S. Supreme Court, in pursuit of a broader national ruling on the right to marriage.
But Hawaii shouldn’t wait for that to play out, or depend on a favorable ruling there. Instead, the state Legislature needs to revisit a measure like Senate Bill 1389, which would eliminate the statutory definition of marriage as exclusively between one man and one woman, and enable marriages for all loving couples, as well as continuing the existing civil-unions and reciprocal-beneficiary legal statuses that already exist.
At some point, the clause in Hawaii’s Constitution that allowed lawmakers to restrict marriage to heterosexual couples will need to be excised, but the first priority remains with changing the statute. Once more states allow same-sex marriages as the law of the land, it will be difficult to ignore the obvious: Americans are increasingly accepting that marriage is a fundamental right that provides security to all couples and families, ultimately strengthening civil society.