Lawmakers
must define marriage,
attorney says

Gay-rights activists would
renew the marriage battle, but
Bronster and a Senate Judiciary
chief see no need

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By Mike Yuen
Star-Bulletin

The constitutional amendment barring same-sex marriages applies only prospectively, which means the Hawaii Supreme Court must uphold a lower court ruling allowing homosexual unions made before passage of the amendment, attorney Dan Foley says.

But Senate Judiciary Co-Chairman Matt Matsunaga disagrees.

On another point, Matsunaga believes Foley "has a good shot" contending that the amendment, while denying marriage licenses, did not overturn the high court's determination that gay couples cannot be denied the rights and benefits associated with marriage.

Matsunaga's remarks yesterday came shortly after Foley, representing the three gay couples who sued the state for the right to marry, filed a brief with the high court.

It was a rebuttal to the state's brief, which argued that the Supreme Court must overturn Circuit Judge Kevin Chang's decision in 1996 permitting same-sex marriages.

The state's rationale: The marriage amendment, overwhelmingly approved by voters in November, now gives the Legislature the authority to limit marriage to opposite-sex couples.

The high court had requested the briefs. The justices voted 4-1 in 1993 that denying marriage licenses to gay couples was gender discrimination; they sent the case back to the lower court.

Attorney General Margery Bronster said since the marriage amendment is now on the books, there is no need for the Legislature to again pass a statute defining marriage as a union between one man and one woman.

Foley contends it must. He says the future-tense wording -- "the Legislature shall have to power to reserve marriage to opposite-sex couples" -- told voters they were acting on a measure that was not retrospective.

In separate interviews, Matsunaga (D, Palolo) and Bronster said Foley's position is undercut by a "continuity of laws" provision in the state Constitution.

It allows amendments to be applied retrospectively if an existing law has not been struck down.

"Judge Chang's ruling was never finalized," said Matsunaga, also an attorney.

Foley acknowledged yesterday that the legislative strategy of gay-rights activists is to contend that lawmakers must approve a new marriage-definition law, and leverage the need for that measure's passage to the approval of a domestic partnerships bill, which would offer many of the rights and benefits of marriage without the title of marriage.

Matsunaga said Foley is on stronger ground when he contends that the marriage amendment doesn't prohibit homosexual couples from obtaining marriage-related rights.

Foley's brief correctly noted that the Senate never wanted to see "nontraditional couples" deprived of substantial economic marital rights, he added.

The Senate in 1997 successfully pushed a reciprocal beneficiaries measure for granting marriage-related benefits to gay and other nontraditional couples.

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