View Point

By James Hochberg

Saturday, February 22, 1997

Traditional marriage
still on rocks

If Sens. Avery Chumbley and Matt Matsunaga are dressed in their proposed constitutional amendment to preserve marriage as a union between only one man and one woman, the senators are naked.

In a Jan. 24 press release from the Senate Judiciary Committee, the two co-chairmen stated that "SB 1800 provides the people of Hawaii the opportunity to vote on a constitutional amendment which would preserve marriage to the union between one man and one woman."

They also stated that "SB 1800 also provides that the state will ensure that laws will not deprive any person of civil rights on the basis of sex."

Finally, they stated that "this approach, using a fair constitutional amendment, will address both the community's concerns and the points of law expressed by the recent court decision in the Baehr case."

SB 1800 is purported to be the answer to the people's concerns about the same-sex marriage case, pending before the Hawaii Supreme Court. The bill was supposed to create a constitutional amendment preserving marriage to heterosexual couples.

This is what the people demanded of the Legislature in the last election. However, SB 1800 is a sham following in the ghostly footsteps of Sen. Rey Graulty.

On Feb. 3, the committee heard testimony on a long list of marital rights bills. After the full day's testimony, Chumbley and Matsunaga read prepared statements. They said the committee decided to replace HB 117 (which provided for a constitutional amendment to limit marriage to a man and a woman and take the issue away from the Hawaii Supreme Court) with SB 1800.

Although the first paragraph of SB 1800 states the necessity and appropriateness of allowing the people of Hawaii to constitutionally reserve the institution of marriage to a union between one man and one woman, the balance of the three-page bill makes it clear that the committee is playing "smoke and mirrors."

SB 1800 has three problems:

There is no preservation of marriage for heterosexual couples. At best, the text instructs the court to keep out of the legislative definition of marriage, as it might be determined from time to time. At worst, the Hawaii Supreme Court is included in the definition of "the state," which is exercising its authority to redefine marriage.

Even if "the state" is limited to the legislative body, the people of Hawaii do not trust legislators on this issue. The public demands to solve the marriage question by placing the decision into the Constitution of the State of Hawaii with the inherent longevity of an amendment.

The condition that the amendment be effective only if no one is deprived of civil rights simply invites litigation and starts the Baehr v. Miike case all over again.

What this bill does is arm the high court with the authority to strike the constitutional amendment by finding that the amendment deprives homosexuals of meaningful access to the courts. The Senate Judiciary Committee pretends to preserve "marriage," but opens the door for the Supreme Court once again.

The real substance of this bill is the often-repeated chorus that those who do not desire to grant marriage benefits to homosexuals do so out of animus or hostility. This is unquestionably wrong.

The plain truth is that caring, compassionate and loving people, absent any hostility toward people who engage in homosexual behavior, believe that homosexuals should not be given marriage benefits because homosexual behavior is morally wrong. Consequently, the government should no more validate homosexuality than robbery.

The Senate might disagree, but to segregate all those caring, compassionate and loving people into a group which might also contain those who genuinely have animus against homosexuals (a very small group) is nothing more than propaganda which should not be part of the Senate's law-making actions.

James Hochberg, a Honolulu attorney, was a member
of the Governor's Commission on Sexual Orientation and the Law.
Opinions in View Point columns are the authors' and are
not necessarily shared by the Star-Bulletin.

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