Hawaii may legalize marriages of gays

April 25, 1994|By New York Times News Service

HONOLULU, Hawaii -- This island paradise, where multiculturalism is a way of life and not just a slogan, could become the first state to legalize marriage between people of the same sex -- or at least to offer marital benefits for homosexuals who register as domestic partners.

Whether by sanctioning gay marriage or by passing the nation'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 in May that refusing to license the marriage of three gay couples, thereby 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 May 1, 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, hesitant 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.

The attorney general, Robert A. Marks, had been clutching at straws as he sought ways to prove a compelling state interest. But the clarifying language from the legislature, which Mr. 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, the lawyer for the three gay couples, citing the date of the Supreme Court's 3-2 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 -- Mr. Mellio in Summit, N.J., and Mr. Lagon 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, weekend drives and family gatherings.

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