Date: Tue, 04 Feb 1997 21:19:13 -1000 From: lambda@aloha.net (Martin Rice) Subject: STATEMENT BY SEN. CHUMBLEY ON HAWAI`I HB 117 SD 1 Aloha ahi ahi kakou. Following please find the statement that was made by Senator Avery Chumbley on February 3, 1997 regarding House Bill 117 Senate Draft 1 before it's acceptance by the Senate Judiciary Committee. The vote was four in favor (Chumbley, Matsunaga, McCartney and Metcalf), two against (Bunda and Sakamoto) and one excused (Anderson). STATEMENT OF SENATOR AVERY B. CHUMBLEY, CO-CHAIR SENATE JUDICIARY COMMITTEE, REGARDING H.B. NO. 117: PROPOSING A CONSTITUTIONAL AMENDMENT RELATING TO MARRIAGE. On behalf of co-chair Matsunaga and myself, we recommend that H.B. No. 117, Proposing a constitutional Amendment Relating to Marriage, be amended by deleting its substance and substituting therefor the contents of S.8. No. 1800, Relating to the Governmental Regulation of Rights. In what is a significant departure from the position of this Committee and of the Senate last year, we agree that this issue should be put to the voters of Hawai`i in the form of a Constitutional Amendment. However, while we share the House's desire to definitively resolve this issue, we cannot recommend passage of the H.B. No. 117 as received because we find it to be too blunt an instrument to appropriately resolve the complex and delicate constitutional issues raised. We characterize the House proposal as missing the mark for two reasons: I. Limiting garriage through Denial of Due Process and Eaual Protection First, it expressly conditions the "Due Process and Equal Protection" section of our Constitution. I'd like to read this section aloud so everyone here knows what is says. "DUE PROCESS AND EQUAL PROTECTION Section 5. No person shall be deprived of life, liberty or property without due process of law, nor be denied the equal protection of the laws, nor be denied the enjoyment of the person's civil rights or be discrizimated against in the exercise thereof because of race, religion, sex or ancestry." This Section of our Constitution simply and eloquently ensures that none of our citizens will be discriminated against because of "race, religion, sex or ancestry." This clause is a positive affirmation of the commitment of our people to equal rights. As citizens of the most successful multicultural society in the world, it is a reflection of who we are, and what we promise our children. It is important to note, that no substantive changes have been made to this section of our Constitution since statehood, 38 years ago. Further, the wording of our due process clause is identical to that found in the 5th and 14th amendments of the U.S. Constitution. In our opinion, to carve out an inelegant exception to this promise is more than esthetically offensive, it suggests to our children and to the world that our promise may only be good until the next unpopular Supreme Court opinion. This not only sends the wrong message, it is simply wrong. S.D. No. 1800 achieves the same desired end as H.B. No. 117 without qualifying our commitment to equality. It would place in Article IX, the Public Health and Welfare section of our Constitution, the affirmative power of our state government to reserve marriage to couples of the opposite sex. In so doing, existing statutes reflecting this reservation, some which have stood since 1859 (138 years), would be automatically constitutionally validated and any State equal protection challenge would be superceded by this egress grant of authority. Under S.B.. No. 1800, no conditions are placed on our commitment to equal rights; rather, a positive expression of our power to regulate marriage, including limiting marriage to opposite sex couples, is reflected in our commitment to the health and welfare of the citizens of Hawai1i. We feel that this is the preferable approach. The second reason we find H.B. No. 117 is missing the mark is that it may be an unconstitutional violation of the principal of separation of powers. Our government is one of three co-equal branches. The duty of the legislative branch is to adopt Laws, the executive branch administers the law, and the judicial branch interprets the law. This structure is adopted in our State Constitution in Article III, sec. 1; Article V, sec. 1; and, Article VI, sec. 1. This balance of power has served the people of our State and nation well. Through it the rights of all our citizens have repeatedly been defined and preserved. It is a fundamental element of our democracy that this delicate, if somewhat inefficient, balance will ultimately retlect the best of onr people. H.B. No. 117 expressly seeks to shatter this symmetry. It would, by its terms, dictate judicial and administrative interpretations of the constitution while leaving the legislature free to do as it pleases. Some of our citizens would thus be effectively deprived of access to the courts on this issue. We believe that this result may be unconstitutional, and lawyers can reasonably disagree on this issue -- "experts" can be found to argue for either side. But whether technically unconstitutional or not, we know that this result is wrong. It is simply wrong to deprive any of our citizens his or her day in court. This is especially so when the deprivation might be based upon his or her minority status--or because we fear that our commitment to democracy may permit him or her to prevail. S.B. No. 1800 does not direct judicial or administrative outcomes. Rather it is a positive statement of the power and values of our people. II. Continued Deprivation of Rights Based on Sex Baehr v. Lewin discussed two distinct forms of discrimination. The first is that our marriage laws themselves discriminate on the basis of sex. The second form of discrimination was simply that the denial of marital status "deprives (the plaintiffs) of access to a multiplicity of rights and benefits . . . ." H.B. No. 117 addresses this denial of rights issue in the same inadequate manner as it addresses the larger issue of marriage. It simply includes "the benefits of marriage" as among the unreviewable elements of marital discrimination. This approach suffers from the same flaws I have already discussed. But with respect to governmental benetits, this approach suffers from a far more important flaw. That is, H.B No. 117 will deprive citizens of basic governmental rights and services simply because they are involved in committed caring relationships that the majority of us may not yet be prepared to recognize. Classes of people will be deprived of medical insurance, be taxed at a higher rate, lose commonly held homes, be deprived of a right to participate in the financial decisions of those they most love, fail to inherit or succeed to real propetty, and be excluded from some of the most critical decisions in the lives of loved ones. Under H.B. No. 117, the legislature will have the power to selectively grant such rights--presumably when a persuasive political case can be made for such grants. Again, we think this is simply wrong. While there may be substantial governmental interests to be protected in selectively limiting certain governmental benefits, any such limitation should be rooted in nature of the interest and governmental purpose in granting the right. In other words, if we are going to deprive any citizen from access to a right or benefit, we, the legislature should be compelled to have a darn good reason to do so. Unreasoned categorical deprivations simply cannot be justified. S.B. No. 1800 reverses the process prescribed in H.B. No. 117. The House version presumes no rights and chooses to grant some. The Senate version presumes a multitude of rights and intends to reserve the ability to restrict them if a substantial governmental interest justifies it. Our language thus requires that any marriage restriction nor deprive any person of civil rights on the basis of sex. Each of us understands that S.B. No. 1800 in its current form is unlikely to be the last word on this subject. The full Senate must consider the bill. And we must discuss and negotiate a final version with the House. What we have atterripted to do is to craft a constitutional amendment that will accomplish the objective of limiting marriage to couples of the opposite sex while preserving whatwe know to be our citizens commitment to fairness, tolerance, and equality. ~~pau~~ ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ "The House [of Representatives] is a corrupt institution." --Newt Gingrich Esquire, 10/89 "I am a creature of the House." --Newt Gingrich The Atlantic, 6/93 ~~~~~ Fred and Martin 24 years, yet strangers before the law ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~