Date: Mon, 31 Mar 1997 16:44:13 -1000 From: lambda@aloha.net (Martin Rice) Subject: HAWAI`I INTER-CHAMBER LETTER ON THE SAME-SEX MARRIAGE ISSUE Aloha awakea kakou. The following letter was "leaked" last week. It is now in the public domain. The Senate The Nineteenth Legislature of the State of Hawai`i State Capitol Honolulu, Hawai`i 96813 March 25, 1997 Representative Terrance Tom, Chair Representative Romy Cachola, Member Representative Robert Herkes, Member Representative Brian Yamane, Member Representative Paul Whalen, Member Rperesentative Cynthia Thielen, Member Dear Mr. Chairman and members of the Conference Committees: We believe that you share our fustration over the absence of real progress in our conferences on H.B. 117 S.D. 1, and H.B. 118 HD1 SD1, the marital status Constitutional Amendment and rights package. Sitting across the table and reading prepared statements which restate our starting positions simply does the citizens of Hawai`i no good. Therefore we would like to offer a proposal which may permit us to proceed to a reasonable and acceptable resolution on these bills. I. Areas of Agreement. Both the House and Senate versions of the bills share basic principles and objectives. For the purpose of clarification, we would like to restate our understanding of these shared principles and objectives to determine whether we are correct. Points of agreement include: A. That the people of Hawai`i should have the opportunity to vote on an effective Constitutional Amendment limiting the instituion of marriage to couples of the opposite sex; B. That in amending the State's Constitution, we do not, and will not seek to unreasonably discriminate against any segment of our population; C. That there are non-traditional loving relationships, partners of which have a right to share in many of the legal and economic rights and benefits afforded married couples. And that the extension of such rights will not damage meaningful marital relationships; 1. That the minimally acceptable rights are identified in H.B. No. 118 HD 1, and that other rights which share this level of acceptability should be included in the bill. 2. That recognition of these rights should accompany the Constitutional restoration of traditional marriage in Hawai`i; D. That the strengthening of Hawai`i's families would be equally well served by legislative attention to the issues of crime, domestic violence, education, economic development and governmental integrity, so that no time should be wasted on posturing on this issue; and E. That the proposed Constitutional Amendment must be submitted to the Governor by April 11, 1997, if the matter is to be resolved during this session, and that we share a commitment to meet this deadline. These items represent what we understand to be our areas of agreement. If you are in disagreement with any of them please advise us as soon as possible so that we may directly address and resolve the matter in conference. Otherwise we will proceed on the assumption that these principles and objectives reflect our mutual understandings. II. Points of Disagreement. A. H.B. 118, HD1, SD1. We understand this bill to represent an agreement in principle that appropriate substantive martial rights should be extended to nontraditional families. The measure, as offered by Chairman Tom, amends or originates over 60 statutory provisions extending spousal rights regarding 1) transfer of property upon death (probate code), 2) jointly held property (teneacy in the entirety), 3) legal standing (wrongful death), and 4) health (hospital visitation). We agree that these rights are appropriately extended. Taking as guidance the House Judiciary Committee's commitment to provide appropriate rights to "individuals who are prohibited by law from marrying, yet who nonetheless maintain such a close relationship with each other that they wish to designate each other as beneficiary of a number of benefits presently available only to married couples", House Standing Committee Report No. 2, the Senate identified approximately 140 statutory provisions which fall under the umbrella of the House's expressed concerns. Like the House provisions, the statutory changes encompass rights regarding spousal inheritance (e.g. worker's compensation, ERS), jointly held property (state taxation), legal standing (e.g., victims rights, domestic violence), and health (e.g., health insurance.) While more numerous, the Senate amendments do not deviate from the House's apparent intent. Since the House generated the structure and intent of the rights package, we trust that you are prepared to sincerely examine the Senate amendments insofar as they are consistent with the House's expressed intent. If this is not the case, please so advise. 1. Economic Impacts. a. Data. As we understand it, you are concerned about the potential economic impacts of the Senate amendments. Accordingly we have, at your request, transmitted to you our best available information regarding economic impacts. As you know, the State Department of Taxation, Employees Retirement System, and Insurance Division have all indicated that no significant adverse impact can be anticipated. Available data from outside Hawai`i including 100 private employers, 49 colleges, 62 state or local governments, and 22 unions who provide some form of benefits to couples prohibited by law from marriage similarly indicate no adverse impact. If you are aware of any data to the contrary, please provide it to the Senate conferees. To date, none has been provided. b. Assumptions. As we understand it, you may reject the relevance of our available data because either 1) Hawai`i effects are based upon assumptions, or 2) other jurisdictions' rights programs are not identical to that proposed in H.B. No. 118 HD1, SD1. As you know, the precise impact of any legislative action is impossible to determine until the program is implemented. To say that we cannot consider a new program until its precise impact is known is therefore a circular argument. We trust that you have not adopted this circularity and instead rely upon an alternative set of assumptions, facts or scenarios. If so, please transmit them to the Senate conferees so taht we might be able to meaningfully compare effects, costs and consquences. c. Committee Jurisdiction. As we understand it, you argue that because Senate amendments may have economic and other impacts, they should not be fully considered because such impacts would be under the purview of other legislative committees. As you know, the mere possibility of an impact does not require multiple committee consideration. Public records indicate that the House Judiciary Committee alone was referred 290 House single referral bills and reported 28 of them. We are certain that you agree that some real of imagined fiscal or extra-jurisdictional impact can be found for almost all of these bills. And if any significant impacts could be demonstrated, we trust that you and your leadership would have provided for appropriate participation. If you will identify substantive economic or programmatic impacts which are beyond the scope of our committees, we will consult with our leadership to determine whether appropriate subject matter chairs should be included in our conference with respect to their jurisdictions. We trust that you will do the same. If we have left out or mischaracterized your expressed concerns, please advise us immediately so that we might better understand and proceed. Otherwise we look forward to receiving the data and information discussed above so that we can work together to meet our, and the people's, deadlines. B. H.B. No. 117 S.D.1. We understand this bill to represent an agreement in principle that the state should have the power to limit the institution of marriage to couples of the opposite sex and that the people should have an opportunity to amend the State Constitution to achieve this end. We also believe that we agree that this should be done in a manner that does not dilute our State Constitution or unreasonably injury any minority. We ask that you correct any misunderstanding regarding these shared objectives and assumptions. 1. The Equal Protection Clause. We believe that you fully understand and appreciate our concern that it would be inadvisable to dilute our State's commitment to equal rights by conditioning Article I, section 5 of the State Constitution. And we believe that you understand that marriage is appropriately a part of our Constitutional expressions regarding Health and Public Welfare. We therefore cannot understand your insistence that the Equal Protection Clause be conditioned. If our mutual objective can be acoomplished without appearing "mean spirited" and "divisive" we believe that we should agree to do so. 2. A "Clean" Amendment. As we understand it, you seek an understandable and unequivocal amendment which reflects the will of the people of Hawai`i on the issuance of marriage licenses. We agree, but do not find the House version of H.B. No. 117 to accomplish this objective. The sixty-plus word amendment and question are virtually unfathomable to anyone who is not legally trained. We are not certain that this is what you mean by "clean." It is most certainly not "clean" in its construction or expression. We invite you to offer, and we would most certainly consider, more easily comprehensible language. The House language is also far from "clean" in its effect. As we understand it, implicit in the wave of legal verbiage is the stripping of court and administrative power over this matter. This technique has been proposed in Congress almost every time the courts issue and unpopular civil rights decision. It has never succeeded because our Nation's commitment to the separation of powers. If it is the House's intent to limit civil rights interpretation and enforcement through jurisdiction stripping, we believe that the "clean" amendment should clearly reflect this intent. We invite you to offer, and publicly defend, such language. Further, please defend the constitutionality and policy effect of such court stripping. 3. The Senate Proviso. It is our understanding that the first clause of the Senate proposal is acceptable to the House conferees and that you agree it will raise no significant Constitutional issues while accomplishing our mutual objective of limiting marriage to couples of the opposite sex. We find it far more understandable than the House language and trust you agree. If you find it less than effective or understandable please advise us so that we might mutually work on more satisfactory language. Apparently, it is the second clause of the Senate's proposal to which you object. It is our understanding that you are concerned that this clause may either 1) defeat the purpose of the first clause by effectively requiring same gender marriage; or 2) provide for the nullification of the first clause. We can understand how some may interpret the Senate language, but this simply is not our intent in any way, shape or form, and we deny and resent any statements or inferences to that effect. We have conveyed our intent to you on numerous occasions. The intent of the clause is simply to ensure fairness--that appropriate benefits are provided to nontraditional couples while preserving the traditional institution of marriage. Again, we believe that you appreciate that the hardship caused by the arbitrary denial of government benefits on the basis of sex is an issue of constitutional dimension, and that it is related to, but distinct from the traditional understanding of marriage. Our "proviso" sought to do no more than to manifest this shared understanding. To the degreee that it fails to clearly do so, we will willingly consider alternative language to ensure that nontraditional families are treated fairly under our Constitution. We invite you to make any such proposal and are prepared to do so at your request. We would like to emphasize that the purpose of this letter is to facilitate meaningful process, and a successful and just resolution of our conference. If you prefer, you can provide your responses in writing and in confidence. Or we can agree to discuss these understandings and concerns at the next conference committee meeting. As time is increasingly of the essence, we would appreciate a reply as soon as reasonably possible. Sincerely, /s/Avery B. Chumbley Senator Avery B. Chumbley Co-Chair /s/Matt Matsunaga Senator Matt M. Matsunaga Co-Chair /s/Mike McCartney Senator Mike McCartney Member /s/Wayne Metcalf Senator Wayne Metcalf Member Senate Conferees, HB 117 SD1, HB 118 HD1 SD1 cc: House and Senate leadership. ________________________________________________ "Some people have suggested reversing the Supreme Court's decision by tinkering with the equal protection or sex discrimination clause of our Constitution. Such an amendment is unnecessary, and this proposal offends my sense of fairness to all our citizens. Any campaign that seeks to isolate a portion of our people from the benefits of our Constitution would be both mean spirited and divisive to our community." Terrance Tom, State Representative, Honolulu Advertiser, page A21 (12/2/1993). "Today, the primary reason the state still requires a license before marriage is to protect the health and well being of the next generation." Terrance Tom, State Representative, Honolulu Advertiser, page A21 (12/1/1993). "Shall the due process and equal protection clause of the Constitution of the State of Hawai`i be amended to specify that statutes, regulations, laws, rules, orders, decrees and legal doctrines that define or regulate marriage, the parties to marriage, or the, or the benefits of marriage shall not be deemed in violation of the section or any other section of the Constitution by virtue of a limitation of the marriage relationship to the union of only one man and one woman?" HB 117 "The State shall have the power to regulate and define the institution of the marriage, including the reservation of marriage to couples of the opposite sex . . ." HB 117 SD1. "provided that this reservation shall be effective only if the laws of the State ensure that the application of this reservation does not deprive any person of civil rights on the basis of sex." HB 117 SD1. "Lack of access to . . . benefits has cause some hardship on (non-traditional) couples. But the question of whether same-sex couples . . . are entities by the Constitution to receive the legal benefits associated with a licensed marriage is distinct from the licensing issue, and should be dealt with separately by the Courts." Terrance Tom, Honolulu Advertiser, page A21 (12/2/1993). An example of such language might be, "any such reservation shall not deprive any person of similiar social or economic rights or benefits on the basis of sex except pursuant to a significant governmental interest." Date: Mon, 31 Mar 1997 18:07:48 -1000 From: lambda@aloha.net (Martin Rice) Subject: HAWAI`I INTER-CHAMBER LETTER ON THE SAME-SEX MARRIAGE ISSUE, 2 of 3 Aloha auwinala kakou. Following please find a response to the letter that was broadcast earlier by moi from The Hawai`i Senate Judiciary Committee to Representative Terrance Tom, Chair of the Hawai`i House of Representatives Judiciary Committee and members. Please note that Chariman Tom answers few, if any, of the Senate's questions. Makes one wonder if there is any compromise at all in the offing. House of Represenatives State of Hawai`i State Capitol Honolulu, Hawai`i 96813 March 27, 1997 Senator Avery B. Chumbley, Co-Chair Senator Matt M. Matsunaga, Co-Chair Senator Mike McCartney, Member Senator Wayne Metcalf, Member Dear Co-Chairs and Members of the Conference Committee for the Senate: On behalf of the House Conferees, I wish to acknowledge your recent communication regarding H.B. 117 S.D.1 and H.B. 118 H.D.1 S.D.1 which relate, respectively, to marriage and to unmarried couples. In reviewing your letter, I was very disturbed that the Senate felt it necessary to resort to rhetoric, misrepresentation, and innuendo in your written communication with the House conferees. We have sat with you in public at the conference committee table and given you our honest thoughts, set forth our position, and at each conclusion made reasonable suggestions as to how the discussion could move forward. Instead of a return to the conference table, we received a letter implying that the House has been unwilling to defend its bills, suggesting that we are required to tell you if we are sincere, and other disingenuous requests. The House voted by overwhelming majority, Democrat and Republican alike, in favor of both of these bills. I have publicly proposed them, commented on them, responded in writing to comments about them, been interviewed about them by the print, radio and television news, discussed and defended them in televised public affairs roundtables, and debated them on the floor of the Houe of Representatives. The Senate Conferees have not even been willing to talk publicly about the Constitutional Amendment at the last two Conference Committee meetings, even though I specifically inquired if we could, and now the Senate Conferees try to imply that I need to publicly defend the proposed Constitutional Amendment? Let's get to the heart of the matter. As best as I can understand from your letter, the Senate Conferees believe that any Constitutional Amendment which does not give the Hawai`i Supreme Court the power to impose same-sex marriage on Hawai`i "unreasonable discrimination against a segment of our population." The House conferees will not support any Constitutional Amendment which gives any power whatsoever to any Court or any administration to impose same-sex marriage on the people of Hawai`i. We agree that the people of Hawai`i should have the opportunity to vote on an effective Constitutional Amendment limiting the institution of marriage to couples of the opposite sex and we thought the Senate did also. This is the sole purpose of proposing a Constitutional Amendment. The Constitution is specifically designed to strip power the Government, contrary to your assertations. Our Constitution strips courts and administrators of any power to establish a state religion, ro order newspapers closed, to issue warrants without probable cause, to hold trials in secret, to imprison people for debt, etc., etc., etc. The Constitution tells the Courts, the Administrators and the Legislature what is permissible and what is not permissible. A Court must follow the clear language of the Constitution. The House does not believe that either our current law or any Constitutional Amendment which simply states that marriage is between a man an a woman "unreasonably discriminates against any segment of our population." In this the House is joined by the United States Congress, the United States Supreme Court, and every other court and Legislature in the courtry. The House Conferees agreee that no one should be discriminated against on the basis of sex or any other prohibited discrimination as found in our Constitution. Every Court in the country, (except, of course, the Hawai`i Supreme Court) agrees that limiting marriage to opposite sex couples is not sex discrimination nor is it any other form of prohibited discrimination. The House of Representatives believes that the people of Hawai`i reject the Hawai`i Supreme Court's view that opposite sex marriage is a form of prohibited discrimination. A Constitutional Amendment which permits the Legislature to define marriage as the union of a man and a woman therefore needs no provisos, exceptions or limiiting clauses and any such addenda defeat the very prupose of the amendment. The House Conferees will not accept any Constitutional Amendment which gives any authority whatsoever to the Hawai`i Supreme Court on the issue of marriage being solely between a man and a woman. The House Conferees do believe that there are many forms of loving relationships, familial and social, sexual and non-sexual. The House also believes that many identifiable segments of our society are deserving of the State's attention, support, help and assistance, including the elderly, the disabled, the young, the gifted, the struggling, the sick, those who work for a living, those who volunteer their time for others, those who pay taxes, and so many others. As the elected representatives of the people we can, and do, spend our time addressing these concerns. Every bill that is presented to us is designed in some way to help some segment of our community. It is for these reasons, and nor from any belief that traditional amrriage is unreasonable and unlawful discrimination, that the House has proposed H.B. 118. It is also for those reasons, that the House did not comb the Statutes books for the word "spouse" and add in "reciprocal beneficiary," as you did. H.B. 118 was never designed to be marriage for those who are not married. It was designed to address the legitimate concerns which were expressed to us by those couples who are not permitted by law to marry. When this was discussed at our last Conference Committee meeting the only "benefit" which the Senate was able to identify as having been expressed during your hearings as being useful for these couples was health insurance. The other benefits in the bill were described by the Co-Chair as "mostly manini" which makes me wonder if proposing them is to serve a need or just for show. The House Conferees are, and remain concerned, about the cost implications of the health insurance measure in your bill. The most recent communication from Mr. Graulty, the Insurance Commissioner, states that ". . . it would be extremely difficult to assess the potential cost impact on an employer's health care premiums if family coverage were afforded to both same-sex and opposite-sex partners." We suggested, at the Conference Committee meeting, that the issue be referred to the Legislative Auditor or some other neutral agency to give some guidance to us. You have chosen not to address that suggestion in your communication to us. The House Conferees wish only to insure that if there are increased costs in adding reciprocal beneficiaries to family health coverage that those costs are born by the reciprocal beneficiaries and not by the employers or other policyholders. We can and will make much more progress on this matter if we can meet where we should, at the conference table. The House Conferees stand ready to meet every day of the week until this matter is resolved. Sincerely, /s/Terrance W.H. Tom Terrance W.H. Tom Chair Date: Mon, 31 Mar 1997 18:27:15 -1000 From: lambda@aloha.net (Martin Rice) Subject: HAWAI`I INTER-CHAMBER LETTER ON THE SAME-SEX MARRIAGE ISSUE, 3 0f 3 Aloha ahi ahi kakou. Moving on into the night keyboarding this stuff in . . . This next letter is from one of Hawai`i's newest homophobes and fear-mongers. The Senate The Nineteenth Legislature of the State of Hawai`i State Capitol Honolulu, Hawai`i 96813 March 25, 1997 To: Members of the Senate and the House of Representatives Fr: Senator Norman Sakamoto Re: Educational Impact of Same Sex Marriage Our office has learned that the Department of Education has made no study on the possible impact of same sex marriage on the educational cirriculum of Hawai`i's public schools. This has me deeply concerned. The granting of legal recognition to same sex marriage could have far reaching consequences for public education in Hawai`i. Even if the Department of Education does not adpot an offical stance of promoting homosexuality, it can be expected that it will be legally obligated to include materials supportive of homosexuality and of same sex marriage. Many parents will find such material offensive and contrary to the moral values that they are teaching their children. The consequences can be expected to go beyond the cirriculum for health and physical education, and that for social studies and history. The consequences could also extend to books and materials in the school libraries, counseling guidelines, and extra-curricular activities such as sports events and social events. Good policy making mandates anticipating future consequences of present actions. The fact that no study has been done means that the Department of Education has no plan or strategy in place for dealing with the consequences of the legalization of same sex marriage. This makes me very concerned about the future of our children's education and conflicts with values taught in the home. I urge that we all work towards legislation that protects traditional marriage and will support our children and families.