The Commission on Sexual Orientation and the Law was created
by the Hawaii Legislature to examine how state law treated same-sex couples and to make
recommendations for possible legislative changes.
The Commission issued a report to the Legislature in December
1995. It recommended that the Legislature legalize same-sex marriage. Alternatively, it
proposed that the Legislature enact a Comprehensive Domestic Partnership Act open to all
unmarried couples regardless of their gender. Based on a model supplied by Los Angeles
attorney Thomas F. Coleman, a national authority on family diversity, domestic
partnership, and marital status discrimination, the Commission’s report included the
draft of a model domestic partnership act. That model act was mentioned by the Vermont
Supreme Court in its recent opinion in Baker v. State.
During his testimony before the Commission in October 1995,
constitutional law Professor Jon Van Dyke advised the Commission that in his opinion the
Hawaii Supreme Court would uphold a decision of the Legislature to adopt a comprehensive
domestic partnership act rather than legalizing same-sex marriage. He stressed, however,
that in order to pass constitutional muster such a law would have to be truly
"comprehensive" and confer all or most of state-law benefits and obligations of
marriage to domestic partners. Professor Van Dyke reaffirmed this position during
subsequent testimony before the Legislature in 1996.
The model domestic partnership act was introduced into the
Hawaii Senate as SB 3113 in January 1996. The bill passed the Senate but was not voted on
in the House. Inaction in the House was probably due to the fact that virtually no one was
lobbying for the bill. Gay and lesbian rights activists, spurred on with hopes for a
judicial victory, demanded nothing short of gay marriage. Conservatives, with backing from
many religious leaders and organizations, opposed any reform whatsoever and insisted that
the Legislature put a constitutional amendment on the ballot to prohibit same-sex
marriage. As a result, the 1996 legislative session ended in a stalemate because Senate
leadership was not willing to approve a constitutional amendment and House leaders were
unwilling to pass a domestic partnership act.
The materials in this booklet include: (1) excerpts from the
Commission’s report; (2) summaries of the testimony of Professor Van Dyke and
attorney Thomas F. Coleman before the Commission in October 1995; and (3) a special report
published by Spectrum Institute which was distributed to commissioners at the request of
Commission Chairperson Thomas Gill.
A second booklet has been prepared which contains relevant
materials from legislative sessions in 1996 through 1999. A third booklet contains a law
review article published in 1996 which discusses why the Hawaii Legislature had compelling
reasons to pass a comprehensive domestic partnership act and why the state Supreme Court
might find such a law constitutional.
