State Constitution denies same-sex couples right to marry


POSTED: Monday, May 17, 2010

Francis Oda's May 13 letter to the editor is, in Mr. Oda's own words, “;disingenuous”; in perpetuating the falsehood that “;HB 444 is about ... same-sex marriage”; because “;[a]ll who know the details of this issue understand that there will be a suit contending unequal protection under the law and asking that civil unions be made marriages.

“;This occurred in Connecticut with essentially an identical civil unions law and based on a Connecticut constitution whose wording regarding equal protection is identical to Hawaii's. This caused a court-mandated change of civil unions into same-sex marriages.”;

The truth is that if House Bill 444 were to become law, thereby establishing the institution of “;civil unions”; (accessible to both same-sex and opposite-sex couples), the Hawaii courts could NOT adopt the reasoning of the Connecticut Supreme Court's 2008 Kerrigan decision and hold that same-sex partners to a civil union are entitled to the status of marriage pursuant to the equal protection clause of the Hawaii Constitution.

In Kerrigan, the Connecticut Supreme Court ruled that: (1) “;the institution of marriage carried with it a status and significance that the classification of civil unions did not embody”;; (2) limiting same-sex couples to civil unions while opposite-sex couples were entitled to marry constituted discrimination on the basis of sexual orientation; (3) such discrimination violated the equal protection clause of the Connecticut constitution; and, therefore; (4) same-sex couples were constitutionally entitled to marry.

In stark contrast to Connecticut, the Hawaii electorate, in 1998, amended the Hawaii Constitution by adding article I, section 23, which provides that “;(t)he legislature shall have the power to reserve marriage to opposite-sex couples,”; to the Constitution's Bill of Rights.

Before the ratification of article I, section 23, the Hawaii courts could have followed the reasoning of Kerrigan, in reliance on the state Constitution's equal protection clause. Now they cannot possibly do so.

Article I, section 23 gives the Legislature the unqualified power to deny same-sex couples access to marriage regardless of what the equal protection clause might otherwise require in the absence of article I, section 23. The Connecticut constitution gives its legislature no such power. Section 1 of HB 444 expressly states that, “;(b)y establishing the status of civil unions in our state, it is not the Legislature's intent to revise the definition or eligibility requirements of marriage under chapter 572, Hawaii Revised Statutes.”;

Therefore, civil unions are not marriages, and same-sex couples in Hawaii have no state constitutional right to marry.

The Hawaii Constitution forbids the Hawaii courts from ruling otherwise.

Steven H. Levinson is a retired Hawaii Supreme Court associate justice and a current board member of the ACLU of Hawaii.