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. :)


  1. Details, details. The Advertiser has never been particularly interested in accuracy (nor has the Star-Bulletin lately, for that matter).
    It’s all about being against this bill while trying to save face with some vague pronouncements of support for civil rights. No one who pays attention takes the Advertiser seriously.

    Comment by Maj. Flaw — February 25, 2009 @ 9:24 pm

  2. Dig the letter to the editor in today’s paper:

    Editorial clouds issue of 1998 vote, HB 444
    Your editorial (Feb. 24) made some serious misstatements regarding civil unions when it stated that HB 444 “disregards the 1998 vote” and “clearly is an end run around the 1998 vote.”

    Fact: In 1998, voters said yes to the following question: “Shall the Constitution of the state of Hawai’i be amended to specify that the Legislature shall have the power to reserve marriage to opposite-sex couples?” Consequently, Article 1, Section 23, providing that “the Legislature shall have the power to reserve marriage to opposite-sex couples,” was added to the Constitution.

    Fact: The 1998 amendment does not define marriage. Rather, the amendment confers the right to define marriage to the Legislature.

    Fact: Through HB 444, the Legislature is doing exactly what it is empowered and obligated to do to address the needs of same-sex couples. Through public hearings, legislators are educating themselves about the issue and considering whether Hawai’i's same-sex couples should be afforded civil unions — not marriage. Legislators will be informed that public opinion has changed. According to a 2008 Newsweek poll, 55 percent of America supports civil unions, and, in Hawai’i, a 2007 a QMark Research poll found that over 70 percent of those questioned agreed that committed couples should have the same rights regardless of sexual orientation.

    Unfortunately, your misstatements clouded the editorial. The Advertiser’s position on the substance of the issue — that civil unions are appropriate to ensure equality — was lost completely and thus did nothing to inform public discourse.

    Lois Perrin
    Legal director, ACLU of Hawaii

    Comment by Tony — February 26, 2009 @ 9:32 am

  3. Thanks, Doug. I was stunned by the illogic of the editorial. Hon-Ad editorials are rarely insightful (or incisive), but this one was both logically convoluted for the reasons you cite and politically dangerous. Should we really be voting on the civil rights of unpopular minorities?

    Just to let you know, when I made an argument similar to yours on the H-A forum, I had not yet read your post. So please don’t come after me for plagiarism!

    DOUG: No worries. Great minds think alike, etc.

    Comment by kolea — February 26, 2009 @ 12:35 pm

  4. Lois is correct except for one small point. The 1998 constitutional amendment conferred a power on the legislature that the Baehr v. Lewin case indicated our bill of rights limited the legislature from exercising. Legislatures have powers, citizens have rights. Legislatures don’t have rights since in our society, they represent the unlimited power of government (subject only to the rights and other limitations imposed upon them by the constitution). Rights discourse is so pervasive that sometimes we forget what power is and the purpose of rights.

    Comment by line of flight — February 26, 2009 @ 9:00 pm

  5. Isn’t it possible that the editors meant that the issue would go on the ballot in the form of a constitutional amendment, one patterned after the one in 1998? In other words, this one might say something like “Shall the Legislature have the authority to reserve civil unions, as defined in law, for same-sex couples?” And then the Legislature would define the rights of civil unions, separately from the marriage statutes. Hawaii has no referendum, but all kinds of questions get on the ballot via constitutional/charter amendments. That’s what happened in 1998, after all.

    DOUG: The editors may have meant that, but the legislature has that power/authority now. There is no need for a ConAm of that nature.

    As for “all kinds of questions get on the ballot,” other than the marriage fiasco of 1998, I can’t think of another pseudo-referendum ConAm question on the ballot in the 20 years I’ve lived here. Refresh my memory.

    Comment by Roselani — February 27, 2009 @ 5:47 pm

  6. To be sure, most amendments came from the ConCons of 1968 and 1978. But in more recent years the Legislature also put some crime-and-punishment type amendments on the ballot; I believe these were favored by the Lingle administration and the city prosecutor. I haven’t gone through the whole document, but here’s the link to the Bill of Rights article; note that, in addition to the marriage section, there are sections 24 and 25 which also went on the ballot at the instigation of the Legislature.


    Comment by Roselani — March 1, 2009 @ 8:30 am

  7. Roselani,

    The constitution is more than the bill of rights. The constitution has been amended a number of times since 1998:

    2000, UH autonomy, staggered terms in the Senate;

    2002, change in residency requirement of state candidates, removed the prohibition on state taking out bonds for private schools, and removed the constitutional requirement for grand jury indictments of felonies;

    2004, there were 4 crime-and-punishment amendments including a re-do of the removal of the grand jury indictment of felonies because of procedural defects in its first proposal in 2002

    2006, a change to the BOR selection process, amending the structure of the salary commissions, permitting agricultural enterprise revenue bonds, another crime-and-punishment related to crimes against kids, and the failed attempt at lifting the 70 year old rule on judges

    2008, failed proposal to lower the age of governor

    Also a number of other pseudo-referendum type amendments in the 90s: for hurricane relief, school construction projects, federal financial aid, a number of special purpose revenue bonds, the BOE’s structure, the Chief Justice’s authority to appoint district court judges, judicial selection commission, reapportionment commission deadlines, elimination of holdover senators, limiting oath of office requirement, change to population based reapportionment.

    Most of these were pseudo-referendum and the people pushing it did advertising to get them pushed through.

    I can’t imagine having voted for the last twenty years and not being remembering any of these questions.

    DOUG: Actually, it was me who did not remember, not Roselani, and I should have said that I don’t remember any other ConAms of a “bill of rights” nature. I do remember most of those tweaks to various powers and duties that you catalogued. Mahalo for the effort, though.

    Comment by line of flight — March 2, 2009 @ 2:37 pm

  8. My apologies for the sass. That is not a complete list, just off the top of my head. I don’t know if all of them are tweaks. I voted no on removing the prohibition of providing bonds for private schools because I felt this violates in a broader sense, the separation of church and state and also a violation of the right to public education. However, those kinds of claims I don’t think are cognizable before courts — which is why the prohibition had to be included separately in the constitution (and then removed).

    On the original point, I agree with your position that putting the matter on the ballot is a huge waste of time. It would be a non-binding referendum. But since less than half of the people in Hawai’i vote, it really wouldn’t reflect the majority either way anyway. So why not just rely on the credible scientific polling outfits. I think the Advertiser’s point and Roselani’s is based on hysteria-level emotional trajectories which are ultimately unnecessary and insert nostalgic misconceptions about the structure of power in Hawai’i.

    I really think its a shame for all these people to be so uplifted into political action against civil unions, especially the churches. People are losing their jobs, homes and can’t pay for basics like food and they think civil unions will be unraveling thread of society. That looks to me like hysteria that is not based on any meaningful religious doctrine or divine inspiration. I mention this only because I think insisting on a state-wide ballot question which has no basis legally flows from the same autonomous complex.

    Comment by line of flight — March 2, 2009 @ 8:12 pm

  9. Sorry you think I’m hysterical. I just thought I’d point out that, although there isn’t California-style referendum here, constitutional and charter amendments have been adapted to that function. Sad, because that’s not the purpose of a charter or a constitution, which should not be amended lightly.

    For the record, I was opposed to the 1998 amendment. ALL people should have civil unions, and let the churches do the marrying, or not. But that ship has long since sailed.

    Anyway, I do think it was foolish for the Legislature to pass a statute defining marriage as between a man and a woman and then put out another bill on civil unions that all but specifies that “everything about marriage applies here, too.” Theoretically it should be possible to dispense with the issue that easily, but the political reality is that you can’t so casually thumb your nose at the vote by 70 percent, wrongheaded as that vote might be.

    They should have defined in statute the rights/benefits/protections of civil unions without raising the M-word at all. Just my opinion.

    DOUG: A bill like that would have been an extremely long and messy piece of legislation, and/or it would have been an incomplete/unequal effort in comparison to marriage. The quick-and-dirty way they chose is the smarter way … from a procedural viewpoint.

    Comment by Roselani — March 3, 2009 @ 9:43 am

  10. I don’t think demanding referenda in a state that doesn’t recognize them to be hysteria per se, but I think it involves similar jumps of logic that find their energy in similar emotional complexes.

    Comment by line of flight — March 3, 2009 @ 7:36 pm

  11. I was in favor of civil unions when I voted for the amendment in 1998. The redefinition of “marriage” itself, what the word was to mean, was the issue, at least in my mind. The point was not to deny people benefits. In my mind the present bill comports with the amendment, and is, in fact, a logical extension of it.

    Comment by John — March 4, 2009 @ 1:20 pm

  12. Holy Crap! It worked!

    Check out this weeks Honolulu Weekly front page!

    Just Do the Right Thing!!

    DOUG: “It?” What worked?

    Comment by hipoli — March 4, 2009 @ 1:41 pm

  13. The link you just added isnt the actual front page of the Weekly.

    The print-version front page says, big and bold:

    “Do The Right Thing”.


    DOUG: Ohhhhh. Mirabile dictu!

    Comment by hipoli — March 4, 2009 @ 8:02 pm

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