Thursday, May 15, 2008
Should Hawaii recognize same-sex marriage in view of California victory?
The word is spreading like wildfire: as a result of a state supreme court decision today, same sex marriage is now legal in California, the most populous state in the country, as well as in Massachusetts. Five other states permit civil unions that provide benefits equivalent to marriage.
What isn't well known is that the amendment to Hawaii's constitution approved by voters in 1998 does not ban gay marriage here. It allowed the state legislature to enact a ban, and the legislature did so.
In other words, the ban is by statute, which can be changed without a change to the Constitution.
Top California court supports gay marriage
By Jim Christie
SAN FRANCISCO (Reuters) - The California Supreme Court overturned a ban on same-sex marriages on Thursday in a major victory for gay rights advocates that will allow gay and lesbian couples to marry in the most populous U.S. state.
The court found that California laws limiting marriage to heterosexual couples are at odds with rights guaranteed by the state's constitution. Opponents of gay marriage vowed to contest the ruling with a statewide ballot measure.
The California court's 4-3 decision overturns state laws prohibiting same-sex nuptials.
The state's constitution "guarantees same-sex couples the same substantive constitutional rights as opposite-sex couples to choose one's life partner and enter with that person into a committed, officially recognized, and protected family relationship," the court said.
Californians in 2000 voted to reaffirm a 1977 state law defining marriage as union of a man and woman. Four years later, San Francisco Mayor Gavin Newsom challenged that law by issuing marriage licenses to gay couples, which led to the court battle decided on Thursday by the state Supreme Court.
Newsom said his controversial policy had been vindicated and that he plans to resume issuing marriage licenses for same-sex couples in coming weeks. [Reuters, May 15, 2008]
If one must resort to an economic argument to lift the ban in Hawaii, one of the most compelling that I have heard recently is that if Hawaii still has a glimmer of hope to become a high-tech center, it will have to provide a social environment that high-tech people wish to live in.
California is a natural magnet for high-tech and creative people in part because of its well-known tolerance. And now it is even more attractive, and not just to those who have been demanding an equal chance to marry. It is once again demonstrating tolerance. Hawaii is demonstrating... what? You can make your own list of pros and cons that creative executives and knowledge workers might weigh before deciding to establish a business here.
I'm not suggesting that "tolerance" is a magic key to economic success here. I think it is a prerequisite. In terms of interracial marriage, for example, Hawaii is a well-known leader. I believe that we really do understand tolerance.
So given today's decision in California, shouldn't we begin to re-think our own discrimination and whether it is time to undo it? No ConCon is needed, just a great big campaign to convince our legislators to do the right thing.
Or a ConCon, I suppose, that would work also.
When the legislature approved the same-sex marriage amendment, it was a compromise between the gay coalition and the catholic/mormon/evangelical coalition that at some point in the future, the legislature could "change" when the issue wasn't so "cutting-edge." This was according to David Morihara, former House member from Upcountry Maui, twelve years ago.
That being said, marriage itself is one of the 800 pound gorillas in the room when it comes to social justice. The civil institution of marriage really just reinforces class structure. In addition, by broadening the reach of person to whom benefits may be conferred, it has had the negative impact of a bigger "in crowd" and more insular "out crowd" when it comes to sexual identity, liberation and the like. (see Michael Warner's The Trouble with Normal on how as NYC moved more towards domestic parternships etc., there was less formal opposition to Giuliani's closing down of adult bookstores, working class gay bars, etc., which from a class perspective, were the working classes dominant social institutions.)
The leg should look at abolishing civilly recognized marriage and conferring economic benefits tied to child-rearing to parents who actually child-rear (which was the main argument of the state for opposing same-sex marriage in the courts in the 1990s). The leg could also look at a registration system of all persons regarding advanced health care directives and the default attorneys in fact during incapacity. Conservative arguments in support of marriage have always referred to something else that marriage helps benefit. Why don't we just cut out the middle man and confer the legal benefit on those something elses?
Maybe the occasion of the California decision can help start these discussions somewhere here in Hawaii. I know they're always going on, what I mean, I guess, is in some prominent venue.
If not now, when?
What you've written here deserves a larger audience.
There is no ban in any state on being married to a same sex partner, just a bans on the state issuing marriage certificates to same sex-couples. And the U.S. Constitution’s “full faith and credit” provisions compel every state to recognize the California marriages. If you can go to Las Vegas to get married and have that recognized here, you can got to California and get married and have that recognized here.... or that’s my take.
Yes, that is the legal argument to get same-sex marriages recognized by all the states (although the full faith and credit clause doesn't apply to marriages directly, it comes up as an issue when you go to divorce or adopt). But, that doesn't address the underlying issues regarding "marriage."
I'm not sure if all states will recognize California/Maine marriages. I thought some made an exception, but I haven't had a chance to google for the information.
There was some discussion in an article I did look for and cannot find about hotels refusing to check in couples under "Mr. and Mr." or "Mrs. and Mrs.", though that's a separate thing.
Still I don't think any state actually has a law against being married, just against their state actually marrying people.