Constitutional amendments can be quite controversial, even risky. There is a reason why the bar is set high for changing foundational documents. However, the two that voters will confront between now and Election Day, Nov. 5, do not fall into that category. Both should be easy to move along with a “yes” vote. (And remember, blank votes here count as “no,” so it’s crucial to cast in the affirmative.)
One of the questions is a simple effort to make the process of appointing judges consistent across all court levels. That seems to make sense on its face, so much so that no testimony was submitted when the amendment was proposed in the last legislative session.
But the other amendment question concerns same-sex marriage, and it did have a long and contentious history before marriage equality was enacted in 2013. Over the course of the decade, the marriage right has become broadly accepted, but the possibility remains that elected lawmakers could reverse it. This amendment’s passage would make the right much more secure.
The two questions on the ballot:
>> “Shall the state constitution be amended to repeal the Legislature’s authority to reserve marriage to opposite-sex couples?”
>> “Shall the Constitution of the State of Hawaii be amended to make the appointment and confirmation process for district court judges the same as the appointment and confirmation process for supreme court justices and intermediate court of appeals and circuit court judges?”
That second question goes on to define the process. It starts at all levels with the Judicial Selection Commission coming up with a list of nominees, and the state Senate having a chance to consent, or to reject the final appointment. Current law has Hawaii’s chief justice making the initial nomination to the District Court rather than the governor, who makes that selection for all other courts.
Further, if the chief justice fails to tap the District Court nominee within 30 days, the commission now makes the pick and gives the Senate the chance to confirm or reject. For all other courts, if the Senate does not act, the nominee is found to have the Senate’s consent. If senators don’t act on a District Court selection, the commission makes the final selection.
Lawmakers rightly argue that having all judicial appointments be handled the same is more efficient, eliminating the commission’s role in making a final selection.
On the other amendment question: The pathway of marriage equality has more twists and turns.
In 1991 Hawaii became the first state to consider a legal challenge to bans on same-sex marriage. Two years later, the Hawaii Supreme Court ruled that, unless there were “compelling state interests,” the ban amounted to discrimination on the basis of sex. The trial court in 1996 ruled that the state must issue marriage licenses to same-sex couples seeking them.
Meanwhile, though, there was a state constitutional amendment, ratified in 1998, to give lawmakers the power to enact a ban on same-sex marriage. This authority for a future ban is what Hawaii voters this year have a chance to repeal — and they’re urged to do so.
Of course, views of marriage equality continued to evolve nationally as well as locally, and in 2013, the state Legislature convened a special session to consider legalizing same-sex marriage by statute. There was still public outcry from opponents, but legislators did enact the new law.
Marriage equality remains the law of the land, though an exemption allows for refusal to perform or recognize same-sex marriage on the basis of religious beliefs. Democracy has to make accommodations.
But what it should not accommodate is a reversal of rights that have been lawfully accorded, in this case to same-sex couples who want to marry. A “yes” vote makes it clear in the state’s Constitution that a just society applies equality to a right as foundational as marriage.
