Same Sex Marriage in Hawaii
posted by Gerard Magliocca
In 1993, the Hawaii Supreme Court held that the state’s ban on same-sex marriage was unconstitutional. In 1996, Hawaii voters approved a constitutional amendment overruling this decision. In 2011, the state created civil unions for same-sex couples. I presume that what Hawaii did in its referendum was invalid under the Ninth Circuit panel’s decision yesterday, since it it indistinguishable from Proposition 8. And Hawaii is in the Ninth Circuit, and therefore covered by the panel opinion. Let the litigation begin.
February 8, 2012 at 8:17 am
Posted in: Constitutional Law, Current Events
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Responses (3)
Joe - February 8, 2012 at 11:00 am
One valid purpose offerred in the Prop 8 case was a “go it slow” approach. The opinion noted that it is conceivable that might work if Prop 8 actually did that, but that it was instead a complete ban. Under the Hawaii amendment, the legislature had the power to allow SSM. This discretion makes it “distinguishable” from Prop 8.
In 1993, the HA SC said that the SSM ban had to be put to strict scrutiny. Before the state finished the process of defending itself & it going back to the SC, the amendment was passed. The HA SC did not say that the SSM was unconstitutional.
["Because, for the reasons stated in this opinion, the circuit court erroneously granted Lewin's motion for judgment on the pleadings and dismissed the plaintiffs' complaint, we vacate the circuit court's order and judgment and remand this matter for further proceedings consistent with this opinion. On remand, in accordance with the "strict scrutiny" standard, the burden will rest on Lewin to overcome the presumption that HRS § 572-1 is unconstitutional by demonstrating that it furthers compelling state interests and is narrowly drawn to avoid unnecessary abridgments of constitutional rights"]
Amendment 2 was passed in 1998.
I’m sure a case can be made the Prop 8 ruling can be applied to Hawaii. Litigation is already ongoing there even w/o it on broader grounds that civil unions are not equal protection. But, the discretion to allow SSM is rather important. The CA legislature actually tried to protect SSM but Gov. Arnold S. vetoed it in part because he said the state constitution blocked that. Anyways, to be cont.
RA - February 8, 2012 at 12:42 pm
How long will it take to get to the SC? Surely that is where this is headed.
Dan - February 8, 2012 at 3:11 pm
But in 1996, Hawaii didn’t have civil unions. Prop. 8, held the Ninth Circuit, had no practical effect besides communicating the state’s disapproval of gays and lesbians, since its civil union law vitiated all of the arguments the proponents offered to show a rational basis for the proposition. There might be stronger arguments that the Hawaii law had practical consequences which could have been a legitimate rational basis. Can you overturn an enactment by showing that, subsequent to the enactment, the rational basis for the law has evaporated?
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