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Same-sex marriages in Hawaii

 1997: Legislative activity

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Legislative Activity, 1997 Session

At the opening of the 1997 session on 1997-JAN-17, Speaker of the House Joe Souki said that:

"The House will propose a constitutional amendment to permit the Legislature, rather than the courts to resolve this [marriage] issue...At the same time, certain benefits and rights will be made available to couples who are legally prohibited from marrying one another."

On 1996-JAN-21, the Judiciary Committee voted 12-1 in favor of passing bill HB 117 to the house. It is titled "A Bill for an act Proposing a Constitutional Amendment Relating to Marriage." It would amend the constitution of Hawaii to define marriage as involving one man and one woman. During hearings, Jon Van Dyke, a law professor from the University of Hawaii testified that a constitutional amendment that denied a specific benefit to a specific group of adults might be itself unconstitutional.

This proposed constitutional amendment is ironic. A main purpose of any constitution in a democracy is to protect the rights of minorities from the oppression of the majority. This amendment would oppress a minority who want nothing more than to have the same rights as everyone else.

A lawyer testified to the committee that they must "legislate and therefore impose morality on the public." This was argued on the basis that "gays and lesbians are immoral" and that the senators should only enact laws based on "morality." In 1997-MAR this same lawyer, representing the owners of a number of "hostess" bars, told senators that they cannot "legislate their morality on the public." Some hostess bars are sites for heterosexual prostitution and drug dealing.

The Committee rejected the argument of the Hawaii Supreme Court that the existing marriage laws sexually discriminated against gays and lesbians. They commented that the "judicial branch of government has continued to assert an interpretation of our State Constitution which is both unprecedented in judicial history and clearly contradictory to the intent of the framers of our Constitution." The committee vote was 9 in favor, 3 in favor with reservation and 1 opposed.

The Committee also approved bill HB118 "A Bill for an Act Relating to Unmarried Couples," which would allow unmarried adults to have their relationship recognized. Their report stated:

"Your Committee finds that when illness, death or financial reverses strike only one party to such a relationship these individuals lack the protection that long-established legal doctrines afford married couples under the same circumstances."

"Your Committee finds that it is appropriate to address the concerns of those couples by creating a legal structure for reciprocal beneficiaries."

"Because this structure is not available to those couples who can legally marry, it does not threaten to undermine marriage between couples of the opposite sex."

"Your Committee believes that this measure, in providing for the right to hospital visitation and the right to make health care decisions for the other party, the right to hold property as tenants by the entireties, inheritance rights, and the right to sue for wrongful death, will be of substantial benefit to many people in our community."

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At the committee hearings:

bulletUniversity of Hawai`i law Professor has said a state constitutional amendment denying a benefit for a specific group of people could be overturned by the U.S. Supreme Court.

bulletJanice Judd of the group "Stop Promoting Homosexuality" said that "Some countries cut off their [Gay] heads. We don't do that. What more do they want?"

The Committee vote was 4 in favor, 9 in favor with reservation and 0 opposed.

The House proposed a constitution amendment that would read:

"Statutes, regulations, laws, rules, orders, decrees and legal doctrines that define or regulate marriage, the parties to marriage, or the benefits of marriage shall not be deemed in violation of this section of any other section of this Constitution by virtue of a limitation of the marriage relationship to the union of only one man and one woman."

The House has proposed a companion "reciprocal beneficiaries" bill which would guarantee gay and lesbian couples four specific rights: hospital visitation, joint property ownership, inheritance rights and the right to sue for wrongful death.

The Senate bill proposes a constitution amendment that would read:

"The state shall have the power to regulate and define the institution of marriage, including the reservation of marriage to couples of the opposite sex; provided that this reservation shall be effective only if the laws of the state ensure that the application of this reservation does not deprive any person of civil rights on the basis of sex."

This would give about 200 state rights and benefits to gay and lesbian couples. They would include state worker's health and death benefits accruing to a "life partner," the ability to file joint state tax returns, workers' compensation benefits and criminal victims' rights, family leave, and other rights.

A Joint Conference Committee of the House and Senate met on 1997-MAR-3 to promote their own versions of the bills.

On about April Fools' Day, the House offered a new constitutional amendment:

"The Legislature shall have the power to reserve the legal recognition of the marriage relationship, and its attendant rights, benefits and burdens to couples of the opposite sex."

They would also add one more protection for gay & lesbian couples to their companion bill: they would require health insurers to offer family coverage for "reciprocal beneficiaries." Reciprocal beneficiaries are couples--including gay and lesbian couples--who are not permitted to marry.

On APR-9 the House's latest proposed constitutional amendment was:

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

But the House refused to discuss a compromise on the "Reciprocal Beneficiaries" bill.

Very early in the morning of APR-12, the talks collapsed. The self-imposed deadline of APR-11 had passed.

During the evening of March 16, they met again and allegedly reached a compromise. They agreed:

bulletto place a Constitutional Amendment on the 1998-NOV ballot:

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

bulletto vote on a second bill to give reciprocal beneficiaries a few of the privileges that are currently restricted to married couples:
bulletJoint medical insurance coverage, for state employees only, and only guaranteed for a 2 year trial period
bulletHospital visitation rights, mental health commitment approvals and notifications, family and funeral leave.
bulletJoint property rights.
bulletInheritance and other survivorship rights.
bulletLegal standing for wrongful death, victims' rights, domestic violence family status.

They total at least 50 out of the hundreds of state privileges granted to opposite sex married couples. The Senate passed bill HB-118 by a vote of 22 to 3 on APR-21 which authorized the privileges; the House passed it on APR-29. This "Reciprocal beneficiary Law" took effect on 1997-JUL-1. As of 1997-AUG-13, 172 Hawaiian couples had registered under the act.

The House and Senate also passed bill HB-117 proposing the amendment to the constitution.

Groups that oppose equal access to marriage for all often quote polls that show that 70% of the people are opposed to same-gender marriage. What is rarely discussed is the only poll that asked whether the Constitution of Hawaii should be changed to prevent same-gender couples from marrying. The Honolulu Star-Bulletin Spring conducted a poll in early 1996 which showed that 51% of the public are in favor of the amendment. Since the margin of error is plus or minus 5%, it appeared to be an even split.

Copyright © 1996 to 2009 by Ontario Consultants on Religious Tolerance
Originally written: 1997-JUL-11
Latest update and review: 2013-NOV-15
Author: B.A. Robinson

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