Date: 	Thu, 25 Apr 1996 08:55:40 -1000
From: Mia H H Lam <mial@hawaii.edu>
Subject: LOCAL NEWS APR 24 (fwd)


		GRAULTY HOLDS INFORMATIONAL HEARINGS

	Senator Rey Graulty held a hearing last night featuring the
testimony of Professor Jon Van Dyke of the UH Law School.  Van Dyke
testified that two of three proposed constitutional amendments were
deeply flawed and reiterated his support for domestic partnerships as
adequate to meet the court's requirements in Baehr v. Lewin (now Baehr
v. Miike).  Van Dyke found HB2366 (marriage is between a man and a woman)
and a new House amendment (just given Sunday to a conference committee)
almost irrelevant to the court case.
       Van Dyke thinks that, if either of these two amendments pass,
the courts will be faced with conflicting constitutional provisions (equal
protection and marriage-is-heterosexual).  In that case, he guesses that
the courts will create a domestic partnership category (with all the rights
of marriage) for same-gender couples.  Tracey Bennett, Tom Humphreys and
I questioned Van Dyke after the hearing; he admitted that he was only talking
about STATE benefits and not federal benefits.  Van Dyke thinks that the
federal government could withhold federal benefits from same gender marriage
anyway (even if we were to win same gender marriage).
       Van Dyke did a quick read of a private (to some Senators) draft of
a "separate but equal" amendment, the defines marriage as heterosexual and
creates domestic partnerships.  He told the committee that such an amendment
would satisfy the courts in Baehr v. Miike.  Tom Humphreys of the Alliance
for Equal Rights has requested copies of the "private" amendment from three
senators (none of us have seen it yet).
       Van Dyke thinks that there is a 40% to 60% chance that HB2366 and
the House's most recent proposal would violate the FEDERAL constitution
(Baehr v. Miike is argued only under Hawaii's constitution, because Hawaii
has a provision prohibiting discrimination based upon sex).  He's right on
there!  There can be no doubt that h.e.r.m.p would challenge it in federal
court.  They violate it by making it too hard for gays and lesbians to get
the same benefits as everyone else ("fencing them off from political
participation").  Van Dyke thinks the U.S. Supreme Court will strike down
Colorado's Amendment 2 for the same reason.
	Van Dyke several times said that the right thing to do, for the
legislature, is to pass domestic partnership now so that the court in
August/September has the OPTION of accepting it in lieu of marriage.  Van
Dyke said that, without DP<  the court has no option but to create same gender
marriage.
	Van Dyke had cautionary words on the scheduling of the amendment
vote.  Right now he represents the legislature against the Governor in court,
over the meaning the the 10-day-notice-to-the-governor prior to a 2/3 vote
for a constitutional amendment.  The governor claims that the 10-day notice
must occur prior to the 2/3 vote in BOTH houses [that was not done with
HB 2366, which was rushed to the floor of the house with no notice].
The legislature claims that it's enough to give 10 days notice prior to the
2/3 vote in just one house.  [Thus, if the Senate passes HB 2366 now with
a 2/3 vote, after a prior notice in March, HB2366 meets the 10-day-rule.]
By the way, it's not clear that the House notified the governor at all of
the pending 2/3 vote on a constitutional amendment---the records are
incomplete.  Van Dyke didn't spell it out, but L-A-W-S-U-I-T is an obvious
option when there is dispute over the meaning of the 10-day-notice-to-the-
governor rule.
	Van Dyke also had cautionary words on having two sessions close
together (the regular session now and a special session this summer), both
approving a constitutional amendment by a majority [an alternative way to
put the amendment to the voters].  He said that the Constitution clearly
intended that there be time to mull these matters over, and that such 
quickie approval by a special session would be challenged in court.  He
also cautioned against an approval sequence of odd-year-first, then even-year,
because that involved two different legislatures.  That too would be subject
to dispute.
	Van Dyke's main message:  pass domestic partnerships and thereby
give the courts an option.  The rest of this was just too interesting to
leave out!
	Graulty's hearings continue this morning with two more witnesses.


					Best Regards,


					Tom Ramsey