Out in the Mountains

The Hawaiian Marriage Case: What Does it Mean for Us?

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“compelling state interests” that can
only be achieved by denying marriage to
two women or two men.

The Attorney General of Hawaii is now
trying to decide whether or not to try to
make such a demonstration. He doesn't
relish the task, for he’s highly likely to
lose. He cannot win by attempting to
show that the state has especially good
reasons for permitting marriages be-
tween women and men. No, he must
show that the state has powerfully strong
reasons for denying gay and lesbian cou-
ples the opportunity to marry. And what
could those reasons possibly be? The re-
ligious right argues that if gay couples
are allowed to marry, it will lead to the
collapse of traditional, heterosexual fain-
ilies-—surely a preposterous claim. They
also claim that permitting gay marriages
will send out a public message that being
gay is okay, which will in turn cause
some children who would otherwise
have become heterosexual to turn out
gay instead. Apart from our response that
being gay is just fine, this claim rests on
utterly unproven and highly dubious as-
sumptions about what causes people’s
sexual orientations.

So, it is now probable, though not cer-
tain, that within the next year, perhaps
within the next few months, Hawaii will
begin routinely issuing marriage licenses
to gay and lesbian couples.

That will mark a huge step forward to-
ward full recognition of lesbian and
gay relationships in the United States.
No state permits same-sex couples to
marry today. In fact, no state has yet
adopted legislation that permits cou-
ples to register as “domestic partners.”
Several cities—New York, San Fran-
cisco and Burlington, for example——
permit partners to register but no state
has. And these local registration or-
dinances are largely symbolic. They

provide an affirrning acknowledgment

‘ of gay and lesbian couples but carry no

rights, benefits or obligations.
The Significance of Hawaii’s Decision

If gay and lesbian couples are permitted
to marry in Hawaii, what difference will
it make in their lives? First and, to many
the most important, of course, will be
the opportunity to participate in our cul-
ture’s most important single ritual of be-
longing, our most socially significant
voluntary act of bonding. To most
Americans, people are considered “fam-
ily” only if united by blood or marriage.
Many of us who are gay create our own
new families, and reject traditional fami-
ly forms, but many others of us—as the
litigation in Hawaii suggests—would
like the state to endorse our re-
lationships as well, welcoming us into
the larger society of American families.

Whatever your views about the meaning
of marriage, there is considerably more
to Hawaii’s action than symbolism. If
Hawaii starts issuing licenses, it will be
of great interest not just to lesbians and
gay men who live there, but also to oth-

ers of us in the rest of the country who

might travel there and marry and return
to our home states. Let’s look at those
who stay in Hawaii fiist and then at those
who marry there but live elsewhere in the
United States.

For Hawaiians, most clearly, whatever
responsibilities and benefits currently ap-
ply to heterosexual married couples un-
der Hawaiian law will apply to gay or
lesbian couples who marry and live in
Hawaii—-the laws, for example, relating
to state taxes, divorce, dying without a
will, decision-making on behalf of an in-
competent person, lots of others. Most of
these laws provide rights or benefits and
will be perceived as valuable protections
for gay and lesbian couples. A few will

be experienced (at least by one of the
partners) as a burden. Splitting up, for ex-
ample, will be more cumbersome——you
have to get a divorce from the state——and
probably more expensive for one of the
two. Eligibility for Medicaid may be af-
fected, when the income of the spouse is
considered available to the person ap-
plying. But all the benefits and burdens
are simply what gay and lesbian couples
will now have an opportunity to choose
to assume, in the same manner that het-
erosexual couples now choose.

It is less clear where gay and lesbian cou-
ples who marry and live in Hawaii will
stand under federal laws. Today, for ex-
ample, only married couples may file a
joint federal tax return (sometimes a hen-
efit and sometimes not). Similarly, and
more clearly a benefit, only a partner who
is a “spouse,” “wife” or “husband” can
obtain Social Security benefits as the sur-
Vivor of a longtime wage-eamer. The fed-
eral government recognizes as a spouse :1
person whose marriage would have been
recognized as valid in the state where the

person lives. (There is no federal law of I

marriage.) Thus, a lesbian or gay male
couple married in Hawaii who stayed in
Hawaii should be entitled to federal ben-
efits like any other married couple. The
reason that gay and lesbian couples’ fu-
ture position under federal law is un-
certain is that courts might decide that
Congress had opposite—sex couples in
mind when they used the word “spouse”
or “wife." In addition, Congress itself, if
hostile to Hawaii’s decision, might sim-
ply change the tax and Social Security
laws (and other laws) to limit their ap-

plication solely to persons in opposite- ‘

sex marriages. Any such changes would,
of course, be resisted in court, but it is
quite uncertain whether the federal courts
would force the federal government to ac-
cept Hawaii’s definition of who counts as
a spouse for benefits under federal law.

 
 

Janet K. Brown, M A,C.AC Jean Townsend, MA

' Licensed Psychologist Certified Mental
Marlanne Marsh’  Certified Alcohol Counselor Health Counselor
PSUCWGW - ACOA - IDENTITY ISSUES
- TRAUMA AND LOSS
177 Battery Street . _' DEPRESSION _ ‘
Burlington Vennnnt 05401 Individuals Couples Families
Mansfield Psychotherapy Associates 802-865-3230 Milton, VT Burlington, VT
(802) 893-4816 (802) 863-8162

05/94

 

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