Senate conferees, who got the proposal yesterday, said they'll need to study it. They said it may conflict with other constitutional provisions.
The House wants voters to approve a new section to the state Constitution that would declare that marriage licenses issued "solely to couples of the opposite sex shall be interpreted as consistent with all of the rights protected by the (Hawaii) Constitution."
In the earlier constitutional amendment it proposed, the House wanted marriage defined "as the legal association reserved exclusively for the lawful union of a man and a woman."
The latest initiative, which doesn't have the harsher language of the earlier proposal bottled up in the Senate, is already viewed as legally flawed by a leading constitutional law scholar.
"I don't think you can sugarcoat what they're trying to do," said University of Hawaii law professor Jon Van Dyke. "It's the same idea. It would have the same effect, although the language has been softened."
Van Dyke said if the proposal is adopted, it would likely be deemed in violation of the U.S. Constitution.
The U.S. Supreme Court, Van Dyke noted, is expected to uphold a ruling by the Colorado high court that quashed an initiative approved by Colorado voters that barred municipalities from passing laws prohibiting discrimination against gays and lesbians.
Senate conferees were concerned that it would violate equal-protection provisions in the Hawaii Constitution.
House Judiciary Chairman Terrance Tom told Senate conferees that the new proposed constitutional amendment cannot be considered to have the "offensive" language of the initial proposal.
"It doesn't turn people against people, it really doesn't," Tom insisted. "It merely confirms what we already have on the statutes."
The Rev. Marc Alexander, executive director of the Hawaii Catholic Conference and a leader of Hawaii's Future Today, the lobbying group opposed to same-sex marriages, described the House initiative unveiled by Tom as "a brilliant move."
Tom was also loudly applauded twice by most of the approximately 100 people, mainly opponents of same-sex unions, who had crowded into the hearing room during conference negotiations.
But Dan Foley, attorney for three homosexual couples who are suing the state because they were denied marriage licenses, said the new proposed constitutional amendment may backfire on the House and end up helping to legalize same-sex marriages. It doesn't provide the compelling state interest that the Hawaii Supreme Court said the state must show to prevent gay unions, Foley said.
The state high court has sent the case to Circuit Court for trial this summer.
Even if the new constitutional amendment proposed by the House were to pass the Legislature, it is highly unlikely that it would be put before voters this year.
That is because Gov. Ben Cayetano must be given 10 days' notice by the Legislature of its intention to act on proposed constitutional amendments. With a week left in the session, that would mean extending the session or calling a special session, which the House leadership opposes.
But the Legislature can get around the 10-day notice to the governor if it passes the proposed constitutional amendment by a simple majority in both houses in two successive sessions.
House Speaker Joe Souki said the plan is to put the proposed amendment change to voters in 1998 and still send "a strong message to the court this year."
In its new bill proposing a constitutional amendment, the House declared "that the question of whether or not to issue marriage licenses to couples of the same sex is a fundamental policy issue to be decided by the elected representatives of the people and not by judicial fiat."