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A federal appeals court ruled today that California’s ban on same-sex marriage is illegal. It’s not yet known whether the California decision will be seen as too narrow to be considered precedent for a Hawaii case arguing civil unions don’t go far enough.
A three-judge panel of the 9th U.S. Circuit Court ruled 2 to 1 that California’s gay-marriage ban known as Proposition 8 violates civil rights. Two of the plaintiffs in a Hawaii suit filed against the state in the 9th Circuit see it as a milestone.
“I feel like I’m in the middle of a civil rights movement and I get to see these momentous things happen as steps toward the right direction,” said plaintiff Natasha Jackson-Kleid, an Ewa photographer.
She and Janin Jackson-Kleid were joined in a civil union last month after having been denied a marriage license in December. They filed a constitutional rights challenge against Gov. Neil Abercrombie and Health Department Director Loretta Fuddy in federal court. The state attorney general’s response to the suit is due Feb. 21. Last week Friday the administration met with lawmakers to outline options. Tuesday, the California decision came down.
“I guess now it makes it a little more difficult for the attorney general to have a vigorous defense,” said Sen. Clayton Hee, chairman of the Senate Judiciary Committee, “and we’ll see where this takes us.”
“I spoke to the attorney general today,” said Rep. Gilbert Keith-Agaran, chairman of the House Judiciary Committee. “I mentioned that maybe the caucus wants to meet with him in light of the decision by the 9th Circuit. I asked him what do you intend to do at this point? And he said, well, we still intend to mount a vigorous defense on behalf of the health director.”
“I have the greatest respect for Gov. Abercrombie and Attorney General David Louie,” said attorney John D’Amato, representing the plaintiffs in the Hawaii case. “They have extremely difficult jobs to do, and I understand that they’ve got to consider all of the segments of the population in the decision that they arrive at. I would say, though, that when all is said and done, they need to think in terms of what is pono, what is just for a segment of this population that has been deprived of a right that should have been theirs 15 years ago.”
The attorney general’s office said it won’t have any comments on the Jackson v. Abercrombie case until they file their answer. The range of options remains broad. In a Connecticut constitutional challenge several years ago, the attorney general sent a deputy to mount the defense; its state supreme court ruled its civil union law wasn’t strong enough, mandating same sex marriage rights. Last year on the day of the civil unions signing, the Obama Administration announced it would no longer defend the federal law that defines marriage as between one man and one woman. In the California case just decided, prior Gov. Arnold Schwarzenegger and former attorney general and now Gov. Jerry Brown both refused to defend the state’s gay marriage ban.
“At first blush it looks like now there’s a precedent that’s binding on the U.S. District court here in Hawaii, but this was decided on such narrow grounds that I think they’re still going to have to take a look at the facts of our case,” Keith-Agaran said. “For one thing it doesn’t decide that under the Constitution that marriage is a fundamental right. Secondly the Proposition 8 stated that marriage was limited to 1 man 1 woman. Our amendment just said it was up to the legislature, and so it was the legislature who decided that we would not have same-sex marriage here. At this point, I think that there are still reasons to defend our law as it is.”
“A law enacted by the legislature nevertheless needs some sort of rational basis under federal analysis,” D’Amato said. “We are suing here in Hawaii, as the plaintiffs in California did, under the 14th Amendment which says that state laws including a constitutional amendment like Proposition 8 in California or the marriage amendment here can’t deprive individuals of the equal protection of laws or of due process. What is the rational basis left for the states denying them the right to call themselves married?
“Clearly if you look what’s going on in the nation, the 14th Amendment equal protection is being asserted,” Hee said, “and every court that at least I’m aware of has asserted that gay marriage is part of the 14th Amendment that needs to be defended. It appears to me we’re headed that way. I guess the courts will rule, they’ll make a recommendation, the legislature will no doubt be aware of the recommendation. Whether we run out of time or not will determine what we’ll do.”
The couple suing for equal protection say they’d explain it this way to Hawaii’s governor:
“I would tell him thank you for getting civil union approved, that’s a great step in the right direction,” Janin said. “However, it’s not enough. It doesn’t cover everything that he’s experiencing with his wife, we just want the same rights as he does.”
“When we explained to other people, they didn’t necessarily understand what a civil union was,” Natasha said, “and they’re like, well why can’t you say married? And I say exactly, and that’s what we’re fighting for. When someone comes up to me and says is this your wife, I want them to know yes, this is my wife. This is not practice. This is not us playing house, this is us together for life.”
“Hawaii is a very different place, not like any other state of course, and we like that, we pride ourselves on standing out and being a very fair place and being about family,” Natasha said. “So I don’t think that we should have any big brother state show us how to make our laws, and I feel like that’s what’s going to happen, like someone’s waiting for a majority of other states to say ‘Yes.’ Why do we have to wait for that? We are already there. This is a very liberal and open place to live, so why wouldn’t we just start here?”
In California following the federal ruling, same-sex marriage will remain on hold until supporters of the ban consider appealing whether to a full panel of circuit court judges or directly to the U.S. Supreme Court.
The attorney representing the plaintiffs in the Hawaii case explained where the California case is similar and different this way: “They focused on whether the state could deprive a minority of a right they already had [after the California Supreme Court decision in 2008 gay and lesbian couples did have the right to marry], without getting into the question of how fundamental that right was or anything else. The issue was simply could they be deprived of that right [by Proposition 8 which imposed a ban in response to the 2008 ruling]. And without a rational basis, the 9th Circuit said no they couldn’t,” D’Amato said. “Here in Hawaii, it is a little different because we’re arguing for a right that gay and lesbian couples never had, though they came close to it in Baehr, and they would have had it in Baehr had matters been allowed to take their course.”
In the Baehr case, the Hawaii Supreme Court ruled in 1996 Supreme Court ruled in 1996 that same-sex couples being denied marriage was discrimination. Gay marriage was not enacted, however, prior to a state constitutional amendment against it in 1998.
“Gay and lesbian couples here have never had that right, so we’re arguing that the state cannot deny them the right to marry when they’ve given them everything else that goes with marriage,” D’Amato said, “and that to do so, to deny them the right to marriage in this context, is an affront to their dignity and a disparagement of their relationships.”