Constitutional amendment on marriage stirs questions

As soon as votes were cast during the 1998 election, there was confusion on precisely what happened. What did voters ban, same-sex marriage?

No, voters gave the state Legislature the power to make the rules.

While supporters said it banned gay marriage in the state, opponents said the amendment simply left the decision of who could get married up to the Legislature.

"Shall the Legislature have the power to reserve marriage to opposite-sex couples?" was the actual question.

Seventy percent of the voters said "yes," and it was assumed that was it.

Now that the Legislature is readying to go into an October special session to change state law to allow same-sex marriage, there is a question of exactly what "Yes" means.

Did Hawaii outlaw same-sex marriage or did Hawaii give the question to the Legislature?

Democratic state Rep. Sharon Har (Kapolei-Makakilo), who opposes same-sex marriage, said the state needs another constitutional amendment, not just a new law.

"Our Constitution expressly states that, ‘The Legislature shall have the power to reserve marriage to opposite sex couples.’ It does not say the Legislature can redefine marriage to include opposite-sex couples, or more than two people, or a person and some other plant, animal or object," said Har in response to an emailed question.

The power voters gave to the Legislature, Har said, is the power to allow opposite-sex couples to marry.

"The 1998 Constitutional Amendment did one thing and one thing only: It gave to the Legislature the power to reserve marriage to opposite-sex couples only. That’s it. It did not allow the Legislature to do anything beyond that," said Har, an attorney.

The argument quickly becomes complex. If on one level it is a fairly open-and-shut civil rights question of equality, Hawaii’s Constitution also makes it a question of government power.

The 1998 amendment vote came about because the Hawaii courts were hearing a case of gay couples saying they should be allowed to marry because of the Constitution’s equal protection clause.

The amendment giving the Legislature power to define marriage between a man and a woman removes the equal protection question, Har argued.

I asked retired Hawaii Intermediate Court of Appeals Chief Judge James Burns for his take on the argument.

He explained that before the amendment, there was a question whether denying same-sex couples to marry denied them equal protection.

"After the amendment, the state Legislature was empowered to limit marriages to opposite-sex couples. It did so.

"At that point, the equal protection challenge by those who wanted same-sex marriages had no merit," said Burns.

The amendment, Burns reasoned, "implicitly recognizes the Legislature’s authority to authorize same-sex marriages. It assumes that the Legislature otherwise has the power to authorize marriages to both same-sex and opposite-sex couples. It allows the Legislature ‘to reserve marriage to opposite-sex couples.’

"If the intent of amending the Constitution was to prohibit the Legislature from authorizing same-sex marriages, that is what the amendment should have said," Burns said.

Har had argued just the opposite, saying, "The language in the 1998 constitutional amendment is clear on its face and is unambiguous and therefore cannot be interpreted broadly."

If Har is successful, it would mean the Legislature would have to call for another public vote on a constitutional amendment, which same-sex marriage supporters say is not needed.

And that is why before legislators decide a black-and-white issue, the smart ones look at a lot of shades of gray.

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Richard Borreca writes on politics on Sundays, Tuesdays and Fridays. Reach him at rborreca@staradvertiser.com.