Section 23, Article I of the Hawaii Constitution is the only provision in our Bill of Rights adopted to take away rights rather than recognize or grant rights: “The legislature shall have the power to reserve marriage to opposite-sex couples.” It’s the only provision in our state Constitution designed and adopted to target and discriminate against a minority of our population, in this case, members of our LGBTQ community.
And, it is directly contrary to the ruling of the U.S. Supreme Court in Obergefell v. Hodges, 576 U.S. 644 (2015) that overturned state constitutional provisions and statutes that prohibited same-sex marriage as a violation of the equal protection clause of the 14th Amendment to the United States Constitution, exactly what Section 23 was proposed and adopted to do and did.
I was the attorney for the same-sex couples in Baehr v. Lewin, 74 Hawaii 530 (1993), where the Hawaii Supreme Court ruled it was sex discrimination under our state Constitution Bill of Rights to deny same-sex couples marriage licenses unless the state could demonstrate a compelling state interest to justify its discrimination against the couples.
I must admit that I was naīve not to have anticipated the backlash that followed the decision. It was severe, sustained and painful. Even after state Circuit Judge Kevin Chang’s Dec. 3, 1996, decision (following a two-week trial with testimony from national and local experts in psychiatry, psychology, sociology and pediatrics) ruling the state failed to prove a compelling state interest to justify its sex discrimination in denying marriage licenses to same-sex couples, the backlash continued, resulting in Section 23, Article I.
Section 23 was proposed by the state Legislature in its 1997 session, despite the comprehensive findings of Judge Chang that the overwhelming evidence at trial in the case demonstrated that same-sex marriage would benefit the families of same-sex marriage and have no adverse impact on the families of opposite-sex marriages.
Why did the Legislature do this in 1997 when it had previously declined to do so? Some of its members had been targeted and defeated in the 1996 primary and general elections for refusing to support a constitutional amendment banning same-sex marriage.
Those who survived in 1996 were told they would be next in 1998 if they did not support the proposed amendment that polls showed was supported by a 2 to 1 margin of the voters. The cry of those opposing same-sex marriage was “Let the people vote!”
History has vindicated our Supreme Court and Judge Chang. Same-sex marriage exists in all 50 states and in over 30 countries with no adverse impact on opposite-sex marriages and families, and only positive impact on same-sex marriages and families. The United States Supreme Court has recognized this in Obergefell, and the U.S. Congress and president have done so as well in enacting the Respect for Marriage Act in 2022 that requires federal, state and local governments to recognize and respect same-sex marriage.
Hawaii’s Legislature in 2013 finally enacted a law allowing same-sex couples to marry in Hawaii, becoming the 15th state to do so. By this time, public opinion had changed from opposition to support of same-sex marriage; the U.S. Supreme Court had ruled in in United States v. Windsor, 570 U.S. 744 (2013) that the federal 1996 Defense of Marriage Act rejecting same-sex marriage was unconstitutional (enacted in response to Baehr v. Lewin, passed and signed into law during Hawaii’s September 1996 same-sex marriage trial before Judge Chang); and President Barack Obama and Vice President Joe Biden had come out in support of same-sex marriage.
It is time for the Legislature to finish the job. Remove this discriminatory and unconstitutional provision from our Bill of Rights. Several bills have been introduced in this legislative session proposing a constitutional amendment to do just that. It’s time to let the people vote once again on this issue, this time for civil rights.
Daniel Foley is a retired Hawaii Intermediate Court of Appeals judge, and was the attorney representing the same-sex couples in Baehr v. Lewin.
