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Gay couples sue Hawaii for rights

Timothy Kincaid

July 31st, 2010

In 1993, the Supreme Court of Hawaii found that it was discriminatory to deny marriage licenses to same-sex couples. This set off a wave of “defense of marriage acts” which limited marriage to opposite sex couples in 60% of the states.

However, Hawaii was the first to amend its constitution in 1998, and their approach was different from those which would follow. It did not ban same-sex marriage or any benefits. Rather, it simply said

The legislature shall have the power to reserve marriage to opposite-sex couples.

And the state legislature promptly did so. But as a token effort to pretend that it was not discriminating, it created something called reciprocal beneficial registration.

This unique system would allow any two adults, be they a couple, a parent and child, bowling buddies, or anyone else, to mail a form to the Department of Health and thereby become a beneficiary of the other. Benefits are very limited and include rights, workers compensation, the right to sue for wrongful death, health insurance and pension benefits for state employees, hospital visitation, and healthcare decisionmaking.

These are not in any way equivalent to marriage. And, indeed, they seem to have been crafted specifically to deny state recognition to couples. While there are a few pass-through benefits, there are no mutual obligations of support or protection.

So this week six same-sex couples sued the state for equivalent rights. (AP)

Six gay couples in Hawaii are filing a lawsuit Thursday asking for the same rights as married couples, three weeks after Gov. Linda Lingle vetoed a same-sex civil unions measure.

The lawsuit doesn’t seek the titles of “marriage” or “civil unions” for gay partners. Instead, it requests that the court system extend them the benefits and responsibilities of marriage based on the Hawaii Constitution’s prohibition against sex discrimination.

Should Neil Abercrombie win the Democratic Primary for Hawaii Governor, he is expected to win the general election. Then the legislature will probably pass civil unions in 2011 and Abercrombie will sign such a bill. At that time the lawsuit would be dropped.

However, if Abercrombie does not win the primary, the case will probably continue to the state supreme court. His opponent Mufi Hannemann has said that he would veto such a bill, as would the Repulican nominees.

Two of the five Supreme Court Justices were part of the court when Baehr v. Lewin, the case that determined Hawaii to be in violation of its constition, was decided; both sided with equality. One justice was appointed by a Democrat, and two were appointed by Governor Lingle – who just vetoed civil unions – though only one of them is a Republican.

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