February 25, 2009

Editors are clearly not Constitutional scholars

Filed under: Hawaii State Politics — Doug @ 7:33 pm

The Advertiser editorial was a train wreck on Tuesday, especially as seen from a government process standpoint. It is as if the editorial were written by people completely unfamiliar with the Hawaii Constitution. I am not a lawyer, nor am I a Constitutional scholar per se, but I am familiar with the document enough to point out the obvious mistakes made in the editorial.

Instead of an effective bill advocating for equal rights for same-sex couples, the poorly worded [HB 444] equates civil unions with same-sex marriage: “Partners in civil unions,” it asserts, “shall have all the same rights, benefits, protections, and responsibilities under law … as are granted to spouses in a marriage.”

In doing so, it disregards the 1998 vote in which about 70 percent of voters passed a Constitutional amendment setting up a definition of marriage as between one man and one woman.

In its present form, HB 444 clearly is an end run around the 1998 vote.

I don’t get it. The editors want an “effective” bill that “advocat[es] for equal rights” but then immediately say that a bill that “equates civil unions with same-sex marriage” is the wrong solution. So, what non-”end run” method would the better solution to provide for equal rights be, then? A law that provides for civil union rights that are not the same as marriage? If the editors wish to argue that there are certain marriage rights that should not be afforded to same-sex couples they may, but then they can’t [logically] claim to support “equal rights.”

Many of the lawmakers who favor civil unions believe the public sentiment has changed in the past 10 years, and they may be right.

But the only way to test this theory is to ask Hawai’i voters directly, not simply ignore the earlier vote now on the books. Lawmakers should put the issue to another vote.

The Constitutional Amendment was not ignored! The legislature did exercise the power granted by that ConAm to define marriage as between one man and one woman.

But, leaving that point aside momentarily, Hawaii has no means to “put the issue to another vote” directly. i.e. Hawaii’s Constitution does not provide for referenda or for the initiative process. Hawaii voters may ratify proposed amendments to the Constitution, and, short of holding a ConCon (which Hawaii voters declined last year), another ConAm is the only means to put a policy question directly to voters.

Following Hawai’i's 1998 referendum [sic!], lawmakers attempted to equalize access to state services and protections through the “reciprocal beneficiaries” law, a codification of civil partnerships, including same-sex couples. But reciprocal beneficiaries do not have the same rights and protections under state law as married couples.

Sigh. Again, we have no referendum. Words matter. The editors need editors.

It would be far more just if elected leaders would recognize the importance of the 1998 vote. HB 444 should be recast to seek a new amendment that would take the question to the voters in 2010.

State lawmakers still haven’t fulfilled their constitutional duty to provide equal rights for same-sex couples under state law. But voters deserve a chance to re-examine the issue of civil unions, and to be asked which course to follow toward that goal.

Such an important and emotionally charged decision should not be imposed by a few — let the voters decide.

Since the passage of the 1998 ConAm, I believe it is (unfortunately) accurate to say that there is no longer a “constitutional duty” for legislators to provide equal rights for same-sex couples under state law. It’s quite the contrary actually. That 1998 ConAm essentially granted the legislature a new power to deny the benefits of marriage to same-sex couples—and the legislature quickly exercised that power.

Now, with no referendum or initiative possible, how would “such an important and emotionally charged issue” be decided by the voters? Like I wrote earlier (and the editors seem to have finally caught on to some extent), another ConAm would be the only way possible; ignoring the fact that the deadline to introduce such legislation has long since passed, and ignoring that the title of HB 444 [or any other active bill stil pending in either chamber] is incompatible with proposing a ConAm. But, if a ConAm were still possible, then the question becomes what specific proposal would be put to the voters for ratification in 2010? Seriously, there would need to be a relatively concise question to be printed on the ballot. What would that specific question be? Oh, and do keep in mind that a new ConAm would need to comport with the 1998 ConAm, because repealing or amending the 1998 ConAm would require a separate vote (and it would be a real mess in that situation if a change to the 1998 ConAm failed, yet a new ConAm was ratified).

This post is not as tightly argued as I would like, but I’ve got other things to attend to today. This is a good enough start, I reckon, but I apologize. And, yes, I see the irony in my scolding editors in an incompletely-edited post of my own. :)

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