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Wednesday, October 30, 2013
Lawsuit: Hawaii Constitution Forbids Legislature from Creating Gay Marriage
By Rep Bob McDermott @ 9:50 PM :: 6858 Views :: Family, First Amendment, Hawaii History, Hawaii State Government

UPDATE: Hearing Set for Thursday Nov 7

UPDATE: Full Text of lawsuit

Representative McDermott files lawsuit to stop same-sex legislation

News Release from Office of Rep Bob McDermott   October 30, 2013

Representative Bob McDermott filed a lawsuit today seeking a Declaratory Judgment regarding the 1998 ballot issue pertaining to same-sex marriage. The Governor and many legislators now claim that the meaning of the issue presented on the 1998 ballot gave the State Legislature the power to make all future decisions on same sex marriage. McDermott, however, insists that the adopted Constitutional Amendment, and official instructions from the Office of Elections, clearly set limits on legislative authority. McDermott further states that the people clearly “thought” they were voting on a legal definition of marriage as between opposite sexes only. According to settled law, the people’s perception of the meaning of a constitutional vote carries precedence over any other subordinate statutory consideration.

McDermott said, “I was there in 1998 as a member of the State House….a claim few in office today can make. The people thought they were answering the question once and for all. However, the horrible language that was foisted upon the people by the Senate Judiciary committee at the time left us with no choice but to accept the amendment. This explains the mess we are in today.“

The 1998 amendment reads: The legislature shall have the power to reserve marriage to opposite-sex couples. On November 3, 1998, Hawaii voters approved the amendment by a vote of 69.2–28.6%, and the state legislature exercised its power to ban same-sex marriage.

However, the people were told by the Office of Elections in an aggressive 4-week campaign that the meaning of the amendment was at following:

Meaning of a Yes Vote

A "yes" vote would add a new provision to the constitution that would give the Legislature the power to reserve marriage to opposite-sex couples only. The Legislature could then pass a law that would limit marriage to a man and a woman, overturning the recent Supreme Court decision regarding same-sex marriage. (Verbatim Office of Elections instructions)

The point here is that the people thought they were voting on reserving marriage to opposite-sex couples only. Settled US Supreme Court Law affirms that the will or intent of the people on a Constitutional Amendment, when reasonably inferred, supersedes any subordinate statutory language or committee reports.

Excerpts from the Senate Journal, Friday April 18, 1997 just prior to the vote for the Constitutional Amendment Relating to Marriage show that Representative McDermott was not the only one who correctly understood the meaning of the amendment under consideration. (Emphasis added).

Senator Matsunaga –

“Essentially, it accomplishes what we sought to achieve last year. That is, marriage licenses will be limited to opposite sex couples, but coupled with the passage of HB No. 118, CD1, nontraditional couples will be provided access to substantially similar economic marital rights and benefits.”

The people of Hawaii will have an opportunity to definitively express their will on the issuance of marriage licenses. As legislators we are bound to acknowledge their power and abide by their will.

Senator Chumbley-

“I support this proposed constitutional amendment, Mr. President, because I support and believe in the right of the citizens of Hawaii to define their own constitution. I also trust that upon full and fair debate, our citizen, over time, will do the right thing.”

“The amendment before us today is as finely tailored as we could accomplish. The people will decide on the simple issue of whether marriage should be limited to couples of the opposite sex—the courts are not insulted, equal protection is not conditioned, and no religious or social dogma is adopted. Instead, and affirmative expression of our understanding of marriage is incorporated in the supreme law of the land.”

“Mr. President, as a Legislator, I took an oath to uphold the Constitution of the State of Hawaii, a document which I hold dear as a lawmaker and as a citizen. The preamble to our constitution states, ‘We reaffirm our belief in a government of the people, by the people and for the people, and with and understanding and compassionate heart towards all peoples of the earth, do hereby ordain and establish this Constitution of the State of Hawaii.”

Senator McCartney-

“So that the record is clear. Granting similar rights and benefits does not mean granting same sex marriage as some have alluded to in an effort to confuse the public. Our compromise package simply gives us the legal and constitutional abilities to limit marriage to man and woman and ensures that those who cannot be married under the law are afforded certain rights and benefits.”

Ayes, 25. Noes, none.

In summary, the legislature needs to acknowledge that the voters did amend the constitution with the intent to limit marriage to couples of the opposite sex. The current legislature needs to honor the legislative record, the people’s votes, and the Hawaii State Constitution.

McDermott said, 'The people spoke on this issue in 1998 in a clear voice. Conceding this decision to the Legislature is not what they want as confirmed by a recent survey conducted by QEV Analytics which showed that 70% of Hawaii's voters believed that the definition of marriage is something that the people should decide. So, let them decide again….my amendment in the House (HB5) will enable them to do just that. We are the people’s house.

State Representative Bob McDermott (R) Ewa Beach, is leading the charge to “Let the people Decide" via a new constitutional amendment. A former Marine and Gulf War Vet, McDermott is one of the organizing forces for a coalition of citizens, politicians, businessmen, and clergy in their attempt to stop the legalization of same-sex marriage. McDermott, a father of 8 children, said, “This legislation is being done quickly and sneakily as they know the people, given the chance to speak, will not approve of same-sex marriage. “


Related: Abercrombie, Legislature Say: “The People Choose on Marriage”


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