The courtroom is dark, and the lawyers have gone home. Court TV's crew is back on the mainland.

What has been dubbed "the gay marriage trial of the century" is over. The trial was the nation's first on whether marriage should be redefined to include same-sex couples. The world now waits for a judgment.

Whatever Circuit Court Judge Kevin Chang rules, he will not be not be the final arbiter of this contentious issue.

Who will be the final judge?

There are least three possible answers: the courts, the legislature, or the people assembled in a constitutional convention. Any of these could be the ultimate judge.

Which one should it be? Let's look at the options.

The Trial

In the case, called Baehr v. Miike, the state has defended the definition of marriage as a union of one man and one woman against six plaintiffs -- three same-sex couples who had sued the state for not granting them marriage licences.

The trial was a result of a 1993 Hawaii State Supreme Court ruling which directed the state to come up with a "compelling state interest" to defend the existing legal definition of marriage.

From Sept. 10 to 20, the state, represented by Deputy Attorney General Rick Eichor, and the plaintiffs, represented by attorney Dan Foley, examined and cross-examined social scientific experts in the courtroom.

The state argued that: (1) all things being equal, children do best with their biological mother and father; (2) a male-female married couple is the best setting to have and raise children; (3) the state may promote this for the sake of children; so (4) limiting marriage to male-female couples is justified.

The plaintiffs argued that: (1) children do best when they have nurturing adults; (2) it helps to have more than one parent, but the parents' gender is irrelevant; (3) the state has no basis for preferring that children be raised by male-female couples; so (4) marriage should not be limited to male-female couples.

On Friday, Sept. 20, Eichor and Foley presented their closing arguments. The courtroom was packed with observers and reporters.

Eichor argued, in addition to the above four points, that the "cultural, moral and ethical traditions" of Hawaii view marriage as a distinctive institution made up of one man and one woman. If the marriage law is overturned, he cautioned, there will be no principled basis for rejecting prostitution, incest or polygamy.

Foley, on the other hand, argued that the state had failed to show that children would be harmed by legalizing same-sex marriage. In any event, he said, this case is really about discrimination. He compared the ban on same-sex marriage to the ban on interracial marriage that the U.S. Supreme Court struck down in 1967.

The public presentation of "facts" is over. The "law" is still coming in, in the form of additional stacks of arguments on both sides.

The state and the plaintiffs will submit "proposed findings of fact" to the court by Oct. 11. On that same day, 14 other groups -- including the Diocese of Honolulu -- will submit "amicus briefs" (10-page special legal memos) to the court.

Other groups in favor of traditional marriage who are writing amicus briefs include Hawaii's Future Today, the Church of Jesus Christ of Latter-day Saints, the Alliance for Traditional Marriage, and eight state legislators assisted by the American Center for Law and Justice.

Among the groups supporting same-sex marriage submitting briefs are the American Civil Liberties Union, American Friends Service Committee, Hawaii Women Lawyers, the Japanese-American Citizens League (Honolulu Chapter), the National Center for Lesbian Rights, and the National Organization of Women Legal Defense and Education Fund.

The Diocese of Honolulu, in its amicus brief, will argue that marriage is a unique community defined by the presence of both sexes, and has long been recognized as such by both Hawaii and U.S. law. The special legal status given to marriage is fully consistent with the Equal Protection Clause of the Hawaii Constitution.

The state and plaintiffs will have their final say before Judge Chang on Oct. 25 when they will submit their own legal briefs to the court. Judge Chang has indicated that he plans to announce his decision in early December. Whichever side loses will appeal the decision to the Hawaii Supreme Court. The court is not likely to decide the case until well into 1997, or even in 1998.

Hawaii could sit tight, cross its fingers, and wait for the courts to decide this issue.

Or the state could embark on another path, in another branch of government, to come to a final judgment on the matter.

In fact, it already has. In the legislative arena, the debate on same-sex marriage has already had several hot skirmishes and even a few casualties.

The Legislature?

Polls have consistently shown that more than 70 percent of Hawaii residents oppose same-sex marriage. And they are willing to vote their mind, if the results of the Sept. 21 primary elections are any indication.

Hawaii lawmakers have been wrestling with the issue for several years with inconclusive results. In the last session, they tried but failed to pass a constitutional amendment defining marriage as the union of one man and one woman. Such an amendment would overide any court decision on the present case.

The primary election may have changed the equation a bit.

The elections saw the defeat of the leader of the effort to stop a constitutional amendment, Senate Judiciary Committee Chair Rey Graulty. Graulty himself blamed much of his defeat on the marriage issue. The winner by a wide margin, newcomer Norman Sakamoto, opposes same-sex marriage. He is automatically elected to a four-year term because he has no opponent in the general election.

In an astonishingly close race, Senate President Norman Miziguchi, who supported Graulty, narrowly won over another newcomer. His opponent, Diane Ho Kurtz, also focused on the marriage issue.

But House Judiciary Chairman Terrence Tom, the leader of the effort to pass a constitutional amendment, also barely managed to squeak by and win his primary election. He had been heavily targeted for defeat by supporters of same-sex marriage, and by members of Governor Cayetano's administration. The general election in his district is up for grabs.

Do the election results mean that the legislature will finally pass a constitutional amendment? In the last session, an amendment succeeded in the House but failed in the Senate, due to Graulty's opposition. Have the people's elected representatives gotten the message? There are still reasons to wonder.

Instead, the legislature may try to avoid the question. The issue is controversial and time-consuming, and many legislators wish it would simply go away. In addition, the 1996 Hawaii Democratic Party platform endorses leaving the marriage question to the courts, rather than to the legislature or to a constitutional convention.

Although it can be messily democratic, the legislative process is a better way than the courts to tackle deep-seated moral and cultural issues such as same-sex marriage.

In such a process, the issue is allowed a broader forum in which the public, through representation, is given a voice and a vote.

But there is a third, even more direct, way for the public to have its voice heard and acted upon: a constitutional convention.

A Constitutional Convention?

The third possible judge is the people of Hawaii, acting in the form of a Constitutional Convention. A convention could address and resolve the marriage question, once and for all.

At the Nov. 5 general election, each voter will have the option to vote Yes or No on whether Hawaii should convene a constitutional convention. The question is automatically placed on the ballot every decade. In the 1970s, there was a convention. In the 1980s, there wasn't. Now it is time to decide if Hawaii needs a convention in the 1990s.

If the voters vote "Yes" in November, then delegates will need to be elected. That's the catch: Who will the delegates be?

Supporters of same-sex marriage would most likely run as delegates, and if they win, try to stop action on the marriage issue. Or supporters of traditional marriage could run and win in sufficient numbers to put a constitutional amendment for traditional marriage before the people.

Here, the people rule.

Same-sex marriage is still an issue very much in the control of the people of Hawaii. It's in the courts now and the people could leave it there, to be decided by a handful of lawyers and judges.

Or the "gay marriage trial of the century" could end up as a side show to the main event, namely, a constitutional amendment passed by the people's representatives in the legislature.

Or a constitutional convention could turn the whole show over to the people themselves, offering the opportunity for an energetic process of democratic self-government.

With all the attention paid to the trial in First Circuit Court, it's easy to be confused as to who in Hawaii is in charge of deciding what the legal definition of marriage should be.

So let's be clear: the people are in charge of this government. If they choose to, they can tackle the question of marriage themselves.

The trial is over, but the verdict is yet to be announced. Will the ultimate judge of marriage law be the courts? The legislature? A constitutional convention organized by the poeple of Hawaii?

Only the people can answer this question.