Attorneys for state Rep. Bob McDermott, a Republican who unsuccessfully challenged the state's new marriage equality law in court, turned to a few interesting experts to help make their case.
Joe Moore, a top-rated newscaster for KHON, and Michael W. Perry, a top-rated radio personality for KSSK, provided written declarations that were cited in court on Thursday.
Moore and Perry confirmed McDermott's account that voters were told that a 1998 constitutional amendment would give the state Legislature the power to reserve marriage to heterosexual couples only.
Other news media accounts at the time, however, chronicled the fact that the legislative intent behind the constitutional amendment was to give the Legislature -- and not the state Supreme Court -- the power to define marriage. The Supreme Court had ruled in 1993 that denying gay couples marriage licenses was a violation of equal protection under the state Constitution.
From Moore's declaration:
In the month leading up to the elections, the State sent out a Ballot Information Flyer to all Hawaii voters explaining the Ballot sheet, and we referred to that Ballot Information Flyer to determine how we would summarize the proposed Constitutional Amendments.
Question Number 2 on the ballot dealt with the issue of marriage in Hawaii, and the State explained that the Amendment would give the legislature the POWER TO RESERVE MARRIAGE TO OPPOSITE SEX COUPLES.
The State further explained that a "YES" vote on the ballot would give the legislature the power to reserve marriage to opposite sex couples ONLY.
The Station's newsroom leaders decided that in addition to presenting the Amendment in that manner, we would also state in the Station's newscasts, in order to be absolutely clear, that Question Number 2 meant:
SHOULD THE LEGISLATURE BE GIVEN THE POWER TO RESERVE MARRIAGE IN HAWAII TO ONE MAN AND ONE WOMAN ONLY?
To clarify even further, we stated:
IF YOU WANT MARRIAGE IN HAWAII TO BE LIMITED TO ONE MAN AND WOMAN ONLY, YOU SHOULD VOTE "YES" ON THE AMENDMENT, AND IF YOU WANT MARRIAGE TO MEAN SOMETHING ELSE, VOTE "NO."
For a month leading up to the 1998 elections, and on Election night, when presenting the results of the voting, I and other members of the Station's news team used those descriptions when referring to the Constitutional Amendment Regarding Marriage.
My recollection is that the listeners were glad to finally be voting on this issue.
In my discussions with callers I would explain that a "Yes" vote would approve the Amendment, and that would:
a. Put a definitive end to the "legal wrangling" involved with "same-sex marriage," so that marriage in Hawaii would remain a relationship between a man and a woman;
b. End and trump the Court battles; and
c. Put this persistent issue "behind them once and for all."
State Attorney General David Louie, meanwhile, turned to an interesting expert of his own: state Rep. Gene Ward, a Republican who opposes gay marriage and called for another public vote before marriage equality became law.
In 1997, Ward had a different insight into what the 1998 constitutional amendment would do:
Mr. Speaker, a few weeks ago Judge Moon rightly said that we have the trump card in this particular discussion. This bill brings us to the day of playing that particular trump card.
What I believe he forgot to say was that it's the people of Hawaii that hold the trump card according to this bill and not those who wear black robes. Unfortunately, the way the bill is written, however, it's those who sit in these seats who will decide whether there is same-sex marriage in the future. The social order that this one relies upon are those who are in the Senate and the House to say as the words define the power to regulate marriage between opposite-sex couples. Not in the people's minds, but in the minds of those who are elected representatives.