Marriage Equality in Hawaii Upheld as Constitutional

The state legislature in Hawaii just passed a law recognizing same-sex marriage and it’s already survived a constitutional challenge? Yep. One of those legislators along with some Christian leaders filed a suit claiming that they didn’t have the authority to do that because of a 1998 amendment passed by popular referendum. A state judge rejected that claim.

McDermott (R, Ewa Beach-Iroquois Point) and the others contend the 1998 constitutional amendment approved by voters that gave the Legislature the power to reserve marriage to heterosexual couples trumps a statutory change to the law. Voters, they argue, would have to approve another constitutional amendment to expand the definition of marriage to include gay couples.

McDermott, for example, claims that his reputation and electability will suffer because he led voters to believe in 1998 that the constitutional amendment would ban same-sex marriage. William Kumia, a pastor and marriage coach, fears hate crimes and lawsuits if he refuses to counsel same-sex couples. Garret Hashimoto, state chairman of the Hawaii Christian Coalition, worries that religious schools would be forced to either teach same-sex education or close…

Molay also argues that the 1998 constitutional amendment was “clear and unambiguous,” giving the Legislature — and not the Supreme Court — the power to define marriage. The constitutional amendment did not, Molay contends, preclude the Legislature from later approving same-sex marriage.

The text of the amendment is absolutely clear. It’s Article 1, Section 23:

Section 23. The legislature shall have the power to reserve marriage to opposite-sex couples.

It doesn’t say only opposite-sex couples can be married, it says the legislature can declare it so. And they can also declare it not so.

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  • cswella

    McDermott, for example, claims that his reputation and electability will suffer because he led voters to believe in 1998 that the constitutional amendment would ban same-sex marriage.

    Because that’s the most important thing, right? I hope that statement of his will do more damage than anything else to his reputation, Streisand effect and all that.

  • Chiroptera

    What clowns.

    McDermott, for example, claims that his reputation and electability will suffer because he led voters to believe in 1998 that the constitutional amendment would ban same-sex marriage.

    Well, if McDermott’s reading comprehension skills are really so bad, maybe he shouldn’t be in the legislature.

    Or, I suppose, he could argue that the amendment did effectively ban same-sex marriage…for 15 years.

    William Kumia, a pastor and marriage coach, fears hate crimes and lawsuits if he refuses to counsel same-sex couples.

    A marriage coach? Does he have a private business that performs a service to the general community? If so, and if he can’t abide by the relevant laws governing every other business, maybe he shouldn’t be in business.

    Garret Hashimoto, state chairman of the Hawaii Christian Coalition, worries that religious schools would be forced to either teach same-sex education or close….”

    Lol wut? What’s “same-sex education”?

  • http://www.gregory-gadow.net Gregory in Seattle

    McDermott, for example, claims that his reputation and electability will suffer because he led voters to believe in 1998 that the constitutional amendment would ban same-sex marriage.

    Thus revealing himself to be an incompetent liar: the wording of Amendment 2 was pretty clear: Shall the Constitution of the state of Hawaii be amended to specify that the Legislature shall have the power to reserve marriage to opposite-sex couples? Nothing whatsoever about banning same-sex marriage.

  • doublereed

    What a bizarre amendment.

  • wscott

    @ Gregory: Yes the wording is clear, but the intent at the time* was to ban same-sex marriage, because it was assumed that the legislature would never vote to approve it. So McDermott isn’t entirely wrong, in that he told voters the measure would ban same-sex marriage, and now it turns out it doesn’t actually do what he claimed it would. So yeah, it’s definitely a blow to his credibility. [cue tiny violin]

    Ironically the Right shot themselves in the foot here by trying to hide their bigotry behind the illusion of democracy. If they’d been more explicit, like Colorado lawmers were in1993 when our Amendment 2 declared GLB** people have no “special” rights, they might’ve had a case here.

    * Disclaimer: I didn’t actually follow the Hawaii Amendment when it was originally passed, so I’m inferring a bit here based on arguments in other states that I did follow.

    ** CO Amendment 2 doesn’t mention trans at all.

  • Moggie

    How is “waah I might not be re-elected!” a credible constitutional challenge?

  • busterggi

    “McDermott, for example, claims that his reputation and electability will suffer because he led voters to believe in 1998 that the constitutional amendment would ban same-sex marriage. ”

    But predicting the end of the world every few years and then pretending you never did doesn’t?

  • cptdoom

    Here I thought McDermott’s credibility was far more undermined when he went head-to-head with an actual scientist during the overly long public testimony over the law: http://youtu.be/ao8H5hJz52E

  • Pierce R. Butler

    Iroquois Point, Hawaii???

  • zippythepinhead

    doublereed@4: Yes, and it pointedly says the “… legislature shall have the power …”, so the courts have no say in the matter!

  • vmanis1

    Iroquois Point is on the western side of Pearl Harbor, across the water from Hickam AFB, and the airport.

    I assume a `marriage coach’ is a bus that takes people to weddings?

    Although I watched the final House vote on livestream, and was ecstatic when it passed, a (VERY) small part of me wishes that McDermott had won. I can just imagine the chaos if any legislator could overturn any law, on the grounds that he had said something incorrect about it. What a precedent that would set!

  • jamessweet

    Interesting. wscott has it right at comment #5: McDermott is indeed accurately representing the intent at the time (well, it was to prevent the Hawaii Supreme Court from recognizing a fundamental right to same-sex marriage, but the intent was to prevent same-sex marriage from happening). At first I was somewhat surprised that it had been written the way it was, but again wscott has the explanation: They wanted to hide behind “Yay democracy!” instead of clearly articulating their true message of “Oh noes, teh geyz!” Who knew that two short decades later, such language would come back to bite them in the ass?

    Ed (and other commenters) are quite correct as well: While the intent of the law at the time might have been to prevent same-sex marriage, the wording of the amendment could not be more clear. It reserves the legislatures right to prohibit same-sex marriage, regardless of any other legal interpretation — but it does not mandate that they must do so. It could not possibly be any more clear.

  • jamessweet

    It would be sort of like if I took out a car loan, and then when I failed to make payments, I was like, “Hey, the intention of this loan wasn’t to just have a car for awhile until it got repossessed, it was to permanently *own* a car!” Well, yes, that was the intent — but the agreement wasn’t that I get to keep the car whether I pay or not, the agreement is that I keep the car as long as I make the payments. I’m sure it would make me look bad to my family to have the car repossessed, just as I’m sure it will make McDermott look bad to anti-equality voters, that the amendment failed to prevent marriage equality in perpetuity. But that’s hardly the point, is it?

  • Pierce R. Butler

    vmanis1 @ # 11: Iroquois Point is on the western side of Pearl Harbor…

    Which is even further from Iroquois territory than the east side of Pearl Harbor, and a long way to paddle a birch-bark canoe.

  • Scott Hanley

    McDermott, for example, claims that his reputation and electability will suffer

    I was going to laugh at that, but then I remembered a certain 14th Amendment claim in Bush v Gore….