Saturday, October 24, 1998

S P E C I A L _ R E P O R T

Framers of
Hawaii Constitution
did envision marriage
as a civil right
unfettered by sex

By Robert J. Morris
Special to the Star-Bulletin


The state Supreme Court has interpreted state law and the constitution in a way never envisioned by its framers."

So say recent letters to the editor, debates and propaganda, all repeating once more a false refrain that has been chanted with numbing frequency ever since the same-sex marriage debate began. The authors of these statements purport to know the intent of the Constitution's framers.

It is clear they have not done their homework. Among them are Nelson Doi, a delegate to the 1950 Constitutional Convention, who has been appearing in full-page ads stating that the Con Con never intended the definition of marriage to be expanded.

Doi misremembers both the spirit and the letter of 1950.

In 1993, the Hawaii Supreme Court, in the same-sex marriage case of Baehr vs. Lewin, held that unless the state could show a "compelling" interest for doing so, its denial of a marriage license to two people of the same sex or gender violated the state Constitution's numerous guarantees of equality. A denial of the right to marry on account of sex was a violation of Equal Protection.

In 1950, when our first Con Con was drafting our state Constitution, the Committee of the Whole (meaning all the delegates to the convention) convened to consider reports and recommendations of the Committee on the Bill of Rights.

Among them was Committee Proposal No. 3. They reviewed the proposed language that would guarantee equality of rights and privileges such as life, liberty and property, according to due process and equal protection. This included the right to marry as a civil right.

The proposal declared that no person could be deprived of civil rights on account of religious principles, race, ancestry, national origin or sex.

In its Report No. 5, the Committee of the Whole summarized its findings with these words: "(A) denial of the right to marry on account of sex, in the light of conditions as they have existed and now exist in this jurisdiction, would be a violation of (equal protection, rights and privileges)."

This is exactly what the Hawaii Supreme Court would hold 43 years later in Baehr vs. Lewin. Therefore this incessant refrain that "the state Supreme Court has interpreted state law and the Constitution in a way never envisioned by its framers" is false.

An amendment to Report No. 5, which was offered by Doi himself, moved to insert these words into the report: "The Committee is unanimously agreed that the right to marry is a civil right."

The point behind this crucial statement came out of floor debates that recognized the fundamental necessity of total equality.

In a discussion about the new Constitution's prohibition of any ban against interracial marriages, delegate Kellerman noted that the statute authorizing the 1950 Con Con provided "the Constitution must be republican in form and make no distinction in civil or political rights on account of race, color or sex."

The framers of 1950 did a lot of thinking about gender and marriage. They wanted to do away with all prohibitions against miscegenation or interracial marriage.

The reality in Hawaii was that many married couples were interracial. As a territory, Hawaii labored under the Organic Act, which prohibited women from serving on juries. This was repugnant to the framers of 1950, who wanted to ensure perfect equality of marriage and gender rights in the new state.

They also wanted to ensure that the race wars that were engulfing the mainland did not take root in Hawaii. In order to ensure gender equality, they specifically desexed the language of the new Constitution. Wherever words like "person," "people" and "he" were to appear in its text, they required the interpretation to mean and include members of both sexes.

These were hard undertakings during the difficult times in which the 1950 Con Con met. It was the dawn of the new Atomic Age, the aftermath of World War II and the upsurge of the Korean War.

Harry Truman was president. Senator McCarthy was holding his anti-communist hearings in Washington, and Congress was giving him free reign. Before Hawaii would finally achieve statehood in 1959, the Cold War and the civil rights clashes in the South would gather tremendous force.

It was not a happy time for civil rights, and claims by traditionally secondary citizens (like women and blacks) were greeted with disgust and fear as "special rights" and "exaggerated claims for civil rights." Nevertheless, the framers of 1950 pressed on.

They recognized that the preservation of these rights and privileges was not "special" but basic, and their safety lay mainly with the judiciary or the courts. It is that coordinate and equal branch of government, they knew, "which is entrusted with the safeguarding of our civil liberties."

Based on the record of the 1950 Con Con and the meaning of living under a constitution, not only was the Hawaii Supreme Court's same-sex marriage decision of 1993 impeccably correct, but it was also made by the correct decision maker -- the Hawaii Supreme Court.

More than that, the decision made by the trial court two years ago, that there was no credible evidence to show that the state has a "compelling interest" in denying marriage licenses to same-sex couples, was also impeccably correct for the same reasons.

Robert J. Morris is a Honolulu attorney.

Same-sex marriage:
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