View Point

Wednesday, October 28, 1998

There are sound legal
grounds for a ‘yes’ vote

Court erred when it said Hawaii's
Constitution provides for
same-sex marriage

By J. Stevens Hoag

There are many good reasons to support a "yes" vote on the constitutional amendment relating to same-sex marriage. Below are a few reasons why the amendment makes sense from a legal standpoint.

Court decision was wrong

One, the Hawaii Supreme Court decision in Baehr v. Lewin, which created the same-sex marriage problem, was seriously flawed. Neither the drafters of our Hawaii State Constitution, nor the voters who ratified the Constitution, intended to have the prohibition against discrimination on the basis of sex applied to our marriage laws to result in same-sex marriage.

Clearly, the intense debate regarding same-sex marriage is not about discrimination on the basis of sex (e.g. denial of employment or a job promotion because the applicant is, for example, a woman), but rather about sexual preference and behavior. Yet sexual orientation is simply not comparable to the categories of gender and race.

As retired Gen. Colin Powell stated, "Skin color is a benign nonbehavioral characteristic. Sexual orientation is perhaps the most profound of human behavioral characteristics. Comparison of the two is a convenient but invalid argument."

Let the people decide

Two, this decision should not, as proponents of a "no" vote argue, be left solely to the judiciary. Same-sex marriage would have wide sweeping social, economic and moral impacts not only on Hawaii, but on the entire nation as well. Comprehensive, fundamental policy decisions such as this one are ideally the province of the legislature and the people whom they represent, not the judiciary.

Proponents of a "no" vote argue, however, that the decision regarding same-sex marriage should not be the subject of public input because it involves a "civil right." This argument assumes, of course, that same-sex marriage involves a civil right -- something that even the Hawaii Supreme Court is unsure about (if the court was so sure that there was a civil right to same-sex marriage, gay couples already would be legally married).

More importantly, this argument ignores the fact that American democracy is based on the fundamental idea that our government is a government by the people, for the people and of the people.

It would be preposterous to be duped into believing that the people who created and are governed by a constitution may not amend it when it is misinterpreted, because some issues should be off-limits to the decisions of the people!

These demeaning arguments imply that Hawaii's citizens and their chosen representatives are somehow not smart enough to make the most basic choices about our society, and that three unelected, politically chosen judges should instead define what marriage is for our entire state and nation.

Race and preference differ

Three, those who feel that arguments against same-sex marriage are comparable to arguments once proffered in support of interracial marriage laws, or the wrongs done to Japanese Americans, are comparing apples and oranges.

While race is irrelevant to marriage, sexual orientation goes to the very heart of marriage. Interracial marriages merely changed the color of marriage in America, whereas same-sex marriage would completely contradict and drastically alter the institution of marriage.

Despite the confusion and scare tactics of "no" proponents, the marriage amendment will not affect the rights of minorities, Hawaiians, the elderly, abortion rights, or any other right. The amendment is simply about keeping marriage between one man and one woman. Period.

Traditional marriage and the family are the building blocks and fundamental units of society. We must remember that tolerance for homosexual behavior is not at issue.

What is at issue is the governmental validation and promotion of homosexual activities and lifestyles and the granting of government privileges and preferences without the support of the large majority of Hawaii's people who are opposed to same-sex marriage.

The people through their duly elected representatives already have clearly defined marriage in our state's laws as between one man and one woman. If the constitutional amendment passes, that definition of marriage will prevail. A "yes" vote on the constitutional amendment is therefore a vote for democracy, a vote for the people's voice to be heard.

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J. Stevens Keali'iwahamana Hoag is a 1984 graduate of
Kamehameha Schools and a 1996 graduate of th University of Hawaii
School of Law. He practiced law at a Honolulu law firm before
joining Hawaii Reserves Inc. in September.