Judge approves
same-sex marriage

The state has already said
it would appeal if it lost

By Linda Hosek
Star-Bulletin



In another landmark decision in the same-sex marriage case, a Circuit Court judge this morning gave the green light for same-sex couples to marry.

Judge Kevin Chang found that the state did not offer a reason compelling enough to continue the ban on same-sex marriages.

"We got everything we asked for," said Dan Foley, attorney for the three same-sex couples who sued the state in 1991 for the right to marry. "We got 100 percent."

Foley said the couples should be allowed to get their licenses today from the state Health Department. But he also said the department may wait for an opinion by the state Attorney General.

Deputy Attorney General Rick Eichor was not immediately available for comment today. But yesterday, he said he would appeal the ruling if the state lost and ask the court to postpone marriages until the state Supreme Court rules on the appeal next year.

Hundreds of mainland same-sex couples are ready to book flights to Hawaii to wed, an advocate said yesterday.

But opponents will likely renew pressure on the state Legislature to approve a constitutional amendment to stop same-sex marriage, said the Rev. Marc Alexander, executive director of Hawaii Catholic Conference yesterday.

"We feel like we've waited already," said Sue Reardon, director of the Hawaii Equal Rights Marriage Project. "The couples applied for licenses six years ago."

She also said a decision to postpone same-sex marriage "would further delay our constitutional right of life, liberty and pursuit of happiness."

Reardon said hundreds of mainland same-sex couples have called the state in past year, saying they would fly to Hawaii if the courts allow such marriages.

The state Supreme Court issued the first landmark decision favoring the couples in 1993. The justices presumed that same-sex couples have a right to marry unless the state could offer a reason compelling enough to justify sex discrimination in the state law. They based their ruling on the equal protection clause of the state Constitution.

The nonjury trial to give the state a chance to offer a compelling reason ran from Sept. 10-20 before Chang.

State officials argued that biological parents give children the best chance to reach their optimal development and that the state has an interest to maintain such a marital structure.

But the same-sex couples argued that children thrive based on the quality of care, not the number, gender or biological connection of the parents to the children.

Eichor yesterday said he continued to believe the law did not improperly discriminate based on sex, adding that either sex can marry.

"They're harmed on the basis of sex orientation, not sex discrimination," he said. "They can get married, just not to each other."

Foley said the high court already decided that the law does discriminate on the basis of sex. He said the trial court can rule only on whether a compelling reason exists to prevent same-sex unions.

To meet the definition of compelling, the government must identify an issue as important, pursue it in a consistent way and remedy it in the least drastic way.

Alexander said the courts viewed as compelling a ruling to require women to wear bras in prison, citing public safety.

"If they can find for women wearing brassieres, I would hope they would find that there's a compelling reason to maintain marriage between one man and one woman," he said.

Evan Wolfson, a New York attorney who was co-counsel for the same-sex couples during the trial, said the fight for marriage throughout the country would continue, regardless of a positive decision by Chang or the state Supreme Court.



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