Last week in Honolulu, a conference committee for the state House and Senate agreed to the following proposed amendment to the Hawaiian Constitution: "The legislature shall have the power to reserve marriage to opposite-sex couples." These few words reaffirm the right of the people of Hawaii to interpret their own Constitution when their courts spiral out of control.
It wasn't supposed to turn out this way. Hawaii was meant to be the promised land for the gay rights movement. It legalized abortion before Roe v. Wade. It has an equal rights amendment and a privacy clause in its Constitution and a statewide "sexual orientation" antidiscrimination law. A majority of the population has no Christian affiliation. All this was supposed to guarantee victory, according to mainland litigators and theorists.
It was here in 1993 that the state Supreme Court, in Baehr v. Lewin, declared that the state's male-female marriage law was "sex discrimination." This set into motion the potential legalization of same-sex marriage.
There is little doubt that the marriage amendment agreed to last week will become part of the Constitution. It is scheduled for a vote Tuesday in the House and Senate, where it is widely expected to gain the required two-thirds majorities. It will then appear on the ballot next year; polls show voters overwhelmingly support it.
Article I of the Hawaii Constitution begins with these compelling words: "All political power of this State is inherent in the people and the responsibility for the exercise thereof rests with the people." When it comes to defining marriage, citizens have a hard time exercising that responsibility.
Their legislature reaffirmed the male-female marriage law in 1994, but to no avail. Advocates of gay marriage packed two successive state Commissions on Sexual Orientation and the Law in 1995, which supported same-sex marriage. Ignoring the Legislature's vote, last year the trial court hearing Baehr ruled that the state had failed to show any compelling reason against gay marriage.
A constitutional amendment was the only option left, and Hawaiians initially were rebuffed in this too. Last November, they thought they had voted to convene a constitutional convention, which would likely have tackled the marriage issue. But once again they were stymied by the Supreme Court, which on March 24 ruled that all the spoiled and blank ballots were "No votes and that the "No" votes had won.
The ruling had an immediate effect on the House and Senate negotiators, who had been haggling since January over separate amendments passed by their respective bodies. A judicial gun was at their heads. If they didn't reach agreement on a constitutional amendment, the Supreme Court would be poised to mandate same-sex marriage.
How did they do it? Along with the amendment, the conferees approved a "reciprocal benefits" law that would extend many benefits now limited to spouses to people who are ineligible to marry. The full Legislature will also vote on it Tuesday.
Under the law, an unmarried person will be able to designate a beneficiary for inheritance, medical insurance, hospital visitation and the like. Unlike domestic partnership laws, this law is not limited to couples in sexual relationships; the "couple" can be a widowed mother and her unmarried son. There are no tax benefits, access to divorce court, no provisions for parental rights.
It is a typically Hawaiian solution. Hawaiians justly pride themselves on tolerance and remember the bigotry against Japanese-Americans in World War II. Initially, the civil-rights rhetoric of the gay marriage advocates proved effective. People were not eager to be attacked as "bigot," "homophobes" or "enemies of civil rights." But polls showed 60% to 70% consistently opposed gay marriage.
The tide began to turn when a group of mainstream civic leaders formed Hawaii's Future Today. HFT set out to communicate that it was possible to be pro-marriage without being anti-gay. It dramatically redefined the issue, allowing numerous officials, including three former governors, to support letting the people decide about marriage.
Under the leadership of HFT and the more conservative Alliance for Traditional Marriage, thousands of citizens rallied at the state Capitol. Hundreds held peaceful stand-ins in legislators' offices and organized press conferences on the neighboring islands. Advocates of same-sex marriage responded with their own demonstrations and public statements.
For four years, in the shadow of the highest court in the state, the people of Hawaii have struggled with the question of how to do justice both to marriage as a unique male-female institution and to individual citizens who claim the right to benefits for their same-sex relationships.
The advocates of gay marriage have a simple answer: The court should redefine marriage. They have not given up on that strategy and will no doubt push the Supreme Court to decide Baehr before the people vote on the constitutional amendment. Meanwhile, the debate on same-sex marriage will continue in other state capitals.
The citizens of Hawaii, on the other hand, have reaffirmed the duty of the legislature to tackle controversial issues, taking diverse views into account. The specifics of the bargain don't go down easily for either side. But both sides will live to see other sessions and other elections. This is democratic pluralism at work.
For the moment at least, the people of Hawaii have the last word.