By Derrick DePledge
The state Attorney General's office on Monday issued a letter that concluded that the state Legislature has the legal authority to enact a gay marriage bill.
The letter was in response to a request by state Sen. Les Ihara, Jr., for an opinion. Some opponents of marriage equality have said that the Legislature lacks the authority because of a 1998 constitutional amendment that gave the Legislature the power to define marriage as between opposite sex couples.
Opponents have said that the Legislature cannot redefine marriage without again amending the Constitution.
Attorney General David Louie has told lawmakers privately that they do have the legal authority to pass a gay marriage bill. The 1998 vote was in response to a state Supreme Court ruling in 1993 that found that denying marriage licenses to gay couples was a violation of equal protection. The constitutional amendment gave the power to Legislature, and not the courts, to define marriage.
A. Whether the Legislature may enact legislation that would recognize marriages between two individuals of the same sex without the electorate or the Legislature amending article I, section 23 , of the Hawaii Constitution;
B. Whether the Hawaii State Legislature has the authority, under the Hawaii Constitution, to pass the Proposed Bill; and
C. Whether the Proposed Bill is consistent with the federal and state constitutions, given the Legislature 's authority as described in article I, section 23, and article III, section 1, of the Hawaii Constitution.
The answer to all three questions is an unqualified yes. The authority to enact legislation recognizing marriages between two individuals of the same sex is vested in the Hawaii State Legislature. As detailed below, the plain language of article I, section 23, does not compel the Legislature to limit marriages to one man and one woman; it gives the Legislature the option to do so. No amendment to the Hawaii Constitution is necessary to give the Legislature the authority to enact the Proposed Bill, should the Legislature choose to pass it. And the subject matter of the Proposed Bill is consistent with the Legislature1 s authority "over all rightful subjects of legislation" as described in article III, section 1, of the Hawaii Constitution.