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.