ANALYSIS: DOMA Ruling: Precursor to Changes in Hawaii?

By Dave Smith

File photo courtesy of Kahuku Photography.

Another day, another Supreme Court ruling, but this one is setting off widespread celebrations.

A day after justices prompted congressional Democrats to call for voting rights reform, the Supreme Court today struck down a provision of the federal Defense of Marriage Act that denied federal tax, pension and health benefits to married gay couples.

The ruling came on a case brought by 84-year-old Edith Windsor, who was charged $363,053 in taxes on the estate left to her by her partner of 40 years because their marriage was not legally recognized.

Today’s ruling not only opens up those benefits to more than 100,000 gay and lesbian legally married couples, but also is expected to spark calls for legalizing same-sex marriages in the roughly three-quarters of the states where such bans exist.

The first is likely to be California which has been on a roller-coaster ride with its Proposition 8. Narrowly approved by voters in 2008, the referendum banning same-sex marriages was later ruled unconstitutional by a federal appeals court in the case of Hollingsworth v. Perry.

Today, in a second action, the Supreme Court allowed that court’s ruling to stand, which paves the way for those ceremonies to resume in the Golden State.

(Because it was not challenged, another section of DOMA which says that no state is required to recognize gay marriages performed in other states remains intact. However, US Rep. Colleen Hanabusa today said that she was joining others in re-introducing the Respect for Marriage Act, which would repeal that DOMA provision.)

What remains to be seen is the impact today’s rulings will have in Hawaii, which has had a stormy path on the subject of same-sex unions — and where lawmakers anticipated possible changes resulting from today’s rulings.

Discussion of the matter started in earnest in 1990 with the filing of a lawsuit arguing that the state’s ban on same-sex marriages violated the Hawaii constitution. The case made its way to the Hawaii Supreme Court which in 1993 ordered the state to show a compelling reason for the ban.

The debate that followed went national and helped usher in the 1996 enactment by Congress of DOMA as well as dozens of laws and constitutional amendments prohibiting gay marriage in other states.

Meanwhile, Hawaii’s legislature passed a law restricting marriage to opposite-sex couples. In 1998, more than 60% of the state’s voters approved a constitutional amendment endorsing that statute, which rendered the 1990 case closed.

However, in recent years the view of gay marriages has been changing in the Aloha State.

A law passed two years ago established civil unions for couples of both same and opposite genders and gave them the same rights as married couples.

Last year, a lesbian couple decided to challenge Hawaii’s ban on gay marriages in federal court.

Although the state Department of Health sought to uphold the Hawaii law, Gov. Neil Abercrombie sided with the plaintiffs, Natasha Jackson and Janin Kleid.

And during its recent session, the Legislature passed a concurrent resolution requesting that the dean of the University of Hawaii law school convene a task force to study the “social, economic, and religious impacts of enacting marriage equality in Hawaii.”

A report on the measure from the Senate Committee on Judiciary and Labor noted the “rapid changes in the legal and social landscape across the country regarding marriage equality.”

The report said that the work of the task force should enable the Legislature to be prepared to address the “legal realities” for same-sex couples, “especially after the US Supreme Court issues its rulings in Windsor and Perry” — the two cases decided today.

Abercrombie today applauded the court’s ruling and made it clear that he would support legislative action revoking Hawaii’s gay marriage ban.

“In Hawaii, we believe in fairness, justice and human equality, and that everyone is entitled to the same rights and responsibilities as everyone else, including the ability to get married,” he said.

Abercrombie said he believes the DOMA ruling supports his position on the Jackson case – now before the Ninth Circuit Court of Appeals – that the Constitution’s equal protection clause requires same-sex marriage in all states, including Hawaii.

“I will continue to work to assure justice and equality for all,” he said.