Gay marriage: With state Senate vote to legalize, Hawaii closes the circle

Hawaii, which has traveled a looping 23-year path on the issue, is on the cusp of becoming, with Illinois, the 15th and 16th states to legalize same-sex marriage after the 19-to-4 Senate vote.

With the Hawaii Senate’s approval on a 19-to-4 vote Tuesday of a bill legalizing gay marriage, the state has now come full circle.

Hawaii was where the national battle for marriage equality began, when two women applied for a marriage license in 1990. Their legal battle led to a state Supreme Court ruling in their favor three years later, but that in turn was followed by a local and national backlash that culminated in 1998 in Hawaii adopting a first-in-the-nation constitutional amendment targeting same-sex couples.

Gov. Neil Abercrombie, who called the state legislature into special session to address gay marriage in the wake of the Supreme Court’s ruling on the federal Defense of Marriage Act (DOMA), has indicated he will sign the bill. That would make Hawaii, along with Illinois, where a similar bill awaits the governor’s signature to become law, the 15th and 16th states to legalize same-sex marriage.

Pro-same sex marriage groups are calling the moment historic and symbolically powerful because of the Hawaii Supreme Court ruling in 1993, which found that refusing to allow gay and lesbian couples to marry is discriminatory and illegal. In the national backlash that followed, dozens of states moved to amend their constitutions to define marriage as between one man and one woman.

Congress, too, in 1996, withheld federal benefits from same-sex couples by enacting DOMA with broad bipartisan support. Key parts of the law were struck down by the US Supreme Court in June as violating equal protection principles.

In Hawaii, broad opposition to gay marriage led to the passage in 1998 of Constitutional Amendment 2, a ballot initiative empowering the state legislature to ban same sex marriage, which it did.

“Today's resonant conclusion to Hawaii’s story is not only historic, but bodes well for the rest of our country,” says Shannon Minter, Legal Director for the National Center for Lesbian Rights.

“Hawaii has evolved from its first dawning recognition that barring same-sex couples from marriage is unjustified and unfair, as the Hawaii Supreme Court held in 1993, to embracing those couples and their children as fully equal, respected, and valued members of society,” she says.

“The example that Hawaii has set today will inspire similar evolutions in other states.”

Governor Abercrombie called the current special session for the vote, claiming that marriage equality in Hawaii had become urgent in light of the Supreme Court’s decision on DOMA. He said he wanted gay couples to be able to marry and file joint tax returns for 2013.

Groups supporting the traditional definition of marriage expressed dismay, and lamented what they see as elected officials ignoring the public will.

“It’s really extraordinary to me that the 1998 campaign to amend the constitution was understood by everyone on both sides as codifying traditional marriage in the constitution,” says John Eastman, chairman of the board for the National Organization for Marriage.

“And now the legislators, attorney general and governor are all saying, ‘Oh, no no. It was only a fight about whether the legislature had unfettered discretion to change the rules on their own.’ And it’s increasingly clear that these kind of extraordinary maneuvers are necessary because the people simply don’t support this radical redefinition of marriage that is going on.”

Some legal analysts say Hawaii knew exactly what it was doing 15 years ago.

“Hawaiians did enact a constitutional amendment in 1998 to prevent their judges from imposing marriage equality on them at that time,” says Robert J. Hume, associate professor of Political Science at Fordham University. “But the way the amendment was written left open the possibility that the state legislature could legalize same-sex marriage later on, when public opinion was ready for it. This is exactly what is happening today.”

Others in favor of gay marriage say that the Hawaii vote is important not just because it is where the legal question first blew wide open, but because it is an iconic destination for love and romance.

“This vote is more than just another state gaining the freedom to marry,” says Tom Watson, board chair for Love Honor Cherish.  “Hawaii is all about marriage in the American psyche. At every hotel in Hawaii, there are weddings and honeymooners. At every luau, newlywed couples are called up onto stage.”

He says as a gay person who went to Hawaii frequently for vacation with his partner of 15 years, he always felt left out of the festivities, excluded and set apart.

“Today, Hawaii becomes a great place to get married and honeymoon for all Americans. It feels incredible to have that option,” says Watson.

Some without a vested interest on either side of the issue say the vote will lead to more of the same in other states.

“My take is that within a few years, same sex marriage will be allowed in all states,” says Adam Thompson, head of his own civil and criminal trial firm, who is also a nationally syndicated talk show host.

“More and more gay couples in other states who want to marry will simply take a look at this and move ahead, knowing that if they are denied, they can sue and will probably win.”