Wednesday, October 7, 1998

Same-sex vote
won’t answer
all questions

Some say an amendment
would not require
a new law

By Craig Gima


You could call it the same-sex spin.

It's what happens when you ask a simple question about what will happen if you vote yes or no on the same-sex marriage amendment on the November ballot.

The question on the ballot reads, "Shall the Constitution of the state of Hawaii be amended to specify that the Legislature shall have the power to reserve marriage to opposite-sex couples?"

A key legislator, a constitutional law professor and those in favor of the amendment say that if the yes vote wins, the Constitution will be amended to define marriage as between a man and a woman. The Legislature, they say, would not have to pass a new law.

But the attorney who brought the same-sex marriage issue to the courts, Dan Foley, says that is not true.

Foley believes the Legislature will have to pass a new law in 1999. He said the Legislature can also change its mind and allow same-sex marriage. He also said that if the same-sex question passes, it will lead to more litigation.

Jennifer Diesman, the spokeswoman for the group Save Traditional Marriage, disagrees. She said if the amendment passes, the state Supreme Court will rule against three gay and lesbian couples who filed a lawsuit seeking the right to get married, and the issue will eventually be settled to restrict marriage between opposite-sex couples.

"The amendment reconciles who has the authority to determine marriage -- the court or the Legislature. If this amendment passes, it would be the Legislature," Diesman said.

She accused opponents of the ballot measure of trying to confuse the issue for voters.

But Foley said the judge in the same-sex marriage case threw out a 1994 law limiting marriage to opposite-sex couples, so no law exists that defines marriage as between a man and a woman. He also believes the amendment is written in a way that requires further action by the Legislature.

Matt Matsunaga (D-Palolo), Senate Judiciary Committee co-chairman, believes the amendment would not require the Legislature to pass a new law.

However, if the Supreme Court rules that the 1994 law is invalid and sends the issue back to the Legislature, Matsunaga said he hasn't decided whether he will support a new effort to pass a law limiting marriage to opposite-sex couples.

"I'm not sure at this point," Matsunaga said. "We'd have to take a look at what the vote is. I'm certainly not going to devote the whole session to the one issue again. I think people have spent enough time at the Legislature on this issue."

Constitutional law professor Jon Van Dyke agrees with Matsunaga that if the amendment passes, the Legislature would not have to take up the issue next year.

"The Legislature wanted to limit marriage to opposite-sex couples through this initiative. The language is prety clear that that's what they wanted to do," Van Dyke said.

"It's more than a message (to the Supreme Court). It's an amendment to the Constitution.

"It's pretty strong stuff," he added.

But Van Dyke also agrees with Foley that the amendment could lead to further court challenges of a Supreme Court decision against same-sex marriage.

Neither Matsunaga nor Van Dyke support passage of the amendment.

If the Supreme Court denies marriage rights for his clients, Foley said he will file a lawsuit asking for domestic partnership rights under the equal protection clause of the state Constitution.

Foley also believes passage of the amendment will allow him to appeal the issue to federal court.

"The only way to end the debate is to vote no," Foley said. "Then the issue is resolved, not to everyone's satisfaction, but it would be resolved."

What your vote does

Here's what will happen if you vote yes or no on Nov. 3 on the following Constitution amendment proposal:

"Shall the Constitution of the state of Hawaii be amended to specify that the Legislature shall have the power to reserve marriage to opposite-sex couples?"

Yes: Means that the Constitution is amended so lawmakers have the power to forbid same-sex marriage.

No: The Constitution remains the same, and the issue would be decided in the courts.

Bullet Ratification: Passage requires more than 50 percent of total votes cast. BLANK and SPOILED ballots count as "No" votes.

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