by Andrew Walden
In an October 14 Opinion 13-01, Attorney General David Louie interprets Hawaii’s Constitution Article 1, Section 23 as allowing the legislature to enact same sex marriage without consent of the people. But he conveniently omits the fact that the legislature and governor have already mandated their own interpretation of the Constitution –one which is at odds with Louie’s.
Article 1, Section 23 reads:
“The legislature shall have the power to reserve marriage to opposite-sex couples.”
According to Louie’s “short answer” on page 2 of his Opinion, “…the subject matter of the Proposed Bill is consistent with the Legislature’s authority ‘over all rightful subjects of legislation’ as described in Article III, section 1 of the Hawaii Constitution.”
Actually, Article III, section 1 reads: “The legislative power … shall extend to all rightful subjects of legislation not inconsistent with this constitution….”
And that’s just the beginning of Louie’s omissions.
The legislature and the governor interpreted the Hawaii State Constitution--and wrote their Finding into law--when enacting Civil Unions in 2011.
In his Opinion, Louie glaringly avoids any reference to the language adopted as part of the Civil Unions bill (Act 1 of 2011, now HRS572C-2) which puts the legislature on record interpreting marriage—which is addressed only in Article 1, Section 23--as being a choice of the people:
“The legislature finds that the people of Hawaii choose to preserve the tradition of marriage as a unique social institution based upon the committed union of one man and one woman. The legislature further finds that because of its unique status, marriage provides access to a multiplicity of rights and benefits throughout our laws that are contingent upon that status. As such, marriage should be subject to restrictions such as prohibiting respective parties to a valid marriage contract from standing in relation to each other, i.e., brother and sister of the half as well as to the whole blood, uncle and niece, aunt and nephew.”
This Legislative Finding is referenced on page 13 of Abercrombie’s proposed same sex marriage bill, making Louie’s omission all the more instructive. Hawai’i Free Press received no response from the Attorney General’s office to a request for comment.
The Attorney General may be silent, but Honolulu Attorney Jim Hochberg, President of Hawaii Family Advocates, was not. In response to an inquiry, Hochberg explains:
“In 2011, when writing the Civil Unions law, the Hawaii legislature made an official, Legislative Finding that the 1998 amendment vote was the people preserving the tradition of marriage as a unique social institution based upon the committed union of one man and one woman. This Finding completely contradicts the Attorney General’s Opinion on the legislature’s power to redefine marriage based on the 1998 constitutional amendment. Since that 2011 Finding is included in the Governor’s draft same-sex marriage bill, which was written by the Attorney General, the Attorney General must have excluded any discussion of that language from his Opinion because he doesn’t have an answer for it consistent with his Opinion.”