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Starting Jan. 1, same-sex couples in Hawaii are now permitted to join in civil union under new state law. For some participants in the decades-long movement for gay and lesbian rights, this represents a real triumph, but for others, a civil union is nothing more than a naked act of discrimination. Because what isn’t being talked about are the 1,049 federal rights and benefits from which those joined by civil union, instead of marriage, are excluded.

On Nov. 18, 2011, Janin Kleid and Natasha N. Jackson applied for a marriage license from the Hawaii Department of Health. A representative of the department told them they were not permitted to marry because they are both women. On Dec. 7, Kleid and Jackson filed a lawsuit against Governor Abercrombie, alleging that the state’s denying them the right to marry violates their rights to equal protection and due process under the Fourteenth Amendment of the US Constitution. The deadline for responding to the complaint was originally set for December, but after two requests by the state attorney general, the extension is now set for Jan. 17.

“The problem with civil unions is that, for all purposes of state law, it gives you everything, theoretically, that marriage gives you,” says Kleid and Jackson’s attorney, John D’Amato. “The problem is that you don’t have a choice, if you are a same-sex couple, as to whether you have a civil union or a marriage. You can only have a civil union.”

And that status falls short when it comes to the protections couples can receive under federal law.

While a civil union gives you everything marriage gives you under state law, it does not give same-sex partners the same rights and benefits for which spouses qualify under federal law–and those rights and benefits add up to 1,049 differences.

Civil Rights

Besides the fact that civil union couples are denied over a thousand federal rights and benefits for which married couples qualify, D’Amato compares his clients’ situation to the social struggles of the ‘50s and ‘60s.

“If you were in a segregated state, and you were African American…the bus took you to the same place, the seats were all the same, but you couldn’t sit in the front of the bus. And that’s what this civil union law says,” D’Amato points out. “If you’re lesbian or gay, you’re going to sit in the back of the bus. It’s going to take you to the same places under state law that marriage will take you, but you can’t call yourself married.”

What you don’t get

What federal law does, or what it did until the advent of the Defense of Marriage Act (DOMA), enacted September 1996, is to defer to state law to determine who can be married.

“The Defense of Marriage Act, section 3 says that, for all purposes of federal law, the only marriages that are going to count are ones between opposite sexes,” says D’Amato. “So on its face, federal law would deprive [Jackson] and [Kleid] the benefits of spouses anyway, even if Hawaii state law permitted them to marry.”

But in a letter to the US Congress on Feb. 21, 2011, Attorney General Eric Holder conveyed President Obama’s determination that section 3 of DOMA is unconstitutional because it’s a violation of the federal guarantee of equal protection of the law. Consequently, Holder said, the US Government would not enforce DOMA in jurisdictions that recognize same-sex marriage. D’Amato concludes that same-sex couples in Hawaii would have the rights and benefits of spouses under federal law if Hawaii law gave them the right to marry. In other words, he says, denying recognition as spouses to couples who are legally married under state law, solely on the ground that they are the same-sex, is not something that the federal government will defend.

FEDERAL marriage PERKS

“For example,” D’Amato says, “if your employer provides health insurance coverage for spouses, and you cover your spouse, the money that the employer spends on your spouse’s coverage is not income to you for federal income tax purposes. It’s excluded from your income, and you don’t have to recognize it as wages. Any money that you put in to cover your spouse, as an employee, you could do on a pre-tax basis and also exclude that from wages.”

In contrast, “If you’re trying to cover your civil unions partner, you can’t do that on a pre-tax basis unless the person is a tax dependant,” D’Amato says, “and I can tell you that employers aren’t going to make those determinations [under civil union guidelines]. What they’re going to do is treat coverage given to civil unions partners on an after tax basis, even though it’s income to the employee, and that’s a substantial amount of money.”

Other differences between a civil union and marriage, under federal law, include transfers from one spouse to another, D’Amato says. In a marriage, transfers of property aren’t taxable, while transfers to a civil union partner will be federally taxed. Other rights and benefits include insurance breaks, sick leave, Social Security survivor benefits, bereavement leave and assumption of a spouse’s pension, he explains, all of which represent significant economic differences between marriages and civil unions.

Sorry Miss Jackson

While one might assume that Jackson and Kleid are gay rights activists suing the state not just to make a point but also to change history in Hawaii, that would be overstretching.

Jackson, who has Multiple sclerosis (MS) and who has been a client of D’Amato’s for more than a year, had confided to her attorney that she and her girlfriend of four years were talking about making a formal commitment. The idea of a lawsuit wasn’t considered until their application for a Hawaii marriage license was refused.

“After that, we talked about Hawaii law,” D’Amato recalls. “I told them that I would represent them on a pro bono basis, as I’d been thinking about this issue for some years now.”

And as if being gay wasn’t enough, Jackson and Kleid had another issue to deal with.

“We’re obviously of two different races,” says Jackson, who’s African American. “But I told [my mom] to deal with it and call me when she’s done!”

Kleid admits that she believes her family is disappointed, “but I wouldn’t say they’re not supportive. The funny part was that I was in heavy denial for a while. I wasn’t one way or another, I was what people might call asexual. I pretty much knew in my heart what I was… but I was more concerned about my parents.”

Jackson says she found out about civil unions from her dad, who passed away just weeks ago.

“He texted me at like three in the morning,” she says. “It said congratulations, and I thought, what did I do? He said that civil unions passed in Hawaii, and that he’d been following it for a while. He knew I was with Janin, and that our relationship wanted to go there.”

The let down

So at first, to Jackson and to Kleid, civil unions seemed perfect–they could legally unite and share the benefits they needed, they thought, until they realized they couldn’t.

“I was really excited about civil unions,” Jackson says, “but then life happened. Jobs, losing jobs, the economy… And slowly but surely I began to see how a civil union wasn’t going to be enough for our family.”

The practical value of marriage was underscored when Kleid was laid off earlier in the year. “Natasha’s company wouldn’t allow her to put me on her insurance,” Kleid says. “They had domestic partner benefits, but because I wasn’t a spouse, I couldn’t get added.”

“So then I waited until November for open enrollment, and tried again,” says Jackson. “But then I was laid off too. I fell under COBRA, so I went to my employer again and told them that Janin had been added [as a domestic partner] but she told me that since COBRA is federal, that I couldn’t add her.”

Kleid and Jackson say they want the benefits as well as the responsibilities of marriage, whether it’s divorce fees or joint tax returns, “We’re not just trying to ask for rights while saying no to the responsibilities,” says Jackson.

Up to Abercrombie

Next week–by Tue., Jan. 17–Abercrombie will have had to file his response, making the choice of whether the state will fight Kleid and Jackson’s lawsuit or decline to defend Hawaii’s restriction of marriage to same-sex couples on the ground that it is unconstitutional.

On that basis, it is D’Amato’s hope that Abercrombie will decline to defend Hawaii’s marriage law, much as Gov. Schwarzenegger and then Attorney-General Jerry Brown did in a similar case in California. Perry v. Schwarzenegger challenged the federal constitutionality of Proposition 8, a 2008 ballot initiative that amended the California Constitution to restrict marriage to opposite-sex couples. The landmark case ruled that Proposition 8 violated the Due Process and Equal Protection Clauses of the Fourteenth Amendment, but a 2011 appeal challenged the validity of the initiative measure, and now, awaits review by the US Supreme Court, a process which may take years.

What if?

So what if Abercrombie’s response on Jan. 10 is to defend the law? In that case, D’Amato says, they will challenge the state to show that same-sex couples should have the same right to marry as opposite-sex couples. “The state’s not permitted to act upon private, moral or religious or traditional beliefs. It has to have some kind of rational purpose for its law.”

Jackson wants people to understand that this isn’t just a political decision, “I appreciate everything that people have done in the past with regards to civil unions,” she says. “I wasn’t necessarily standing beside them, but I was definitely supporting them and I still am. I don’t want to seem ungrateful for their efforts.”

Hawaii pioneers

In December of 1990, a trio of same-sex couples applied for marriage licenses at the same Department of Health that rejected Jackson and Kleid.

Ninia Baehr and Genora Dancel, Tammy Rodriquez and Antoinette Pregil and Pat Lagoon and Joe Melillo met all the requirements for marriage–except, of course, that they were not couples of opposite sex. Their applications were denied. In May of that same year, Dan Foley, now Judge Foley, filed suit on behalf of the couples originally known as Baehr v. Lewin, ultimately called Baehr v. Miike. The plaintiffs sought a ruling that declared denying the right to marry to same-sex couples violates their right to equal protection under the Hawaii constitution.

After a dismissal by the trial court, the plaintiffs’ appeal went to the Hawaii State Supreme Court. In a 1993 opinion by Justice Steven Levinson, the Supreme Court held that marriage was a fundamental right, that denying same-sex couples that right was presumptively unconstitutional and that to overcome the presumption the state would have to show compelling reasons. On Dec. 3, 1996, Judge Kevin Chang ruled that the state had failed to do so, and that denying same-sex couples the ability to marry was therefore unconstitutional, and that the state was prohibited from refusing to issue marriage licenses to “otherwise-qualified same-sex couples.”

One day later, Chang stayed his ruling, acknowledging concern for the position couples might find themselves in should the Supreme Court reverse him on appeal. Then, in November of 1998, Hawaii voters approved Amendment 2–known as the Marriage Amendment–which read, “The legislature shall have the power to reserve marriage to opposite-sex couples.”

D’Amato says he can’t emphasize enough the important work of Dan Foley, Justice Levinson and Judge Chang, whose efforts in the ‘90s propelled an entire movement and led to legalizing same-sex marriage in other jurisdictions.

“Their work in advancing this cause made everything else possible,” says D’Amato. “The backlash to what was done by those three individuals culminated in a so-called marriage amendment. I don’t think that’s who we are as a state,” says D’Amato. “I think we’re bigger than that, better than that. And I think if that amendment were to be voted on today, it wouldn’t pass.”

Fast-forward 13 years to February 2011, when the state senate finally passed the civil unions bill, which Abercrombie signed into law, making Hawaii the seventh state to permit civil unions (see sidebar, left).

“This bill represents equal rights for everyone in Hawaii, everyone who comes here,” Abercrombie said during the signing ceremony.”

The question we’re left with is, what constitutes “equal rights”? And will Abercrombie and the state of Hawaii stand up for true equality for gay and lesbian couples on Jan. 17, or for the semblance of equality under Hawaii’s “separate-but-equal” unions for opposite sex and same-sex couples?