by Andrew Walden (Originally published January 24, 2010)

HB444--gay civil unions—is coming before the State House after receiving a veto-proof Senate majority.  Proponents claim that HB444 is a compromise which does not enshrine gay marriage.  But a nearly un-reported element of last year’s Senate debate shows that leading pro-HB444 senators believe that HB 444 will once again place gay marriage in the hands of the courts.

The Honolulu Advertiser March 24, 2009 reports:

Hanabusa told fellow senators in private caucus today that the bill could lead to a lawsuit by gay activists claiming an equal protection right to marriage. A lawsuit was filed in Connecticut after that state passed a civil-unions bill. The Connecticut Supreme Court ruled in October that same-sex partners should have the right to marry.

The American Civil Liberties Union of Hawaii, University of Hawaii-Manoa constitutional law professor Jon Van Dyke, and former state Supreme Court justice Steven Levinson have told lawmakers that a similar lawsuit would be difficult in Hawaii because the state Constitution gives the Legislature the power to reserve marriage to a man and a woman.

On one hand readers are presented with the private warning from Senate President Colleen Hanabusa (D-Koolina)—and the public denials of the pro-gay-marriage lobby and the Broken Trust Supreme Court Justice who invented gay marriage in 1993.  Jon Van Dyke is closely tied to Senator Dan Akaka (D-HI) and the Office of Hawaiian Affairs.  Van Dyke’s legal theory on ceded lands was crushed by the US Supreme Court 9-0 after being upheld by the Hawaii Supreme Court 5-0.  Why should anybody take his word for anything?  To give Broken Trust Levinson credibility an an objective authority on gay marriage is to disgrace oneself.  And of course the ACLU’s pro-gay marriage bias is obvious.

Honolulu attorney Jo-Ann M. Adams, chairwoman of the political strategy committee of the pro-gay-marriage Family Equality Coalition, repackaged the story in an April 29 Star-Bulletin commentary.  Adams makes no mention of the possibility Hanabusa raised in the closed Democratic caucus meeting that HB444 will lead to a gay marriage lawsuit.  Instead of claiming that such a lawsuit would likely fail, as her ally Levinson and the ACLU argue, Adams mentions only the possibility that the Hawaii Supreme Court would hold HB 444 unconstitutional.  She does not mention the possibility that such a ruling might be part of a Hawaii Supreme Court ruling creating gay marriage (again).  Of course as a gay marriage advocate, Adams should be eager to see such a ruling, therefore it is likely that she obfuscates the possibility in order to deny an argument to gay marriage opponents:

Senate President Colleen Hanabusa tried to convince senators that if HB444 passes, the Hawaii Supreme Court will hold it unconstitutional because HB444 uses the term "civil unions" rather than "marriage." She cited a Connecticut court case (Kerrigan). However, various professors from the University of Hawaii Law School advised the senators that this argument lacks legal merit, because the Connecticut Constitution on which the Kerrigan case is based is different from the Hawaii Constitution.

Biased lawyers like Van Dyke, Levinson and the ACLU claim that such a suit “would be difficult.”  On the other hand, pro-gay-marriage Senator Gary Hooser (D-Kauai), speaking on the Senate floor March 25, 2009 said:

“…it may very well be likely that this law would be challenged in court….”

To present legal arguments against the success of a hypothetical lawsuit is absurd.  Any claims about the applicability of the October, 2008 decision in Kerrigan v. State of Connecticut would have to be tried in court.  And there is no reason to assume that Kerrigan is the only basis upon which a suit could be filed.  To claim that a lawsuit using HB444 as justification to re-invent gay marriage “would be difficult” is meaningless. 

To suggest that the relative merit of conflicting legal arguments determines the result of political issues such as gay marriage in Hawaii’s highly politicized judiciary is an insult to the reader. 

To argue that the Hawaii Supreme Court would not make another political decision upholding its 1993 invention of gay marriage is a lot like saying—in 1992--that the Hawaii Supreme Court would never invent gay marriage in the first place.

There is also the possibility that HB444 would be used to begin litigation in federal courts—which have the authority to strike down elements of state constitutions.  A federal court in California—part of the 9th Circuit which oversees Hawaii--is now hearing Perry v. Schwarzenegger, a challenge to the constitutionality of California Proposition 8 which outlawed gay marriage in that state.

The  official description of HB444 is:

“Extends the same rights, benefits, protections, and responsibilities of spouses in a marriage to partners in a civil union.”

You have been warned.   

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Abercrombie and Hirono co-sponsor Gay Marriage Bill (The Broken Trust connection)

NYT: Stacking the Deck Against Proposition 8

Star-Bulletin comes out against voter registration drive

Cayetano: Hanabusa's Broken Trust connections lead to Koolina