Political Radar


September 25th, 2013

State Rep. Bob McDermott on Wednesday called for a constitutional amendment on gay marriage.

The Republican, who represents Ewa Beach, said he has organized a group of community leaders for a rally at the state Capitol on Oct. 28, the opening day of a special session on gay marriage.

Several Republicans -- and a few Democrats, most notably Rep. Sharon Har -- believe that the question must go before voters because of the 1998 constitutional amendment that gave the Legislature the power to define marriage as between a man and a woman. Any other definition, their argument goes, must go back before the electorate.

But the state Attorney General's office and several constitutional scholars contend that the 1998 amendment gave the Legislature the power to define marriage. The amendment was in direct response to a state Supreme Court ruling in 1993 that determined that denying gay couples marriage licenses was a violation of equal protection. The purpose was to give such power to the Legislature, not the courts.

From McDermott, who says the theme of the rally will be "Let the People Decide:"

I was in legislature 1998. The people thought they were addressing the question once and for all. However, the horrible language that was foisted upon the people by an intransigent Senate Judiciary committee at the time left us with no choice but to accept the amendment. This explains the mess we are in today.

13 Responses to “ConAmed”

  1. ohiaforest3400:

    Bob McDermott is just as clueless about the meaning of the 1998 amendment as Sharon Har is about constitutional law. They make a cute political couple and deserve each other.

  2. Especially Incognito:

    Is he a Civil Authority?
    If McDermott is a leader which
    he seems not, to ask that the "people" decide,
    sounds so much like what lingle said. That she in
    her office could not decide and so let the people vote.
    she vetoed and now is in hiding. Rumor is she may run
    for senate.
    "Let the People Decide" then get rid of politicians. I can
    do my own deciding and don't need to be led.

  3. Alan R. Spector:

    Before the amendment was sent to the voters in 1998, it was first passed out of the legislature in 1997 as House Bill 117. Section 1 of HB117 reads, “The question of whether or not to issue marriage licenses to couples of the same sex is a fundamental policy issue to be decided by the elected representatives of the people and not by judicial fiat.” It also states that the amendment was designed “to further ensure that the legislature will remain open to the petitions of those who seek a change in the marriage laws, and that such petitioners can be considered on an equal basis with those who oppose a change in our current marriage

    What part of the above don't you understand Reps McDermott and Har? Rep. McDermott, you acknowledge that you don't like the language and that it was "foisted upon the people by an intransigent Senate Judiciary Committee." Sorry, but you change history. The amendment language is what it is and that is what was passed by the House and Senate. That language clearly gives the legislature of today that constitutional right to legalize marriage for same-sex couples. You may not like it, but it is the law.

  4. ohiaforest3400:

    Thank you, Alan, for taking the time to tell the not-wit McDermott what should already be obvious.

    I can already hear him saying "The law is an arse!"

    As for Har, it is pure sophistry for her to argue that authorizing the Legislature to reserve marriage to opposite-sex couples is not the same as authorizing it to permit same-sex marriage. Of course, as a lawyer, she should know that Baehr v. Lewin said that the State could not, as a matter of equal protection, deny marriage to same-sex couples absent a compelling state interest. Opponents of same-sex marriage failed miserably at trial to demonstrate that compelling state interest, so they scared the electorate into passing an amendment that created a puka in equal protection "to protect traditional marriage." If the Legislature declines to further exercise that power, as by amending or repealing the limitation, equal protection requires that same-sex couples be allowed to marry. Only a repeal is necessary, but affirmative legislation is cleaner and easier to administer. End of story.

    Now I can hear Bob saying "Huh?" And Har fuming as she tries to outdo Mike Gabbard as the Taliban of marriage.

  5. Especially Incognito:

    senator graham is rumored to be gay.
    Being a conservative, he is against same sex
    marriage. ask him for a date and explanation.
    Convince him.

    Posterior motives wanted.
    Laws are made to be broken.
    ObamaCare is law but conservatives
    will flounderbuster to prevent that and let
    the government shut down. They little realize
    that they too will not get paid. But they are exceptional.
    Lollygagging by telling stories of Green eggs and Ham.

  6. Kolea:

    Both Alan and Ohia have done a good job explaining why a constitutional amendment is not necessary. Let me make another attempt, adding, I will admit, nothing new to what they have already shared. But sometimes people need to hear the same info presented in a different way in order to finally GET it.

    The Hawaii State Supreme Court ruled it was a violation of the State Constitution for the Health Department to refuse to issue marriage licenses to same sex couples. But their ruling allowed time for the Legislature to amend the constitution in a fashion which would explicitly allow such discrimination. The Legislature could have proposed an amendment which declared a marriage would be reserved solely for "a man and a woman." But they did not take that route. (This is where Bob McDermott gets upset.) Instead, they proposed to the voters, and the voters approved, an amendment granting the legislature the power to reserve marriage for opposite sex couples. The amendment, by itself, did NOT reserve marriage for opposite sex couples.

    Because the Legislature had passed a bill in 1994, limiting marriage to opposite sex couples, that law was no longer in violation of the newly amended state constitution. Should the Legislature at the upcoming special session, pass a marriage equality law, that would replace the 1994 law and make same sex marriage legal. And, importantly, it would NOT conflict with the 1998 constitutional amendment. It is therefore NOT necessary to remove the 1998 amendment.

    The persistence of the 1998 amendment may provide an opening for a future legislature to once again, propose legislation to limit marriage to opposite sex couples. But that ain't gonna happen. Just as most people have come to accept inter-racial marriage as a fundamental right, in a few years, most people will view anti-homosexual prejudice as a backward mode of thinking we will have, thankfully, outgrown. Even Mike Gabbard, Bob McDermott and Sharon Har will likely grow ashamed of their opposition. Just as the prominent former racist George Wallace did and how Republican strategist Lee Atwater, in his dying days, asked for forgiveness for having used racism to help elect Republican candidates.

  7. ohiaforest3400:

    Well said, Kolea.

    Just as the 1998 amendment authorized the Legislature to reserve marriage to opposite-sex couples, it authorized the Legislature to refrain from so reserving it, in which case equal protection requires extending marriage rights to same-sex couples. Hence, the upcoming special session.

    Can't wait for Gabbard, McDermott, Choy, and Har to become petrified dinosaurs, stratified under foot like odd relics of a bygone era.

  8. ohiaforest3400:

    Riffing on the title of Derrick's post, what the dinosaurs are proposing should be referred to as "Con-Scam".

  9. Especially Incognito:

    Birds of a feather stick together.

    Known in Hawaii that facts are relevant
    to seeing is believing.

  10. ohiaforest3400:

    FYI, Esp Inc, never been a member of any political party so, by that measure, 'tis I that am especially incognito, LOL!

  11. Especially Incognito:

    I agree, neither I am of any party.
    I would like to be able to vote for best
    candidate of either party.

    May I add, R-op-ed.

  12. LoveHawaii:

    Rep McDermott is correct. The people voted to preserve natural marriage -- one man and one woman.

    If citizens had voted against that amendment, same sex marriage would already be in place in Hawai'i.

    Lawyers can argue amongst themselves all they want about the wording.

    If our legislators really represented the people, they would not be considering making a law that distorts the meaning of marriage.

  13. Especially Incognito:

    September 26th, 2013 at 6:09 pm
    "FYI, Esp Inc, never been a member of any political party so, by that measure, 'tis I that am especially incognito, LOL!"

    Don't flatter yourself that you are not in a party.
    You side with those, making you not a member but
    a lemming.

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