James Hochberg
James Hochberg

By James Hochberg – Rumor has it that the legislature may have the votes to redefine the legal definition of marriage in Hawaii. Before they rush into redefining humanity’s fundamental building block – the life-giving, society-sustaining union between husband and wife – they, and all the people of Hawaii, would be wise to reflect on just what such a redefinition would mean.

Hawaii has been dealing with same-sex “marriage” issues since 1993 when a group of people involved in homosexual behavior sued the state for its longstanding definition of marriage as the union of a man and a woman. That led the people of Hawaii to enact a 1998 constitutional amendment which reads: “The legislature shall have the power to reserve marriage to opposite-sex couples.”  The legislature presented the question to the people, and the people responded with a resounding “yes” in passing the amendment with nearly 70 percent of the vote.

The public was not asked whether the legislature should have the power to redefine marriage, even though Section 1 of the Hawaii Constitution states, “All political power of this State is inherent in the people and the responsibility for the exercise thereof rests with the people. All government is founded on this authority.”  Therefore, the legislature is duty-bound to honor its servant role and allow the people to answer a wholly different question at the ballot box in 2014.

There is no reason to make assumptions for the people and ram through a definition that darling activist groups may demand. If, as proponents for redefining marriage claim, the support for their agenda has grown to outweigh the will to preserve and protect marriage, that assertion can be put to the test: put it on the ballot and see if the people actually do want to change the legal definition of marriage.

Opponents of marriage preservation routinely reduce marriage to a mere government stamp of approval on their personal relationships—as if society, reality, and biology should be turned upside down to accommodate the demand of some activists that non-marital relationships be legally assigned a superficial equality with marriage.

But marriage isn’t a matter of personal preferences and “validation” of whatever relationship two or more people may choose. If someone wants to think of their personal relationship in a certain way, that’s fine. But how we treat marriage under the law has societal consequences, especially for children, and many people understand the goodness and the benefit of preserving marriage in this way for the benefit of society. The robust, ongoing, public nature of the current debate about marriage demonstrates its importance for everyone; therefore, the future of marriage should be decided by the public as whole, not just by a few politicians.

If the legislature is not willing to allow the people to vote, then our lawmakers should consider the following:

U.S. District Judge Allen Kay ruled in August 2012 in Hawaii’s federal court that no fundamental right to same-sex “marriage” exists in the U.S. Constitution. The case has been appealed to the U.S. Court of Appeals for the 9th Circuit. In addition, the U.S. Supreme Court is reviewing two similar cases right now. Legislators would be foolish to act without seeing what happens with these cases before jumping forward with any marriage legislation.

Just two years ago, the legislature passed a civil unions law because the current proponents of same-sex “marriage” said they wanted civil unions. The law went into effect in 2012. With only one year under its belt, the legislature cannot possibly determine whether or not it is the answer to the question. They would be prudent to allow sufficient time to pass to accurately assess the effects of their own law.

Having exhibited tolerance of the proponents of same-sex relationships in enacting civil unions against great opposition, it is now time for the legislature to be tolerant of those who wish to protect marriage. Much is at stake for them, whether they be churches, pastors licensed to perform marriages, wedding planners, cake bakers, photographers, dress makers, invitation printers, and other people who deal with devoting their creative abilities in connection with a marriage ceremony. Many examples of legal attacks on such people exist in other states.

Because of this, passing any bill to redefine marriage means legislators must do the work of including strong protections against lawsuits and discrimination claims in the event that any of these people decline to lend their premises or talents for religious reasons. Also, protections for schoolchildren and their parents must be included so that they won’t be forced to accept, against their sincerely held beliefs, that two people of the same sex can form a marriage together. For these additional reasons, it is much better for lawmakers to wait and see what happens in the 9th Circuit and the U.S. Supreme Court before expending effort on any marriage redefinition bill now.

For many people in Hawaii, marriage is, has been, and always will only be, only a relationship between one man and one woman. The legislature must protect that reality, or it runs the risk of enforcing an arbitrary orthodoxy which no government in the U.S. should ever do.

James Hochberg is an Alliance Defending Freedom allied attorney, local counsel for Hawaii Family Forum in its defense of Hawaii’s marriage laws in federal court, and president of Hawaii Family Advocates. He previously served as one of seven commissioners on the Hawaii Commission on Sexual Orientation and the Law.