Text of HI SB 1369 (2014)

THE SENATE S.B. NO. 1369 TWENTY-SEVENTH LEGISLATURE, 2013 STATE OF HAWAII A BILL FOR AN ACT relating to marriage between individuals of the same sex. BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII: SECTION 1. The purpose of this Act is to recognize marriages between individuals of the same sex in the State of Hawaii. It is the intent of the legislature to extend to same-sex couples the right to marry and receive all the same rights, benefits, protections, and responsibilities of marriage as opposite-sex couples receive under the laws of this State. It is the intent of the legislature that marriages solemnized in accordance with this Act be equal in all respects to the marriages of opposite-sex couples under the laws of this State. The legislature intends that there be no legal distinction between same-sex couples and opposite-sex couples with respect to marriage under the laws of this State. The legislature intends that all provisions of law regarding marriage be equally applied to same-sex couples and opposite-sex couples, regardless of whether this Act amends any particular provision of law or does not amend any particular provision of law. SECTION 2. Chapter 572, Hawaii Revised Statutes, is amended by adding seven new sections to be appropriately designated and to read as follows: "§572-A Ability to marry not limited by gender of spouse. Marriage shall be permitted both for same-sex couples and for opposite-sex couples, if the two individuals are otherwise eligible to marry under this chapter. §572-B Continuity of rights; civil union or reciprocal beneficiary relationships. Notwithstanding any other provision of law, two individuals who are civil union partners or reciprocal beneficiaries with each other, and who seek to marry each other under this chapter, shall be permitted to obtain a marriage license under section 572-6 without terminating their civil union or reciprocal beneficiary relationship. The couple's civil union or reciprocal beneficiary relationship shall continue uninterrupted until the solemnization of the marriage consistent with this chapter, and the solemnization of the couple's marriage shall automatically terminate the couple's civil union or reciprocal beneficiary relationship. A couple seeking a license for, or entering, a marriage under this chapter shall not diminish any of the rights, benefits, protections, and responsibilities that existed previously due to the couple's earlier status as civil union partners or reciprocal beneficiaries. §572-C Rights held by civil union partners or reciprocal beneficiaries who enter a marriage. (a) If two civil union partners enter into a marriage with each other, the rights, benefits, protections, and responsibilities created by the civil union shall be continuous through the marriage and deemed to have accrued as of the first date these rights existed under the civil union; provided that the civil union was automatically terminated by the solemnization of a marriage. (b) If two reciprocal beneficiaries enter into a marriage with each other, the rights, benefits, protections, and responsibilities created by the reciprocal beneficiary relationship shall be continuous through the marriage and deemed to have accrued as of the first date these rights existed under the reciprocal beneficiary relationship; provided that the reciprocal beneficiary relationship was automatically terminated by the solemnization of a marriage. Any rights, benefits, protections, and responsibilities created by the solemnization of a marriage that were not included within a reciprocal beneficiary relationship shall be recognized as of the date the marriage was solemnized. (c) Property held in tenancy by the entirety shall be subject to section 509-3. §572-D Interpretation of terminology to be gender neutral. When necessary to implement the rights, benefits, protections and responsibilities of spouses under the laws of this State, all gender-specific terminology, such as "husband", "wife", "widow", "widower", or similar terms, shall be construed in a gender-neutral manner. This interpretation shall apply to all sources of law, including statutes, administrative rules, court decisions, the common law, or any other source of civil law, including those that establish parentage presumptions based on marriage. §572-E Reliance on federal law. To the extent that provisions of the law of this State adopt, refer to, or rely upon, provisions of federal law in a way that otherwise would cause same-sex spouses to be treated differently than opposite-sex spouses, same-sex spouses shall be treated by the law of this State as if federal law treated them in the same manner as the law of this State. §572-F Refusal to solemnize a marriage. Nothing in this chapter shall be construed to require any person authorized to perform solemnizations pursuant to this chapter to solemnize any marriage in violation of the person's right to free exercise of religion guaranteed by the Constitution of the State of Hawaii and the United States Constitution. No authorized person who fails or refuses to solemnize any marriage under this section shall be subject to any fine, penalty, or other civil action for the failure or refusal. §572-G Religious organizations and facilities; liability exemption under certain circumstances. (a) A religious organization shall not be required to make a religious facility owned or leased by the religious organization available for solemnization of a particular marriage; provided that: (1) The religious facility is regularly used by the religious organization for its religious purposes; (2) For solemnization of marriages pursuant to this chapter, the religious organization restricts use of the religious facility to its members; and (3) The religious organization does not operate the religious facility as a for profit business. (b) A religious organization that refuses to make a religious facility available for solemnization of a marriage under subsection (a) shall not be subject to any fine, penalty, or civil liability for the refusal. (c) Nothing in this section shall be interpreted to exempt the owner or operator of any religious facility from the requirements of chapter 489 if the religious facility is a place of public accommodation as defined in section 489-2." SECTION 3. Section 231-21.5, Hawaii Revised Statutes, is amended to read as follows: "[[]§231-21.5[]] Effect of marriage of same-sex couples or civil union. All provisions of the Internal Revenue Code referred to in this chapter that apply to a husband and wife, spouses, or person in a legal marital relationship shall be deemed to apply in this chapter to same-sex couples married under chapter 572 and to partners in a civil union under chapter 572B with the same force and effect as if they were "husband and wife", "spouses", or other terms that describe persons in a legal marital relationship." SECTION 4. Section 235-93.4, Hawaii Revised Statutes, is amended to read as follows: "[[]§235-93.4[]] Effect of marriage of same-sex couples or civil union. All provisions of the Internal Revenue Code referred to in this chapter that apply to a husband and wife, spouses, or person in a legal marital relationship shall be deemed to apply in this chapter to same-sex couples married under chapter 572 and partners in a civil union under chapter 572B with the same force and effect as if they were "husband and wife", "spouses", or other terms that describe persons in a legal marital relationship." SECTION 5. Section 236E-4, Hawaii Revised Statutes, is amended by amending subsection (c) to read as follows: "(c) The department shall submit to the legislature, no later than twenty days prior to the convening of each regular session, proposed legislation to amend section 236E‑3 and any other sections and subsections of this chapter as may be necessary to adopt the Internal Revenue Code as it exists on the December 31 preceding the regular session. In submitting the proposed legislation, the department may provide that certain amendments made to the Internal Revenue Code by Congress during the preceding calendar year shall not be operative in this State or shall be limited in their operation. The department shall also prepare a digest and explanation of the amended provisions of the Internal Revenue Code recommended for operation, as well as those provisions that are recommended to be limited in their operation, or that are not recommended for operation, and shall submit with the proposed legislation required by this subsection the digest, explanation, and a statement of revenue impact of the adoption of the proposed legislation. In preparing the proposed legislation, digest, and explanation, the department may request the assistance of the legislative reference bureau. It is the intent of the legislature to adopt all amendments made to the Internal Revenue Code during the calendar year preceding each regular session; provided that the legislature may choose to adopt none of the amendments to the Internal Revenue Code or may provide that certain amendments are limited in their operation. All provisions of the Internal Revenue Code referred to in this chapter that apply to a husband and wife, spouses, or persons in a legal marital relationship shall be deemed to apply in this chapter to same-sex couples married under chapter 572 and to partners in a civil union under chapter 572B with the same force and effect as if they were "husband and wife", "spouses", or other terms that describe persons in a legal marital relationship." SECTION 6. Section 572-1, Hawaii Revised Statutes, is amended to read as follows: "§572-1 Requisites of valid marriage contract. In order to make valid the marriage contract, [which shall be only between a man and a woman,] it shall be necessary that: (1) The respective parties do not stand in relation to each other of ancestor and descendant of any degree whatsoever, [brother and sister] two siblings of the half as well as to the whole blood, uncle and niece, uncle and nephew, aunt and nephew, aunt and niece, whether the relationship is the result of the issue of parents married or not married to each other or parents who are partners in a civil union or not partners in a civil union; (2) Each of the parties at the time of contracting the marriage is at least sixteen years of age; provided that with the written approval of the family court of the circuit within which the minor resides, it shall be lawful for a person under the age of sixteen years, but in no event under the age of fifteen years, to marry, subject to section 572-2; (3) [The man does not at the time have any lawful wife or civil union partner living and that the woman does not at the time have any lawful husband or civil union partner living;] Neither party has at the time any lawful wife, husband, spouse, civil union partner, or reciprocal beneficiary living, except as provided in section 572-B; (4) Consent of neither party to the marriage has been obtained by force, duress, or fraud; (5) Neither of the parties is a person afflicted with any loathsome disease concealed from, and unknown to, the other party; (6) The [man and woman] parties to be married in the State shall have duly obtained a license for that purpose from the agent appointed to grant marriage licenses; and (7) The marriage ceremony be performed in the State by a person or society with a valid license to solemnize marriages and the [man and the woman] parties to be married and the person performing the marriage ceremony be all physically present at the same place and time for the marriage ceremony." SECTION 7. Section 572-3, Hawaii Revised Statutes, is amended to read as follows: "§572-3 Contracted without the State. Marriages [between a man and a woman] legal [in the country] where contracted shall be held legal in the courts of this State." SECTION 8. Section 572-13, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows: "(a) Recordkeeping. Every person authorized to solemnize marriage shall make and preserve a record of every marriage by the person solemnized, comprising the names of the [man and woman] parties married, their place of residence, and the date of their marriage. Every person authorized to solemnize marriage, who neglects to keep a record of any marriage by the person solemnized shall be fined $50." SECTION 9. Section 572C-2, Hawaii Revised Statutes, is amended to read as follows: "[[]§572C-2[]] Findings. The [legislature finds that the people of Hawaii choose to preserve the tradition of marriage as a unique social institution based upon the committed union of one man and one woman. The legislature further finds that because of its unique status, marriage provides access to a multiplicity of rights and benefits throughout our laws that are contingent upon that status. As such, marriage should be subject to restrictions such as prohibiting respective parties to a valid marriage contract from standing in relation to each other, i.e., brother and sister of the half as well as to the whole blood, uncle and niece, aunt and nephew. However, the] legislature [concurrently] acknowledges that there are many individuals who have significant personal, emotional, and economic relationships with another individual yet are prohibited by [such] legal restrictions from marrying. For example, two individuals who are related to one another, such as a widowed mother and her unmarried son[, or two individuals who are of the same gender]. Therefore, the legislature believes that certain rights and benefits presently available only to married couples should be made available to couples comprised of two individuals who are legally prohibited from marrying one another." SECTION 10. Notwithstanding any other provision of law, nothing in this Act invalidates any reciprocal beneficiary relationship in existence before the effective date of this Act. Any such reciprocal beneficiary relationship shall continue until terminated in accordance with section 572-B, Hawaii Revised Statutes, or section 572C-7, Hawaii Revised Statutes. SECTION 11. The department of health, in its discretion, may make any changes that it deems necessary to rules, internal procedures, or forms, in advance of this Act's effective date, to aid in the implementation of this Act. SECTION 12. The department of health may issue marriage licenses under section 572-6, Hawaii Revised Statutes, beginning on December 2, 2013, for the solemnization of marriages to take place consistent with the amendments made by this Act; provided that marriages permitted by this Act shall be solemnized no earlier than January 1, 2014. SECTION 13. In codifying the new sections added by section 2 of this Act, the revisor of statutes shall substitute appropriate section numbers for the letters used in designating the new sections in this Act. SECTION 14. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored. SECTION 15. This Act, upon its approval, shall take effect on January 1, 2014; provided that sections 11 and 12 shall take effect upon approval. INTRODUCED BY: _____________________________ Report Title: Marriage; Marriage Equality Description: Recognizes marriages between individuals of the same sex. Extends to same-sex couples the same rights, benefits, protections, and responsibilities of marriage that opposite-sex couples receive. Permits marriage licenses to be issued beginning 12/2/2013 but prohibits solemnizations until 1/1/2014. The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.