Civil Unions Coming in Hawaii?

Hawaii was the first state in the United States to enact legislation establishing a legal status for same-sex couples, a Reciprocal Beneficiaries Act that was created in response to the same-sex marriage litigation of the early 1990s. The RBA provided a limited menu of rights, and was not limited to same-sex couples. Now, the state seems poised to take the broader step of making a civil union status equivalent in many respects to marriage available to both same-sex couples who are denied the right to marry and different-sex couples who have that option but prefer to avoid it.

On February 12, 2009, the House passed HB 444, a measure to create civil unions for same-sex couples, and sent it to the Senate, where it failed of passage. However, consideration of the measure was continued as it was amended to make civil unions equally available to same-sex and different-sex couples, and as of May 11, 2009, a decision was reached to carry it over to the 2010 session for further consideration. On January 22, 2010, the State Senate passed the civil union bill as SD1, an amended version of the House bill, by a vote of 18-7, a margin high enough that it could survive a possible veto by Governor Linda Lingle, a Republican who had not announced a position on the bill prior to the vote. A vote in the House on the Senate bill was to be predicated on the leadership’s determination whether the measure could achieve a veto-proof majority in that chamber, the thought being that members should not be required to vote on a controversial measure that might be vetoed in an election year if their risky vote would be wasted. Passage of the narrower measure in the House last year was one vote short of a veto-proof majority, and one Democratic supporter was actually absent from the vote, so it was possible the necessary votes could be cobbled together, albeit uncertain that the same margin would be there for the broader Senate bill.

Making civil unions available for different-sex couples actually makes the measure much more of a challenge to traditional marriage, since it provides a sort of "marriage lite" (one that carries no federal rights or responsibilities, presumably, although the question whether the federal government might recognize a different-sex civil union for some purposes has not really been tested) that might prove popular in the way the French civil solidarity pact has been among young heterosexuals in that country seeking a less constraining alternative to traditional marriage.

One fly in the ointment, however, is that the bill, which had been drafted with the expectation of passage during 2009, was written with an effective date of January 1, 2010, and an attempt to amend it on the floor prior to passage to set a later date was unsuccessful. Given the momentum for the bill and fears that delay could lead to an erosion of support, proponents decided not to refer it back to committee for revision and instead put it up for a vote as, in effect, a retroactive bill. The state Attorney General’s Office then opined that retroactivity did not make the bill illegal but could cause administrative inconvenience for the government, which might give the governor a pretext for vetoing it without taking a position on the merits. Passage by a veto-proof majority obviates the veto problem, of course. And it is difficult to see how retroactivity can cause any serious problem, since until the measure is declared enacted, nobody can actually apply for a civil union license which is a prerequisite to the formation of such a union under the bill.

Since the legislature’s intent is to create an institution that enjoys all the legal incidents of marriage available under state law, it is actually quite brief, mainly concerned with defining terms and establishing how civil unions are to be performed, making sure to provide that people authorized to "solemnize" marriages are authorized to provide the same service for civil unions, but are not obliged to do so, and can refuse without penalty. Nothing is said about how civil unions are to be terminated, presumably because the general provisions are easily construed to make the state’s laws concerning termination of marriages fully available to civil union partners.

Section 9 of the bill provides that civil union partners "shall have all the same rights, benefits, protections, and responsibilities under law, whether derived from statutes, administrative rules, court decisions, the common law, or any other source of civil law, as are granted to those who contract, obtain a license, and are solemnized pursuant to chapter 572," the state’s marriage law. Section 10 provides that "all unions between two individuals not recognized under section 572-3 [the marriage recognition statute] shall be recognized as civil unions provided that the relationship meets the eligibility requirements of this chapter." And a section added to the original House bill provides: "A party to a civil union shall be included in any definition or use of the terms ‘spouse,’ ‘family’, ‘immediate family’, ‘dependent’, ‘next of kin’ and other terms that denote the spousal relationship, as those terms are used throughout the law."

The potential adoption of this measure actually seems to bring things full circle from 1996-97, when a similar proposal was presented to the Hawaii legislature by mainland legal authority Tom Coleman while it was pondering an appropriate legislative response to the same-sex marriage litigation, in which a trial judge had ruled in December in Baehr that the exclusion of same-sex couples from marriage created a state constitutional equality violation, and the legislature was contemplating package of a constitutional amendment to disempower the courts from ruling on this subject while legislating some measure of legal rights for same-sex couples. At the time the legislature decided to take the more cautious step of a limited relationship. Now, in light of the extraordinary developments on the mainland over the past few years, it seems ready to return to something like Coleman’s original proposal.