Hawaii’s Domestic-Partner Law a Bust; Ambiguity Blamed

When Hawaii became the first state in the country to extend broad rights to domestic partners in July, the news was trumpeted as a breakthrough for gays and lesbians.

Hawaii’s benefits package was the most sweeping ever passed, covering 60 items from medical insurance to survivorship rights. Unlike efforts in mainland cities, the law applies statewide. Even non-Hawaii residents are eligible, although benefits take effect only when they are in the islands.

The state health department braced for a possible onslaught of applicants, estimating that as many as 20,000 to 30,000 people might sign up. But the new law has turned out to be a bust.

As of Dec. 10, just 296 couples had signed up as “reciprocal beneficiaries,” as they are formally known. Twenty-five are from out of state. Although more than 5,000 people have obtained applications, that’s as far as most have been willing to go.

“There has been so much ambiguity, people are hesitant to take advantage of the law,” said Michael D. Rudy, a Honolulu attorney who handles estate planning.

The law has been mired in uncertainty since it took effect. Several employers challenged it in court, and a recent decision in the case gutted its boldest provision: health coverage for the partners of private employees. U.S. District Judge David Ezra cited a technical flaw in the law, noting that it conflicts with a federal statute ensuring uniformity in employee benefit laws from state to state.

His decision doesn’t affect public workers, who may obtain health coverage for nontraditional partners. But many of them have been scared off by a caveat added by the Hawaii Public Employees Health Fund, making them liable for higher costs. In addition, the public employee health provision expires automatically June 30, 1999, unless the Legislature extends it.

“That isn’t a guarantee; that’s a gamble,” said Sue Reardon, a teacher who registered her partnership with Michelle Zalenski, but did not merge their health plans. “It fortifies what we have said all along, that the only way to get across-the-board equal rights is through marriage.”

The few pioneers who have taken advantage of the law now enjoy important rights such as hospital visitation, guardianship, joint property ownership and inheritance. They have been frustrated, however, in obtaining practical benefits like auto insurance, which the law was supposed to facilitate.

“It took us from being third-class citizens to being second-class citizens,” Reardon said.

The partnership law was part of a compromise by legislators last spring aimed at derailing the same-sex marriage case, now on appeal to the Hawaii Supreme Court. A companion bill will put a constitutional amendment before Hawaii voters in November allowing the Legislature “to reserve marriage to opposite-sex couples.”

To make the partnership law more palatable to conservatives, it was not limited to same-sex couples. Any two adults who cannot legally marry each other are eligible: a widow and her grown child, for example, or two siblings. About one-fourth of those who have signed up as reciprocal beneficiaries fall into this category.

There are other peculiarities in the law as well. A reciprocal beneficiary relationship can be terminated by one partner without the consent--or even knowledge--of the other, Rudy notes. Unlike divorce proceedings, the law has no procedures to ensure that both sides are treated fairly in disposing of property upon dissolution.

Rudy and others want the Legislature to amend the law in the session that starts next month. It’s unlikely, however, that lawmakers will want to tackle the hot topic again in a general-election year.

The issue may become moot. The Hawaii Supreme Court could hand down its decision on the same-sex marriage case at any time. It is expected to uphold a December 1996 circuit court ruling that banning same-sex marriage is unjustified sex discrimination. If it rules before November’s vote on the constitutional amendment, the people of Hawaii may have a chance to sample same-sex marriage before deciding whether to prohibit it.