An effort to repeal the Legislature’s authority to limit marriage to opposite-sex couples continues to move forward as House Bill 2802 passed out of the Senate Ways and Means Committee on Thursday.
The bill would act as the Legislature’s opportunity to put the issue to voters on the Nov. 5 ballot once again, or see the window of opportunity close for another two years when the political landscape could change, starting with November’s local and national elections.
Section 23, Article I of the Hawaii State Constitution is the only provision in the Bill of Rights adopted to take away rights rather than recognize or grant rights, said Dan Foley — who retired from Hawaii’s Intermediate Court of Appeals and advocates for same-sex marriage in Hawaii.
Same-sex marriage has been legal for 10 years and Hawaii is the 15th state to enact a law after former Gov. Neil Abercrombie signed the Hawaii Marriage Equality
Act on Nov. 13, 2013.
“By this time, public
opinion had changed from opposition to support of same-sex marriage,” Foley said.
Josh Frost, policy assistant at American Civil Liberties Union Hawaii, said in written testimony that the state Supreme Court, in the 1993 Baehr v. Lewin case, ruled that denying marriage licenses to same-sex couples was sex discrimination under the state Constitution, unless the state would prove a compelling interest.
The court did not immediately order the state to begin issuing marriage licenses to same-sex couples, and remanded the case to the trial court and ordered the state to justify its position, Frost said.
In 2015, the U.S. Supreme Court’s decision in Obergefell v. Hodges affirmed that the right to marry is constitutionally protected for same-sex couples under both the Due Process Clause and Equal Protection Clause of the Fourteenth Amendment.
“Given the U.S. Supreme Court’s rollback of abortion protections and broader civil rights and liberties, and dicta suggesting the
potential overturning of Obergefell v. Hodges, we believe Hawaii must take proactive steps to defend the right to marry for same-sex couples,” Frost said.
However, some people such as Donald Carroll submitted written testimony in opposition to HB 2802.
“The 2010 amendment to Article 1, Section 23 is clear that a valid marriage shall only be between a man and a woman as husband and wife,” Carroll wrote.
Others such as Foley
describe the current article as “discriminatory and
unconstitutional.”
“It is time for the Legislature to finish the job,” he said. “Remove this discriminatory and unconstitutional provision from our Bill of Rights.”
Jeck Navarrete said in written testimony that LGBTQ families across the state deserve “dignity and respect – and the certainty that no matter what happens in the future, whether in the U.S. Supreme Court or in our Legislature, their marriages and families are protected.”
Osa Tui Jr., president of the Hawaii State Teachers Association, said in written testimony that HSTA seeks to “promote human and civil rights to support and nurture diversity in our multifaceted community,” and that the bill would support their mission statement.
“Children of same-sex couples wishing to marry could finally see their parents rightfully married like opposite-sex couples could be,” he said. “Likewise, students then who did not and students now who do not see themselves seeking an opposite-sex marriage later in life have the option to seek a legally recognized marriage when the time comes.”
