Tulane
Law Review: |
The Hawaii Supreme Court was the first court in the nation to rule that a gender restriction in a marriage statute may be unconstitutional. It left open the question, however, as to whether the government could prove that compelling reasons existed to limit marriage to opposite-sex couples. The threat of a judicial fiat legalizing same-sex marriage prompted the Hawaii Legislature to seriously consider other alternatives. Constitutional law Professor Jon Van Dyke advised legislators that nothing short of a comprehensive domestic partnership act would pass judicial scrutiny. Known for his ongoing expertise in this field, Los Angeles attorney Thomas F. Coleman was invited by the Hawaii Commission on Sexual Orientation and the Law to discuss the domestic partnership option with commissioners in 1995. The following year, he was one of three witnesses invited by the Senate Judiciary Committee to make a presentation at an informational briefing for senators on the issue of domestic partnership. Coleman spent several weeks in Hawaii during the 1996 legislative session. He met personally with almost all of the legislators or their staff members. He analyzed all proposed legislation introduced that year and testified at several committee hearings. As a result of his experiences in Hawaii in 1995 and 1996, as well as his prior experience in October 1993 when he testified before a legislative committee about the option of domestic partnership, Coleman decided to write a law review article on this issue. The article was published in "Law and Sexuality," a periodical published and edited by the students of the Tulane University School of Law. Although it appeared in the official 1995 edition, that volume was not released until the summer of 1996. Because of this delay in publication, the process and results of the 1996 legislative session in Hawaii were able to be included in his article. The article was not intended as a form of political advocacy. It did not argue that same-sex marriage should not be legalized in Hawaii or elsewhere. Rather, it was intended to explore issues which had been virtually ignored by legal treatises and legal scholars, most of whom were advocating either for or against gay marriage. The article focused on legal concepts such as "equity versus identicality" and "all deliberate speed." It also examined potential state interests which a court might find as compelling reasons to support the enactment of a comprehensive domestic partnership act. The article, a copy of which is included in this booklet, also contains the framework for a comprehensive domestic partnership act, including potential legislative findings, as well as a copy of a model act which Coleman presented to the Hawaii Commission on Sexual Orientation and the Law.
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