Star Advertiser: “On the long path to marriage”

July 8, 2013

POSTED in the Honolulu Star Advertiser
By Vicki Viotti
July 7, 2013

Partly because Hawaii has a legal challenge of its same-sex marriage ban sitting before federal judges in San Francisco — one that could eventually lead to further rulings by the nation’s high court — the islands represent a battleground to either side of this contentious issue.

These are well-established battle lines, first laid down in 1990. That’s when the case that became known as Baehr v. Lewin first started moving through the state Judiciary. It culminated in a 1993 ruling by the Hawaii Supreme Court that the state had failed to show any compelling interest to deny marriage licenses to same-sex couples. And that fueled a drive in Congress for what became the Defense of Marriage Act, just struck down by the U.S. Supreme Court.

Garret Hashimoto is state chairman of the Hawaii Christian Coalition, an organization that was most deeply engaged in the fight when a constitutional amendment empowering the Legislature to restrict marriage to opposite-sex couples was passed in 1998.
Other socially conservative interest groups became more prominent in the state’s debate over civil unions, enacted in 2011. But now, he said, the coalition is ramping up its phone trees to put pressure on lawmakers for the preservation of the same-sex marriage ban now on the books.

Hashimoto, a divorced father of two, maintains that the voice of the people of California was wrongly silenced when the high court ruled that the Proposition 8 defenders lacked legal standing, effectively defeating that same-sex marriage ban. Vox populi is what needs to be heard in Hawaii, as well, he said: Any proposal to legalize same-sex marriage here should be put to a vote through another constitutional amendment.

“We have a Democratic Legislature, and governor,” he said. “The only way we can defeat this is to express the will of the people. … especially when we have a governor who favors same-sex marriage.”

On the other side are the same-sex couples and their supporters who have a civil union in Hawaii and are learning its limitations — some of them intangible. For instance: Krys and Brandon Romanczak were the first couple to have a private individual civil union ceremony on New Year’s Day 2012 (there had been a previous group ceremony held earlier).

And while that took care of most state benefits in Hawaii, they happened to be attending Gay Pride celebrations in San Francisco and were swept up in marriage fever after the Supreme Court rulings. While on vacation, they pursued a marriage license in the city.

Brandon, a 30-year-old Army veteran now working as a medical technician, felt a civil union was “good enough for me,” but was now willing to go to the next step.

“We’re here, and DOMA got repealed and (Krys) just wants to do it,” he said.

Ultimately, though, their plans were delayed last week — the overloaded schedule for licenses and the public transportation strike in the city complicated logistics, Krys said. It forced a postponement but not a change of heart.

In light of Department of Defense statements of intent to extend military benefits to all legally married couples, Krys, 33, who is starting a new online programming business, said making veteran claims as easy as possible seems to make sense. Besides, he said, he grew up in a setting that simply valued marriage.

“We just get along super well and it’s nice to be recognized as a couple,” he said. “I grew up Mormon, so family is the biggest thing for that culture. I may not be religious now, but I still have the same sense of family.”

The advantages of having federally recognized marriage go much further. That’s been the experience of Kath Sands, 58, and Linda Krieger, 59, who were legally married in Massachusetts in 2007. The wedding was at the Radcliffe Institute for Advanced Study at Harvard University, where they had met in connection with an academic fellowship.

Sands was a lifelong Bostonian but pulled up stakes and moved to Hawaii where Krieger had grown up, was now a William S. Richardson School of Law professor and had an aging mother and a special-needs brother to care for.

But when Sands got a cancer diagnosis, new and critical considerations came into play. Although the prognosis now looks good, the couple got serious about those until-death-do-we-part preparations. Under Hawaii law, however, the marriage is recognized only as a civil union.

Without dissecting the file folder of papers laying it all out, this meant jumping through distressing legal hoops — at one point having to terminate their reciprocal beneficiaries bond — to ensure that their various estate and inheritance lines were clear.
And still, there is a range of federal benefits that can’t be shared. All of that leaves them with some ambiguous feelings about the state of same-sex marriage in America, setting aside the celebratory mood of the past several weeks.

“If we still lived in Massachusetts, we would be married, and we would have these benefits, we would have this dignity,” Krieger said. “But no. We moved here because I have family to take care of … which, when you get right down to it, in my view, is what Hawaii is all about.

“We’re about taking care of our family. That’s like the No. 1 thing that we do, right? We take care of family,” she added. There was a pregnant pause. “It kills me that I can’t take care of Kath.”

Sands is an American Studies professor at the University of Hawaii, specializing in issues of religion (she has a theology degree) and public policy. On the intellectual level, she’s given a lot of thought to the questions of morality and society that the whole same-sex marriage debate has raised, and on the personal level has registered the deep feelings of exclusion that many gay couples have felt.

“There’s a lot of criticism of marriage, and there’s a lot of good reasons to criticize marriage,” Sands said. “On the other hand, my own experience is marriage can be very good for you.

“In our world, such as it is, for most people one of the two or three most important promises they will make is to the person they marry and to their children,” she added. “It’s sort of the crossbeam of the moral architecture of the ordinary life. And when people don’t have that, there is a sense of being exiled from the moral universe.”

That exile left Krieger in a lot of pain early in life, and she said she has held on and succeeded only by the skin of her teeth. The future still seems a little murky.

“In states that do not recognize gay marriage, including Hawaii, none of us in those states are going to reap the benefits of the Supreme Court decisions,” she said flatly.

Where the battle goes from here is still uncertain. Lawmakers are mulling over the prospect of a special session aimed at reversing the same-sex marriage ban on the statutory books, which can be done without a constitutional amendment.

In the gay-rights community, there’s a lot of support for that, of course. Alan Spector, a longtime advocate, said the action would moot the lawsuit defending the ban, a state case led by the Department of Health, and avoid wasting more time and money.
“DOH is fighting a losing cause,” he said. “Now it’s time for them (state officials) to finish what they started with civil unions.”

Donald Bentz is a spokesman for Hawaii United for Marriage, a coalition of advocacy groups leading the charge for marriage equality in this state. He said his group is taking a behind-the-scenes approach, talking with various stakeholders who could help reverse the ban — an outcome that’s not at all assured, he added.

“The stars have to be in alignment for this to work,” Bentz added. “It’s definitely something we’re hopeful for, but we’re not making any demands at this point.”

The opposition, he said, is undoubtedly doing the same, and just as quietly.

“It’s like watching a duck on water,” Bentz said. “He’s just gliding along, but you don’t see how fast the little feet are moving.”
Jim Hochberg is the attorney representing the Hawaii Family Forum in the case for the defense of Hawaii’s marriage statute. He doesn’t think much of importance has changed nationally where the legal case for traditional marriage is concerned.

“The only thing that changed is that a majority of the Supreme Court became lawless in that DOMA decision,” he said.
And in Hawaii, Hochberg said, there is still no constitutional basis for same-sex marriage. An effort by the Legislature to legalize it is sure to draw a challenge, he added.

“I would be looking for a licensed solemnizer to challenge it, you betcha,” he said.

The virulence of the debate is what makes Krieger, another attorney, anything but certain of getting what she wants.

“I never thought we would get this far in my lifetime,” she said. “And I think it’s important to remember that in most of the country it’s not this far. There are 38 states that have either constitutional or statutory anti-gay-marriage laws … so 38 states are a lot.”

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