Hawaiian Hitch

The courts may rule on same-sex marriage, but voters will likely have the last word

Last year, it looked like it would be just a matter of time, maybe months, before same-sex marriage would be legal in Hawaii. Hawaii's Supreme Court had ordered state officials to provide a "compelling state interest"--the highest legal standard--for denying marriage licenses to three gay couples. State attorneys produced several arguments they found compelling--gays are incapable of raising kids, gay marriage will lead to incest, straights will stop marrying if gays can too--but they failed. In a dramatic decision in late 1996, the First Circuit Court of Hawaii rejected all the state's arguments and deemed gay and straight unions equivalent under Hawaii law. You could almost hear the wedding bells. All that was needed was a final nod from a very supportive state Supreme Court and, bingo, same-sex couples could finally marry--at least in the bright sunshine of Hawaii.

Don't pack your bags yet.

Few on the mainland seem to have noticed, but a coalition of right-wing political groups--funded largely by the U.S. Catholic and Mormon churches--have succeeded in putting two anti-gay measures on Hawaii's ballot this fall. The first ballot measure would amend Hawaii's constitution to give the state legislature sole authority in defining marriage, meaning lawmakers could overrule any pro-gay interpretation of the current constitution by the state Supreme Court. The second measure, even nuttier, calls for a full-blown constitutional convention, which its backers plan on using to write a ban on gay marriage--and God knows what else--directly into the state constitution.

It's hard to predict how voters will react to these proposals. Traditionally progressive, Hawaiians overwhelmingly support equal treatment of gays and lesbians, but they dislike gay marriage as an abstract concept. No matter what voters may think now, this much is clear: The debate over gay marriage has moved out of the solemn halls of jurisprudence and onto the television screen. Sound bites and political maneuvers, not one court's commitment to civil rights, will decide the fate of gay marriage in Hawaii--and, by extension, the entire country.

It's hard to overstate the importance of Hawaii. The state's Supreme Court is--or, more accurately, was--poised to fundamentally change the gay-rights movement in America. No longer would the debate over gay marriage be abstract. Real gay couples with real marriage licenses would emerge in communities across the nation. Legal challenges to homophobic state laws, like Minnesota's "Defense of Marriage Act," would spring up by the hundreds. The decision would influence courts in Alaska and Vermont, which are currently considering the constitutionality of same-sex marriage in their states. Popular culture would pick up the issue in a big way, surely with a pro-gay face. Companies with operations in Hawaii would be forced--many would volunteer--to honor the same-sex marriages of their employees.

Most important, in just a few years, mainstream America would realize that gay marriage wasn't such a big deal. Gay marriage would no longer be an alien concept easily exploited by religious conservatives; it would be part of everyday reality for many thousands of Americans.

Nobody knows what the Hawaii Supreme Court will do before Election Day, but it appears to be sitting on its hands. Evan Wolfson, director of the Lambda Legal Defense and Education Fund's Marriage Project, says the court could issue a decision any day; the case, he says, is simply too straightforward to ignore much longer.

The smart money, though, says the court will wait out the election.

"If the anti-gay forces win, the court's ruling becomes a mute point," says a Honolulu journalist who asked not to be named. "Why would they want to act now and look foolish come November, if the voters soundly reject their authority." No one in Hawaii who watches the court closely, the reporter adds, thinks the justices have the stomach to issue a decision in such a politically charged atmosphere.

So paradise has become a political battleground. Gay organizers in Hawaii are taking a grassroots approach, presenting the ballot initiatives not as a gay-rights issue but as a constitutional issue. "Whose civil rights will be next?" they are asking. And it's working. An impressive group of progressives, from labor and women's groups to African Americans and native Hawaiians are actively opposing the ballot measures. The right wing has more money, though--and an easier message: "Gays aren't us; don't let them marry."

What can we do in Minnesota? Lots. First and foremost, we can send money. Our opponents are much better financed than the coalition of activists opposing the anti-gay ballot initiatives. (Send donations of any size to "Protect Our Constitution," P.O. Box 235704, Honolulu, Hawaii 96823.) We also can help by getting Minnesota congregations and civic organizations to endorse gay marriage--and coordinating such endorsements with groups nationally. (To learn how, visit the National Freedom to Marry Coalition website, www.freedomtomarry.org.) You might even tell Hawaii's Tourism Office what you think (Call 808-586-2550). Get angry, today. Nov. 3 will be too late.

Ken Darling can be reached via E-mail at kdarling@expsolutions.com.

 
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