Defend
By ddepledge
The Abercrombie administration briefed state House and Senate leaders on Friday on the state’s legal options in a federal lawsuit challenging the civil-unions law as unconstitutional.
A lesbian couple sued the state in December alleging that they should have the ability to marry.
The state is expected to file an answer in court on Feb. 21.
In Connecticut, a civil unions law passed in 2005 was challenged as unconstitutional under state law because it did not allow marriage. The state’s Supreme Court ruled in 2008 that same-sex partners did have the right to marry under the Connecticut constitution.
The Connecticut case was raised as an issue by then-Senate President Colleen Hanabusa and others during the debate over civil unions in Hawaii.
One difference with Connecticut, however, is that the lesbian couple in Hawaii brought the legal challenge in federal court, citing due process and equal protection rights in the federal Constitution.
Hawaii’s constitution gives the Legislature the power to define marriage as between a man and a woman.
Political Radar
February 6th, 2012 at 8:07 pm
Comparing CT & HI is comparing apples and oranges. To my knowledge, unlike HI, CT has no constitutional provision authorizing the legislature to reserve marriage to opposite sex couples. This appears to be the reason the couple here is in federal court, whereas in CT the suit was filed in state court. The fed courts have never accorded gender or sexual orientation the same protection as race, for example, so I’m not thinkin’ they’re gonna get very far. But who knows; all discrimination requires some justification and the justification for discrimination in marriage rights has been pretty well blown up the past few years.
February 6th, 2012 at 9:06 pm
Sigh. Here we go again.
Signatures on civil union agreements barely dry yet and, oooooooh, look! Strife with the civil unions bill already. Those who maintain the true definition of marriage — between a man and a woman if some o’ d’is civil unions nonsense has some o’youse confused ’bout what marriage is and such — must be enjoying a nice smirk at this immediate in-fighting.
Though, a Grease’ll be conservative (as he is
) and give a bit more time ‘fore he says, “tojdja so.”
It’s halftime in the war of maintaining the true definition of marriage in America.
February 6th, 2012 at 9:37 pm
Obviously the Abercrombie Admin will present the weakest possible defense inorder to help create gay marriage.
February 6th, 2012 at 9:47 pm
Hooser, Hanabusa predict HB444 will bring gay marriage back before Courts
http://hawaiifreepress.com/main/ArticlesMain/tabid/56/articleType/ArticleView/articleId/1597/Hooser-Hanabusa-predict-HB444-will-bring-gay-marriage-back-before-Courts.aspx
February 7th, 2012 at 12:40 am
Andrew Walden’s 2010 article just demonstrates his complete lack understanding of the legal questions. Hanabusa was trying to stall the bill’s progress in the Senate when she spread the idea that Civil Union proponents were consciously following the Connecticut path: first pass a civil unions bill, then sue for unequal protection. Justice Levinson’s response was exactly right. CIvil unions may have been inconsistent with the Connecticut constitution. But because the Hawaii constitution explicitly empowered the Lege to define marriage, the Hawaii Supreme Court would be very unlikely to rule a CU to violate our state constitution, provided the CU law provided the same rights as marriage law.
Frankly, I think Hanabusa knew here argument was nonsensical, but at the time, her priority was to prevent the bill from passing, not educating her fellow senators on constitutional law.
As Ohia points out above, the attorney filing this suit DID NOT try to claim CUs violate the state constitution– which is consistent with what Justice Levinson had advised. Instead, he is filing in Federal Court, asking the judge to find Hawaii’s CU law to violate the Federal Constitution, which is a heckuva leap of faith. To be clear, I believe civil union laws ARE a violation of the equal protection clause of the US constitution. But the current US Supreme Court is largely hostile to civil rights claims and, as Ohia says, have NOT demonstrated sympathy for a claim of this sort.
And if the Federal Court were inclined to support an unequal protection decision, they did not need a civil union law. The plaintiffs could have simply filed a complaint based upon the pre-civil unions marriage law. If anything, passage of the civil unions law makes it LESS likely a court will rule in favor of a same sex couple than if CUs had never passed. A court can easily point to the civil unions law, say it provides the same rights demanded under marriage, while respecting the widespread prejudice that “marriage” should be reserved for opposite sex couples.
February 7th, 2012 at 12:21 pm
DOMA.
Like comparing passion fruit and bananas. You cannot run an Island on Mainland thinking.
Seems “missionaries” still come to Hawaii to preach what should or should not be done. “This is how its done on the Mainland:.
Someone should practice what they preach. Stand Tough for Understanding.
February 7th, 2012 at 12:27 pm
It was also a republican or neocon or rhino who vetoed the Civil Unions Bill. what say there to all who say about Abercrombies Administration when it was lingle who left Hawaii in this mess to begin with.
February 7th, 2012 at 1:44 pm
Here’s a perhaps novel theory: now that the 9th Circuit has ruled in the Prop 8 case that, once rights are granted, they may not be taken away without sufficient justification (a burden not even close to met in that case), perhaps the plaintiffs here can argue that Baehr v. Lewin granted (recognized?) the equal marriage rights of same sex couples and that the subsequent constitutional amendment taking away that right lacked the evidence necessary to take that discriminatory action. Hawaii is in the 9th Circuit and, unless and until SCOTUS overrules the 9th circuit decision (it was written very narrowly, probably to minimize SCOTUS’ temptation to take it on), that ruling binds Hawaii.
We’re a few years down the road but, what the hey?
February 7th, 2012 at 3:58 pm
Kolea: Hanabusa and Hooser are wrong even when their right. It all makes sense now.
February 7th, 2012 at 7:09 pm
My grand father always used to watch YouTube funny videos, hehehehehe, for the reason that he desires to be cheerful always.
February 8th, 2012 at 2:15 pm
@Guido,
Hanabusa was not right, but I doubt you care about the facts. Hanabusa was, at the time, deliberately spreading FUD (fear, uncertainty and doubt) about HB444. She had originally positioned herself as the champion of the bill, then ran into sharp opposition from Donna Kim which threatened her leadership. So she did NOT want HB444 to pass that year. So she started repeating this conspiracy theory that local CU advocates were deliberately setting the state up under a sneaky plot to first pass a CU bill modeled on the Connecticut law and then, following the CT example, suing to find the CU law in violation of the state constitution.
Again, I recognize you have no use for nuanced constitutional law, but Jon Van Dyke and Justice Levinson demolished any RATIONAL (as opposed to instrumental) value in that theory, by pointing out what might be unconstitutional under the CT constitution would not necessarily be unconstitutional under the Hawaii state constitution. They pointed particularly to the explicit language of the constitutional amendment the Gabbards (Mike, Carol and Tulsi) had helped pass, which authorized the legislature to reserve marriage to opposite sex couples.
I talked with Senator Hanabusa about this at the time and have little doubt she fully understood how baseless her “legal theory” was. But her need at the time was not to pass the bill. It was to stave off the threat to her leadership posed by Donna Kim and her allies in the senate. So passage of HB444 needed to stall out.
As I said, the recent filing of the legal challenge in Federal court does NOT validate Hanabusa’s earlier warning. A legal challenge under the Equal Protection Clause of the US Constitution was not made more likely by passage of HB444. Your claim that Hooser made a similar warning is hard to verify, as you have not provided the quote from Hooser in context. Hooser may very well have commented that people unhappy with civil unions, from either side, might very well file a challenge in court, a comment which is pretty unremarkable and does NOT confirm the Hanabusa/Walden conspiracy theory.
A final point, which–again–may be too nuanced for those empassioned with hostility to gay equality, is that different activists on ANY issue will pursue different tactics. Some folks are content with incremental reforms while others demand complete justice NOW! The gay and lesbian community is no more unified over strategy and tactics than the Hawaiian community, progressives or the conservative movement with its neo-cons, paleo-cons, libertarians, StormFront semi-fascists, etc.
So the fact a broad consensus emerged in support of passage of civil unions, a compromise position, was a pretty major accomplishment and, in my opinion, created conditions for the passage of civil unions in Hawaii. But some gay and lesbian couples–understandably, in my opinion, are not willing to wait for prejudices within the “straight community” to subside before pressing forward towards complete marriage equality. The existence of more militant activists within any of these movements, does not mean those who had advocated for a slower, more piecemeal approach were part of a disingenuous conspiracy. Civil Union advocates have been very upfront from the beginning that civil unions was only a step towards full marriage equality. There was no Hidden Gay Agenda locked away in a drawer somewhere like the equally false claims about “the Protocols of the Elders of Zion.”
BTW, and not totally off the subject, Freud believed paranoia was often rooted in unresolved and unaccepted homosexual impulses within the paranoiac. And he meant this more broadly than just that form of paranoia which expresses itself as “homophobia.” I believe that is very relevant as we try to understand the frequently irrational opposition civil unions evokes on the right.
February 8th, 2012 at 10:18 pm
Assumption and Approximation is a theory. Einstein came up with that and is relatively part of life here.
Always those who assume and approximate and pass off as facts only if proven to work. Even Einstein is being tested today. The World does not revolve around America.
I would not trust any woman who has a chip on their shoulders.