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A Loss That Moves Us Forward, Is In The End, A Victory
By Dan Foley
November, 1998
After a hard fought battle, on November 3, Hawaii voters approved an amendment to the state constitution that gives the legislature the power to reserve marriage to opposite sex couples. The amendment's passage culminated a national effort by the Mormon Church and other religious political groups to remove the state constitutional underpinning of the case I initiated and am shepherding through Hawaii's legal system with my co-counsel Evan Wolfson of Lambda Legal Defense and Education Fund.
The passage of the amendment was a setback to our efforts but it in no way marks the end of those efforts. In fact, it opens new chapters in the long term struggle to achieve equal marriage rights for lesbian and gay people.
The day after the election, Governor Ben Cayetano, who had narrowly won his reelection bid the night before, announced on a morning interview show that he would be introducing a comprehensive registered partnership proposal in the next session of the legislature. He said that the campaign to pass the amendment had gotten far too intolerant in the closing days of the campaign.
It is also important to point out that our case Baehr v. Miike, is still alive and well. Though there will be an attempt by the Attorney General to have the case dismissed based on the outcome of the vote, Evan and I will argue before the Hawaii Supreme Court that the components of the case are still valid and are not impacted by the passage of the amendment. In fact, most of the rights and responsibilities of marriage, under a different name, could still be granted to gay people in Hawaii. This could be accomplished by a combination of the Baehr case and the registered partner bill that the governor has promised.
This was not lost on Mike Gabbard, the principal spokesperson for the group Save Tradition Marriage, the primary group that pushed for the amendment's passage. During the campaign, Mr. Gabbard had claimed he and his group were not anti-gay and only wanted to make sure marriage stayed between one man and one woman. The day after Governor Cayetano's remarks, which he reiterated at an afternoon press conference, Mr. Gabbard stormed the Governor's office and demanded that he withdraw his registered partnership proposal. The Governor was not in his office, but made it perfectly clear through spokespeople that he had no intention of succumbing to Gabbard's wishes. The Governor said that the final week of campaigning by the anti-gay Gabbard had an extremely negative impact on Hawaii's reputation, and he was intent on restoring Hawaii as a tolerant place.
The battle against the constitutional amendment was a professionally executed, valiant effort. The strategy was sound, and attracted new allies in our long term efforts. Hawaii's civil rights community is profoundly grateful to the Human Rights Campaign, which provided a massive investment ($1.4 million) and incredible energy and skill. We are equally grateful to Tim Gill, Robert Wilson, and the many people across the country that contributed to the effort. The campaign that you funded actually created the political space for a likely victory in Hawaii on solid political and legal ground that could be a platform from which future battles are waged to secure equal recognition of gay and lesbian relationships nationally, and ultimately full and equal marriage rights. We might have lost this time at the ballot box, but we are well on our way to winning the broader fight for equal treatment under the law for lesbian and gay people in this country. And the noble campaign to defeat this amendment will be seen as a step towards our ultimate success.
Now that the burden of crisis-driven ballot fights is for the moment lifted from us, we must renew our efforts today, to educate this country on why it is fair, just and right for gay people to be granted the freedom to marry. Moving public opinion is the largest challenge before us.
We must continue to engage non-gay people patiently and persistently in every corner of the country with our eyes on the prize: full equality for gay and lesbian Americans, including the freedom to marry. Other states should do what we have done this year in Hawaii -- identify and approach diverse opinion leaders, clergy and groups, educating them on gay lives and marriage. As Evan often says, you don't get half a loaf by asking for half a loaf. Nor as we move forward should gay people settle for anything less than full equality, even as we get there step by step.
Dan Foley is the attorney representing the three couples in Baehr v. Miike along with co-counsel
Evan Wolfson of the Lambda Legal Defense and Education Fund.
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