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Same-sex marriages (SSM) & civil unions in Hawaii

2013-NOV:
Bill SB1 passes second reading in the full House.
Rep. McDermott's interfering lawsuit hits a snag.
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This topic is a continuation from the previous essay

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2013-NOV-06: Bill SB1 passed its second reading in the full House:

Vote on the bill was delayed as 13 additional amendments were proposed from the floor. All of them failed on a voice vote.

The full House then voted on bill SB1, and passed it by a large margin: 30 in favor, 18 opposed, and 3 excused. In favor were 29 Democrats and only one Republican. Opposed were 12 Democrats, and the remaining 6 Republicans. The third and final reading was scheduled for a session on Friday, NOV-08, starting at 10:00 hrs Hawaiian time. 1 With such solid conviction for and against the bill by members of the House, there was an expectation that the final vote -- scheduled for NOV-08 -- would differ little from the second reading vote.

Speaker of the House, Takashi Ohno (D) said:

"There were very strong feelings on both sides -- one motivated to delay the bill, one to pass the bill -- and we respect both sides. But I'm glad that finally those who favored the bill prevailed. ... Having a large crowd does not necessarily indicate the merits of the measure, because it is a civil rights issue of providing rights to a minority."

House Majority Leader Scott Saiki (D) said:

"I think that the vote tonight showed that there is sufficient support for passage on Friday. What was made clear tonight, through all of the procedural votes, was that members had basically made up their mind. Vote counts were consistent, whether it was for procedural motion or for the bill itself."

House Minority Floor leader, Representative Beth Fukumoto (R) said that process was flawed:

"This was so rushed and the public wasn't heard -- not fully. It was an unfair, broken process. It was transparent because we were able to see just how bad it was, but it was really bad and I'm disappointed that we rushed this through."

Representative Richard Fale (R) agreed:

"It's definitely very evident that the historic turnout at the Senate Bill 1's hearing by the people of the state of Hawaii had no impact on the direction that the bill was headed. This certainly is a dog and pony show and that the destiny of the bill has been pre-set. The deals have been made, the arms have been twisted -- until there's no turning back."

We can find no evidence that "deals have been made" or "arms have been twisted." Representatives from both parties appear to have independently made up their own minds whether to support or oppose SB1.

All, or almost all of the representatives fell into one of two groups:

  • A majority who viewed SB1 as a bill to achieve marriage equality in the state and allow loving, committed same-sex couples to have the same basic civil rights as opposite-sex couples -- including the right to marry the person that they love and to whom they have committed themselves for life. Holding these beliefs on ideological grounds, it would have been most unlikely that very many of them would change their position during the remaining days of the legislative process.

  • A minority who view same-gender sexual behavior as immoral, and believe that God has defined marriage as restricted to one woman and one man. Many regard same-sex marriage as a threat to traditional marriage. Holding these beliefs -- largely on religious grounds -- it would have been most unlikely that very many of them would change.

At times, emotions among the public ran very high at the capitol. There was some concern by security officials that violence might break out as the pro and anti SSM groups gathered there in close proximity. Barriers were installed to keep the two groups separated.

Pro-marriage equality groups have a license to assemble at the capitol on NOV-08, the date of the Third Reading and NOV-12, the date when the Senate will review the bill as revised by the House. In the spirit of Aloha, as a good will gesture, the pro-equality groups offered to split the space with those opposed to the bill. 2

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2013-NOV-07: Hawaii News Now conducts informal poll on SSM:

The poll asked: "Do you support same-sex marriage in Hawaii?" By the next morning, they had received more than 100,000 votes! However, the results are not necessarily indicitive of the general Hawaiian population, because the participants were not necessarily a random sampling of Hawaiians. Results were:

  • In favor of SSM: 62%

  • Opposed to SSM: 38% 3

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2013-NOV-08: Lawsuit to prevent the Legislature from legalizing SSM hits a snag:

Earlier, Representative Bob McDermott (R) had filed a lawsuit in Hawaii's First Circuit Court. It asked the court to prohibit the Legislature from giving further consideration to SB1. This would prevent the Hawaiian legislature from legalizing same-sex marriage.

He argued that a 1998 referendum had amended the state Constitution to give the Legislature the power to restrict marriages to one woman and one man, but not to widen marriage to include same-sex couples. The amendment read:

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

That amendment was approved by the voters, with about 69% in favor and 29% opposed. Fifteen years ago, public opinion was very strongly opposed to same-sex marriage. Support has risen, and opposition has declined, greatly since then. The legislature later invoked this amendment and amended the marriage law to ban same-sex marriage in the state.

Rep. McDermott said:

"I was there in 1998 as a member of the State House -- a claim few in office today can make. The people thought they were answering the question once and for all. However, the horrible language that was foisted upon the people by the Senate Judiciary Committee at the time left us with no choice but to accept the amendment. This explains the mess we are in today."

However, Governor Abercrombie, Attorney General Louie, and many legislators interpret the wording of the plebiscite as allowing the Legislature to make further changes to the marriage act. If the amendment gave them the power to ban SSM, presumably the Legislature could decide to repeal that amendment, They could then pass amendments to the marriage laws that would allow both same-sex and opposite-sex couples to marry.

The U.S. Constitution assigns certain areas of authority to the Federal Government. But those areas not mentioned in the Constitution are automatically reserved for the individual states or for the people. Marriage is not mentioned in the Constitution; therefore is a state responsibility. The U.S. Supreme Court decision on 2013-JUN-26 in the case Windsor v. United States which declared part of the Defense of Marriage Act (DOMA) to be unconstitutional, reinforced this state right.

All states have marriage acts. Among other factors, they all specify that a person must be of a certain minimum age before they can marry. The states certainly have the authority to change this minimum age. Thus it can be argued that states also have the authority to decide what gender combination(s) a couple can have and still be allowed to marry. So it would seem that unless the state Constitution specifically bans same-sex marriage, any state legislature can pass legislation to enable marriage equality.

Rep. McDermott had asked the circuit court judge to issue a temporary restraining order to prevent the Legislature from proceeding further with SB1.

His lawsuit was dealt a major blow when Circuit Court Judge Karl Sakamoto refused to issue such an order. However, Judge Sakamoto did acknowledge that the wording of the amendment might have led many voters to think it only gave the Legislature the authority to ban SSM, not to change the definition of marriage in other ways. He ruled that Rep. McDermott could return to court after SB1 is dealt with by the Legislature to argue his case further. 4

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This topic continues in the next essay

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References used:

The following information source was used to prepare and update the above essay. The hyperlink is not necessarily still active today.

  1. Mileka Lincoln, "House passes second reading of amended same-sex marriage bill," Hawaii News Now, 2013-NOV-06, at: http://www.hawaiinewsnow.com/
  2. "Same sex marriage supporters and opponents prepare for Friday's final House vote," KITV-TV video, 2013-NOV-08, at: http://www.kitv.com/
  3. "Do you support same-sex marriage in Hawaii?," Hawaii News Now, 2013-NOV-09, at: http://www.hawaiinewsnow.com/
  4. "Judge Refuses to Stop Hawaiian Same-Sex Marriage Bill From Becoming Law," Lez Get Real, 2013-NOV-08, at: http://lezgetreal.com/

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Copyright © 2013 by Ontario Consultants on Religious Tolerance
Originally posted: 2012-NOV-01
Latest update: 2013-NOV-10
Author: B.A. Robinson

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