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Hawaiian Wedding Bells Ring Alarm Bells

Marriage: As court looks at same-sex unions, debate crosses the ocean.

September 08, 1996|SUSAN ESSOYAN | SPECIAL TO THE TIMES

HONOLULU — Chalk it up to the live-and-let-live atmosphere that prevails in Hawaii. In the six years since Joseph Melillo and Patrick Lagon, a gay couple, asked the state Health Department for a license to marry, they have received just one nasty phone call.

But their move has set off alarm bells across the country, triggered a rancorous national debate and even become a football in the presidential campaign. It has drawn threats of boycotts of Hawaii and dire warnings of damnation from some religious figures.

As their case goes to trial Tuesday, the nation will be watching. But back home in suburban Honolulu, life is quiet for the pioneering pair. Although polls indicate that 70% of Hawaii residents oppose same-sex marriage, Melillo, 49, and Lagon, 39, have felt no negative fallout.

"The attitude here has been: 'It's just two guys who love each other and want to get married--so what?' " Melillo explained, glancing toward Lagon, his partner of 18 years. "Nobody really cares except for the religious right.

"Because Hawaii is composed of minorities, everyone has had to learn to live together and accept each other's customs, attitudes and traits. In another part of the country, anything could have happened to us."

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No one was paying much attention when Melillo and Lagon stepped up to the marriage license counter in December 1990, along with two lesbian couples--Ninia Baehr and Genora Dancel, and Antoinette Pregil and Tammy Rodrigues. As expected, their requests were denied.

This time around, it's a different story. When Baehr vs. Miike opens in state circuit court here, the burden of proof will not be on the three couples seeking to expand the definition of marriage. The burden now rests with the state, which must show a "compelling" reason that they should not wed. Lawrence Miike is the defendant in his capacity as state health director.

After their applications were rejected, the couples appealed all the way to the state Supreme Court, which stunned many observers with its 1993 ruling that denying same-sex couples the right to marry violated the equal-protection clause of the state constitution unless the state could prove such discrimination was justified.

The high court's rationale rested not on the couples' sexual orientation but on their sex. The applicants, the court noted, were treated differently from other couples simply because of their gender. It sent the case back to the circuit court for trial.

On Tuesday, the emotional issue comes to a head in the courtroom of Judge Kevin S.C. Chang, a former prosecutor and corporate lawyer with a reputation as a fair, moderate jurist. It will be his decision alone. There will be no jury.

To prevail, the state must convince Chang that denying marriage licenses to same-sex couples is a narrowly drawn restriction on their freedom and that the issue is important to society as a whole. The government plans to argue that children are better off with both a mother and father, and that the state should, as a matter of policy, promote the traditional family unit.

"The courts have consistently found that the health and welfare of children is a compelling interest," said Rick Eichor, the deputy attorney general handling the case. "We can show very strongly that it is in the best interests of children that they be raised by their parents."

He also contends that the law "has to conform, in certain basic respects, to the beliefs and values of the people."

"I think that it's very difficult to say that morality is not a basis for regulating marriage," he said. "Otherwise, you're going to have trouble distinguishing polygamy, bigamy."

In addition, the state will argue that Hawaii has a strong interest in having its marriages recognized in other states.

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Fears that Hawaii will legalize same-sex marriage have triggered a wave of preemptive legislation around the country.

The proposed Defense of Marriage Act, for example, would deny federal benefits to same-sex couples and allow states to ignore such unions. That legislation already has made its way through the House, and the Senate is virtually certain to give its approval this week. President Clinton has said he will sign the bill.

In California, conservative lawmakers pushed two bills this year to prevent recognition of same-sex marriages performed outside the state. Each passed in the Republican-run Assembly but died in the Democratic-majority Senate.

"It is exceedingly imprudent," warned conservative pundit William J. Bennett, "to conduct a radical, untested and inherently flawed social experiment on an institution that is the keystone in the arch of civilization."

Plaintiffs' attorney Daniel Foley sees things differently, noting that the concept of marriage has evolved over time. Until the 1960s, he said, marrying a member of another race was a crime in many states. Indeed, the Hawaii Supreme Court cited the U.S. Supreme Court's decision striking down such laws to bolster its decision in the same-sex marriage case.

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