Seventy-four percent of Hawaii residents are opposed to same-sex marriage, according to a recent media poll. So why is Hawaii being described as a state on the verge of recognizing the union of two men, or two women, as a legitimate, legal, licensed marriage? Because the people of Hawaii are not being allowed to decide this issue.

Like Roe vs. Wade, and the 9th U.S. Circuit Court of Appeals decision in March that discovered a constitutional right to euthanasia, this issue has been usurped by judges—in this case, those of the Hawaii State Supreme Court. In May 1993, the Hawaii Supreme Court, by a 3-2 vote, decided in Baehr vs. Lewin (now Baehr vs. Miike) that to deny a marriage license to two persons of the same sex was an act of sexual discrimination and therefore illegal and unconstitutional. But the court, recognizing that certain rights can exist with reasonable restrictions, gave the state of Hawaii, the defender in the case, the chance to prove it has a “compelling state interest” to ban same-sex marriages.

Advocates on both sides of the issue have openly I doubted whether the state can come up with any self-interest that would be compelling enough to override the supreme court’s charge of sexual discrimination. Nevertheless, the state attorney general is preparing its case for a scheduled hearing this August.

The early attempt at addressing the rights of homosexuals was made in April 1994, when the legislature established a commission to examine what legal benefits existed for married couples and not for same-sex couples. The commission’s job was to address the same-sex question by taking on three tasks: to determine the “precise legal and economic benefits” that heterosexual couples enjoy, but homosexual couples do not; to examine whether there are public policy reasons to extend such benefits; and to recommend possible action by the legislature.

Included on the commission were Father Marc R. Alexander, executive director of the Hawaii Catholic Conference, and several members of the Church of Jesus Christ of Latter-day Saints. This commission’s membership was 6-4 in favor of “same-sex marriage,” with a chairman who was manifestly neutral.

The commission was reformed via new legislation in August 1995 after a lawsuit succeeded in expelling the religiously affiliated members from the panel on the basis of separation of church and state.

The newly constituted commission counted 5-2 in favor of same-sex marriage. Its majority report reflected this point of view, calling for the legalization of same-sex marriages.

The commission’s conclusions were essentially rejected by the state house of representatives but found some sympathy in the Senate. In the end, the House effort to pass a constitutional amendment bill ran up against the insistence of a few key Senate leaders that something, by way of benefits or rights, be given to cohabitating gay couples. These advocates countered the constitutional amendment effort with a “domestic partnership” bill, which gave gay couples virtually all the benefits of married couples, except their title to marriage.

But the House, and other backers of the constitutional amendment, saw “domestic partnership” as just a guise for marriage. Ironically, same-sex marriage advocates, while praising it as a step forward, rejected its “separate but equal” message and doubted whether it would pass supreme court muster.

When public hearings were first conducted by the legislature in September and October of 1993, the Hawaii Catholic Conference testified unambiguously against same-sex marriage. Bishop Francis X. DiLorenzo, bishop of the Diocese of Honolulu (Hawaii has but one diocese), called a press conference in early 1994 to establish the diocese’s opposition to same-sex marriage and its commitment to fighting the issue. Retired associate justice of the Hawaii State Supreme Court Frank Padgett, a Catholic, also came forward to offer testimony against gay marriages. With 230,000 members in a population of 1.2 million, the Catholic Church has been the largest religious denomination defending traditional marriage in this debate.

In January 1996, the citizens’ coalition, Hawaii’s Future Today, was created to fight same-sex marriage, and two other social legislative issues: casino gambling and prostitution. Although other groups and organizations, such as the Alliance for Traditional Marriage, publicly joined the call to stop same-sex marriage, Hawaii’s Future Today provided the most prominent, and perhaps the most politically moderate, voice of opposition outside the legislature. Its first rally drew more than 2,000 supporters.

The key argument of those in favor of same-sex marriage has been that the issue is one of civil rights—that homosexuals should not be denied a right guaranteed to other citizens, namely the right to marry. It is interesting to note, however, that the decision of the Hawaii State Supreme Court made it clear that same-sex marriage is not a civil right. Nevertheless, the two major Honolulu daily papers heartily embraced the civil rights argument in their many editorials on the topic.

While acknowledging that their own polls showed the vast majority of Hawaii residents against the legalization of gay marriages, the newspapers said in effect that this issue was “too important” to be decided by the people.

So where does the issue stand now? Most likely, the next battleground will be the courtroom. When the trial begins, the state will have the opportunity to demonstrate compelling state interest via evidence for the present marriage practice. While most commentators believe that the state will not succeed, some, such as Justice Padgett, believe that the state can make a persuasive case.

According to Padgett, the state can legitimately give preference, special recognition, and benefits to heterosexual unions because such unions “further the fundamental goal of the preservation and survival of the human race and the state.” Padgett’s position is based on the U.S. Supreme Court’s decision in Skinner vs. Oklahoma, wherein one reads, “Marriage and procreation are fundamental to the very existence and survival of the human race.” Justice Levinson of the Hawaii State Supreme Court noted this decision himself.

Once the trial is held, it may take several months before the judge issues the decision. If the decision is against the state, it is possible that the judge will order the state to issue marriage licenses to same-sex couples immediately.

The people of Hawaii do not want this social experiment perpetrated upon them. They do not want “same-sex marriage.” And one way or another, the voice of the people will be heard.

  • Rev. Marc R. Alexander and Patrick Downes

    At the time this article was published, Rev. Marc R. Alexander was executive director of the Hawaii Catholic Conference; Patrick Downes was editor of the Hawaii Catholic Herald.

tagged as:

Join the Conversation

in our Telegram Chat

Or find us on
Item added to cart.
0 items - $0.00

Orthodox. Faithful. Free.

Signup to receive new Crisis articles daily

Email subscribe stack

Share to...