One constitutional amendment
in 1998 with two interpretations!
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
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
This amendment is easy to understand:
If 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"
If 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
What does the 1998 amendment mean?
There are two belief systems in wide circulation:
The 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
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
The alternate interpretation is mainly used
by a wide range of Christian groups, namely:
Fundamentalists and other evangelicals,
The Roman Catholic Church, and
The 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:
An 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
An essay on the Colorado General Assembly website states:
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
A 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
Matthew Spalding, writing for the Heritage
"...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
A 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."
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:
The 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."
Christian 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."
At a public hearing before the House Judiciary Committee in 2008-FEB-05:
Lt. 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."
At the same hearing, Gary Okino, a City Councilmember said:
"The people voted in 1998 to keep marriage between one man and one woman."
Alan 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
The 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.
The following information sources were used to prepare and update the above
essay. The hyperlinks are not necessarily still active today.