Hawaii, and a sign of how far we’ve come

November 15, 2013

As you may have noticed, my passion for liberal causes such as Equal Marriage is matched, even sometimes maybe eclipsed, by my fascination with political and religious history, legal reasoning, and the like. I support Equal Marriage however it comes about, but I also love going into the precise details of how it comes about in each jurisdiction.

So what caught my attention in the news about the recent win in Hawaii was this: it was reported all along that the state already had a court decision mandating equal marriage 10 years before Massachusetts, but this was overturned by a state constitutional amendment before it could go into effect. Now how could the mere statute which was just enacted overturn the amendment? Well, what I found out today is that unlike many states which have amended their constitution to directly define marriage as between a man and a woman, the Hawaii amendment – approved by a 70% majority in a 1998 referendum – was much more modest; it only permitted the legislature to define marriage in such a way. Which the legislature promptly did. In effect, the 1998 amendment merely carved out an exception to the state’s equal protection clause, preventing the court from reaffirming its previous ruling.

Why did the Traditional Marriage camp not go farther, as in so many other states?  One possibility is that they felt that the more modest amendment was the most they could get away with, given the state’s generally liberal climate. But it may just be that they didn’t think that more was needed. In those days, so long ago, it seemed that the only way Equal Marriage could come about was by a court ruling. An elected legislature would never do such a thing. The Trads presented themselves as populists – let the people vote, they said, let their representatives vote, Equal Marriage was just a symptom of judicial dictatorship, the product of unaccountable ivory-tower judges losing touch with real American values. Our side said “we don’t vote on rights,” a slogan I confess I never liked much, as if there were some a priori way to determine without voting on them just what our rights are.

That was 15 years ago.

Since then several legislatures have enacted Equal Marriage; voters in several states have approved it in referenda. Here in Massachusetts, the Trads were unable to get even 25% of the legislature to vote put an anti-equality amendment on the referendum ballot. Most of us on the Equal Marriage side would still rather not have to go through expensive and divisive political campaigns on the issue, but at least, when we have to, we can feel we have a good and growing chance of victory.

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