Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: SUNDAY, May 1, 1994 TAG: 9405020126
SECTION: HORIZON PAGE: B1 EDITION: METRO
SOURCE: JANE GROSS THE NEW YORK TIMES
DATELINE: HONOLULU, HAWAII LENGTH: Long
Whether by sanctioning gay marriage, or by passing America's first statewide domestic partnership act, Hawaii would lead the way in this fundamental redefinition of family, which some see as a sweeping expansion of civil rights and others see as undermining traditional values.
To stand on the far shore of change is a fitting role for the Aloha State, which is known for a progressive public policy, a liberal state constitution, a tolerance for diversity, an acceptance of intermarriage and a flourishing acceptance of same-sex relationships.
``Because the culture here is so intermixed, we are used to living together and letting people be whatever they want to be,'' said Hoku Akiu, a security guard, who hopes to marry his gay partner, Dwight Ovitt, and has already celebrated their union before a church full of sympathetic relatives and friends.
The stage was set for this far-reaching social change when the state Supreme Court ruled last May that refusing to license the marriage of three gay couples, thus depriving them of financial and legal benefits, violated the due process clause of the Hawaii Constitution. The state Constitution is more elaborate than the federal counterpart and explicitly prohibits gender discrimination.
The Supreme Court sent the case back to the trial court to determine whether preserving the marriage ban was ``a compelling state interest,'' the highest level of judicial scrutiny and one that legal experts say is rarely met unless public safety is at stake. The trial court is to hear the case next spring.
Stunned by the court's landmark ruling and pressured by fundamentalist constituents, lawmakers here set about clarifying the state's marriage statute, either as a way of persuading the courts to defer to the legislature or as a way of giving extra ammunition to the attorney general, who must defend the ban.
In a legislative session that ends today, Hawaii's legislators considered, on the one hand, a constitutional amendment that would limit marriage to heterosexuals and, on the other, a broad domestic partnership act.
Instead, loathe to offend anyone in a year when they are up for re-election, the lawmakers have agreed on a bill reiterating that marriage is meant for ``one man and one woman.'' They have created a commission to propose remedies for the inequities faced by same-sex couples, who are denied tax breaks, Social Security benefits, rights of inheritance and cheaper hunting licenses, to name but a few of the privileges that fall to married couples.
Attorney General Robert Marks had been clutching at straws as he sought ways to prove compelling state interest. But the clarifying language from the legislature, which Marks had sought, might persuade the court that limiting marriage to heterosexual couples is a benign form of discrimination. And the creation of the commission, the attorney general said, might persuade the court that the state is truly committed to wider rights for gay couples.
The result of this judicial and legislative jockeying, virtually everyone agrees, will be either legalization of gay marriage by the court or a broad domestic partnership act after the commission completes its work, and perhaps both.
``That was something people thought was unattainable before May 5,'' said Daniel R. Foley, attorney for the three gay couples, citing the date of the Supreme Court's 3-to-2 decision. ``And now the only question is how much, how soon.''
Joseph Mellio, a 46-year-old chef, and Patrick Lagon, a 36-year-old graphic artist, hope to be the first to the altar if and when they win the case that they began more than three years ago, along with two lesbian couples here. Both men were raised in traditional Roman Catholic families, Mellio in Summit, N.J., and Logan in a Filipino enclave here and they speak proudly of their ``simple'' life together: a yard full of dogs, a tropical flower garden, quiet nights in front of the TV, weekends drives and family gatherings.
``Why does anybody want to get married?'' Mellio asked. ``You answer for me. Our reasons aren't different. Our agendas aren't different. You meet someone. You fall in love. You get married and live happily ever after. That's all we want.''
Legal experts say that the court here is likely to lift the ban on same-sex marriage, given the bold rationale of its preliminary ruling and the changes in its composition since then.
And that likelihood has raised concern among local officials about the impact on tourism, among fundamentalists about the radical redefinition of family and among gay rights advocates about whether marriage is an unalienable right or an inequitable institution. Constitutional scholars are unsure whether other states will recognize gay marriages in Hawaii.
The reciprocity issue, they say, is sure to land in the U.S. Supreme Court, which heard an analogous case in 1967 in Loving vs. Virginia and upheld the marriage of an inter-racial couple wed in the District of Columbia and jailed upon their return to a state that still had a miscegenation law.
In general, states recognize each other's legal acts, including marriage, under the full faith and credit provision of the U.S. Constitution. The only exception is when one state claims a violation of local public policy, which is expected to be the explanation for not recognizing gay marriage in the 23 states where sodomy remains a criminal act.
The tourism question has led to much hand-wringing. The $9 billion a year industry, No. 1 in the state, accounts for one-third of Hawaii's gross state product and four out of 10 of its civilian jobs.
Amid recession in California and Japan, where most of the visitors originate, tourism has declined in recent years, fueling concern that a flood of gay couples might scare off family-minded tourists and traditional honeymooners.
The few hotel executives and local elected leaders who worried aloud about tourist flight were quickly rebuked for political-incorrectness and now everybody is treading carefully. ``Our stand is we're not going to take a stand,'' said Tom Sakata, president of the Hawaii Visitors Bureau.
A few economists predict that an influx of gay tourists would more than make up for any lost business, but they concede that their calculations will be affected by the success of conservative groups that plan boycotts if gay marriage goes forward.
``This is part of the pan-sexual movement's attempt to deconstruct traditional morality in the culture and we take it very seriously,'' said Robert H. Knight, director of cultural studies at the Family Research Council in Washington, who expects to testify at trial here and if necessary help organize a boycott.
While legalizing same-sex marriage is seen by groups like the Family Research Council and the Roman Catholic Church as a radical move, gay rights advocates consider it the most conservative item on their agenda and disagree about whether it is a worthy goal.
On one side of the argument are the assimilationists, who consider marriage a way of gaining a panoply of benefits and a measure of respect. On the other side are the separatists, who say state-sanctioned monogamous unions are an affront to their movement and a means of taming an alternative lifestyle.
That debate was given full voice for the first time in 1989, the year that Denmark recognized gay partnerships, conferring on them all the economic rights of marriage but not the right to adopt children.
That was also the year San Francisco and West Hollywood (and later about 150 municipalities, New York among them) passed far more limited laws giving medical and other benefits to the gay partners of city employees.
The debate, framed by two gay rights lawyers, Thomas B. Stoddard and Paula L. Ettelbrick, did not envision the legalization of gay marriage anytime soon.
In fact, the last significant challenges to the ban on same-sex marriage had come 15 years before, when courts in Kentucky, Minnesota and Washington state upheld the status quo by asserting that marriage was by definition the collaboration of a man and a woman, which Hawaii last year labeled as ``circular and unpersuasive'' reasoning.
As Stoddard sees it, just months after his own ceremony with Walter Rieman, the issue remains ``equal access to an institution of great practical and emotional importance to most Americans.''
For Ettelbrick, by contrast, ``the true access question is whether marriage is the appropriate vehicle'' for determining economic rights and privileges. ``I'd rather spend our resources developing a broader view of family and not replicating heterosexist institutions,''
But on these fragrant islands, so far from the mainland in both distance, time and attitude, the crossfire between Stoddard and Ettelbrick seems an unnecessary argument, a way of staking out differences.
And that is not the way things are done here, where the local style is live-and-let-live, interracial marriage is ho-hum and homosexuality is barely remarked upon.
``The host culture has no problem with mahu's or moe-aikane, because almost every family has them,'' said Annelle C. Amarel, a state representative, using the Hawaiian words for men who dress as women and men who have sex with other men.
That was certainly Akiu's experience growing up gay in a family that has been here for generations, comingling its Hawaiian, Chinese, Filipino and Portuguese ancestry and practising a myriad Eastern and Western religions.
His ``wedding'' party at the Ke Anuenue O Ke Aloha Metropolitan Community Church included his mother, uncle, cousins, brothers and his partner's children from a former heterosexual marriage. But nobody stood around congratulating themselves for their diversity.
``It's a Western view that if you're different you have to talk about it,'' Akiu said. ``People here just quietly learn and adapt and adjust.''
by CNB