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Same-sex marriages in Hawaii

One constitutional amendment
in 1998 with two interpretations!

Sponsored link.

A problem interpreting the 1998 Constitutional Amendment:

It is a matter of record that on General Election Day in 1998-NOV-3, the voters of Hawaii approved an amendment to the state constitutional that involved something to do with gender and marriage.

Everyone agrees that the the amendment passed with about 69% support in favor.

Everyone agrees with what the amendment says.

But beyond that point, there is a total lack of consensus.

We are still investigating the details, but what seems to have happened is that two widely held and conflicting beliefs are circulating among Hawaiians about what the amendment actually means.

This is somewhat reminiscent of biblical interpretation. In most cases, the full diversity of Christians -- from the most fundamentalist to the most progressive believers -- agree on what the Bible says. They just can't agree on what it means.

This problem has generally not happened in other states. There have been many constitutional amendments to state constitutions that are clear and unambiguous. For example on 2008-NOV-04, Californians voted on Proposition 8. The wording was simple and unmistakable:

"Only marriage between a man and a woman is valid or recognized in California."

This amendment is easy to understand:

bulletIf a lesbian couple visits city hall and asks for a marriage license, they get turned down, because "Only marriage between a man and a woman is valid ... in California"
bulletIf a same-sex couple married in Massachusetts, Connecticut, Canada, or in a few other countries moves to California, they suddenly lose their status as marital spouses when they cross the border because "only marriage between a man and a woman is ... recognized in California.". The state views them as roommates, and their children as illegitimate.

But it appears that the 1998 Hawaiian constitutional amendment is more difficult to understand.

What does the 1998 amendment say?

On General Election Day in 1998-NOV-3, about 69% of the people who voted answered yes to Constitutional Amendment 2:

"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."

As a result of the vote, the constitution of Hawaii was altered to add 12 words as Section 23:

"The Legislature shall have the power to reserve marriage to opposite-sex couples." 1

What does the 1998 amendment mean?

There are two belief systems in wide circulation:

bulletThe literal interpretation of the Amendment, which is the interpretation used by the Legislature, and most gays, lesbians, bisexuals, religious liberals, civil rights organizations, constitutional law specialists, etc. is that the voters altered the constitution, granting to the Legislature the authority to pass a bill restricting marriage to one man and one woman, if they so wished. On the other hand, if they didn't want to so restrict marriage, they didn't have to pass enabling legislation.

Before the Amendment of 1998, the Legislature could not pass a constitutional law defining marriage as a union of one woman and one man. Such a law would have been unconstitutional because it would have violated provisions in the constitution that required state laws to be non sexist. Women and men had to be treated equally.

For example: Before the amendment if Jane and John wanted to get married and were old enough and not too closely related, they could marry. If Jane changed her mind and wanted to marry Susan, then they would have been able to marry; otherwise the marriage law would be sexist because it discriminated against same-sex couples.

However, with the amendment, the Legislature could pass a law allowing Jane and John to marry while denying marriage to Jane and Susan.

The Legislature did so wish; the state representatives and senators exercised its newly grated power and banned same-sex marriage in Hawaii.

A unique feature of the amendment to the Hawaii constitution is that it simply over-rides its own equal protection clause and authorizes the Legislature -- if it wishes -- to discriminate against loving, committed same-sex couples. It does not require the Legislature to discriminate.

Thus, the Legislature retains the freedom to legalize same-sex marriage within the state at some time in the future. Alternately the Legislature can create a parallel system of civil unions that gave all of the rights, privileges and obligations of marriage to same-sex couples without the use of the word "marriage."

bulletThe alternate interpretation is mainly used by a wide range of Christian groups, namely:
bulletFundamentalists and other evangelicals,
bulletThe Roman Catholic Church, and
bulletThe Church of Jesus Christ of Latter-day Saints (the Mormon Church).

Their belief is that the amendment directly modified the Constitution so that it defined marriage as a union of one man and one woman.

Four examples of the literal interpretation:

bulletAn anonymous author at Wikipedia wrote:

"Hawaii's amendment is unique in that it does not make same-sex marriage unconstitutional; rather, it allows the state [Legislature] to limit marriage to opposite-sex couples." 2

bulletAn essay on the Colorado General Assembly website states:
"... the Hawaii Legislature adopted a constitutional amendment declaring that the Hawaii Legislature may reserve marriage to opposite-sex couples. Hawaii voters approved this constitutional amendment in 1998." 4
bulletA report on "Legislative Actions" by the American Association for Single People (AASP) said:
"A compromise was finally reached by both houses of the Hawaii Legislature before the 1997 session ended. A constitutional amendment was authorized to be placed on the ballot. It did not prohibit same-sex marriage but instead merely reaffirmed the authority of the Legislature to limit marriage to opposite-sex couples if it so desired.  ... voters approved a constitutional amendment in November 1998. The amendment affirmed that the Legislature had authority to define marriage as a relationship between one man and one woman." 5
bulletMatthew Spalding, writing for the Heritage Foundation, stated:

"...the people of Hawaii amended their state constitution to allow the legislature to reserve marriage to opposite-sex couples, and the legislature passed a Marriage Protection Act that defined marriage as the union between one man and one woman." 6

bulletA newsletter of the Interfaith Working Group for 1998-NOV compared constitutional amendments in Alaska and Hawaii:
"Voters passed anti-marriage constitutional amendments in Hawaii and Alaska by approximately 70% to 30%. The Alaska amendment specifically limits marriage to one man and one woman. The Hawaii amendment allows the legislature to limit marriage to one man and one woman without judicial oversight if they choose." 9

Examples of the alternative interpretation, mostly by Christians:

Many conservative Christian individuals and groups state or imply that the Hawaiian constitutional amendment of 1998 directly defined marriage as a union of one man and one woman:

bulletThe Minnesota Family Council wrote:
"Vermont is the only state that legally recognizes homosexual unions, prescribed by its state legislature in 2000 after the Vermont Supreme Court ruled that the state constitution required such recognition. The Hawaii Supreme Court had issued a similar decision in 1993 but Hawaii residents adopted a state constitutional amendment in 1998 to nullify the court action." 3
bulletChristian Life Resources wrote:
"1998: Two-thirds of Hawaii voters pass a measure to amend the state constitution to define marriage as a compact between a man and woman."
bulletAt a public hearing before the House Judiciary Committee in 2008-FEB-05:
bulletLt. Governor Duke Alona (R) of Hawaii stated in that the office of the Lieutenant Governor is opposed to civil unions because:
"this is same-sex marriage under a different name. The people voted ten years ago to define marriage as between one man and one woman."
bulletAt the same hearing, Gary Okino, a City Councilmember said:
"The people voted in 1998 to keep marriage between one man and one woman."
bulletAlan Spector, chairman of the Family Equality Coalition, corrected Alona and Okino, saying:
Despite what the opposition says, the 1998 Amendment does NOT declare marriage as one man one woman. It gives the power to the legislature. We ask you to stand with us and support civil equality, and HB444." 8 [This may be a paraphrase].
bulletThe Honolulu Star Bulletin stated that if bill HB 444:
"... passes the Senate, it will go to Gov. Linda Lingle for her approval. She has not commented on the measure, but previously said she agreed with voters who approved in 1998 a constitutional amendment that limited marriage to opposite-gender couples." 10

Which interpretation is correct?

We have no expertise in constitutional law, but it seems to us that the literal interpretation of Amendment 2 is obviously the correct one. The amendment is all about granting additional authority to the Legislature. The amendment contains no definition of marriage.

References used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

  1. "The Constitution of the State of Hawaii," at: http://hawaii.gov/
  2. "List of defense of marriage amendments to U.S. state constitutions by type," Wikipedia, 2009-JAN-17, at: http://en.wikipedia.org/
  3. Robert Barnett, "Proposed Constitutional amendment would limit legal definition of marriage to union of one man and one woman," Minnesota Family Council, undated, at: http://www.mfc.org/
  4. "Initiative -- Colorado Marriage Amendment," Colorado General Assembly, at: http://www.leg.state.co.us/ This is a PDF file.
  5. "Hawaii materials: Legislative actions in sessions 1994 to 1999," AASP, undated, at: http://www.unmarriedamerica.org/
  6. Matthew Spalding, "A Defining Moment: Marriage, the Courts, and the Constitution," Heritage Foundation, 2004-MAY-17, at: http://www.heritage.org/
  7. "Homosexuality and same-sex marriage timeline," Christian Life Resources, 2007-JUN-14, at: http://www.christianliferesources.com/
  8. "Keori," "Hawaii Civil Unions Bill First Public Hearing," Black Blog Watch, 2009-FEB-05, at: http://blackblogwatch.com/
  9. "Marriage News," The Newsletter of the Interfaith Working Group," 1998-DEC, at: http://www.iwgonline.org/
  10. Richard Borreca, "Civil-union bill advances," Star Bulletin, 2009-FEB-06. at: http://www.starbulletin.com/

Copyright © 2009 by Ontario Consultants on Religious Tolerance
Originally written: 2009-FEB-18
Latest update and review: 2009-FEB-18
Author: B.A. Robinson

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