Televised coverage of government bodies is far from riveting programming. But last week Friday, the business of the state Capitol made for some pretty good TV. The House was debating the same-sex marriage bill.
I found the show to be a real eye-opener. I certainly don't pay much attention to our representatives at work. I certainly had never heard most of them speak before. Listening to speeches in support of or in opposition to the proposed bill was the most intriguing thing about the live coverage that night.
I like a good argument. On full display for everyone to see was the entire panoply of legislative justifications to do something or, in the case for some on the floor that night, to not do something.
There was Jo Jordan - an openly gay representative from Waianae - who emotionally stood by her decision to vote against gay marriage. Her reasons were kind of strange.
And then there was Maui's own Mele Carroll. Her position was a real head-scratcher. Her 20-minute oration in opposition to the now instantly historic piece of legislation meandered from criticism of the long lines of testifiers to quoting testimony from Native Hawaiians who believe that gay marriage is another form of cultural imperialism. In the end, I was left with no real clear explanation for her opposition. I just knew that she wasn't going to vote for it.
But perhaps the most eyebrow-raising opponent of the bill who spoke on the House floor was a woman named Sharon Har. Ms. Har's voice boomed into the microphone. She was enraged by the language in the committee report. She harangued the majority and waved her papers around saying that the legislative record was rife with inaccuracies.
The supporters were treating the affair as a foregone conclusion. And rightfully so. They knew they had the votes. House Majority Leader Scott Saiki reminded one of my friends of the guy at a wedding who has to give the obligatory mahalos for the slide show, the food and the wonderful centerpieces.
Presiding over this mix of personalities was the speaker, Joe Souki. The speaker was almost serene at times. And finally when everyone had his or her say - both for and against - there was the call for recess. Recess? What a cliffhanger! About 20 minutes later it was all over. The same-sex marriage bill passed, and it was now left for the Senate to approve it Tuesday.
The Senate did not want to reopen this debate and the bill passed in the form the House approved. On Wednesday, it was no surprise that the governor signed it into law and Hawaii joined the other 14 states that recognize marriage between members of the same sex.
The legislation is part of a much bigger story. Hawaii will always be linked with the same-sex marriage debate. It started here 23 years ago. In 1990, three same-sex couples applied for marriage licenses with the state Department of Health. The department unsurprisingly turned them down after the state attorney general issued an opinion stating that the constitutional right to marry was limited to members of the opposite sex.
The couples brought a lawsuit in Honolulu, but the trial court dismissed it outright before it went to trial. The couples took their case up to the Hawaii Supreme Court, and in 1993 the court held that a statute limiting marriage to members of the opposite sex was inherently unconstitutional.
The high court noted that this was a form of discrimination that did not comport with the equal protection clause in the state constitution. It sent the case back down to the trial court to determine if the government could justify this kind of discrimination. It couldn't, and for almost two years homosexual couples were free to marry in the state of Hawaii.
It sparked a nationwide debate. The backlash came in 1998 when the Hawaii Constitution was amended to limit marriage to opposite-sex couples. The constitution now had a dubious provision that allowed the Legislature "the power to reserve marriage to opposite-sex couples."
After decades, the debate has come back to the islands. Proponents of same-sex marriage asked whether this power could be exercised to simply allow same-sex marriage. In a strange twist, the attorney general's office issued an opinion stating that it could.
That led to the legislation we've been reading about today. Opponents have already questioned whether this week-old legislation is even constitutional in light of the 1998 amendment. Rep. Bob McDermott has brought a lawsuit that challenges the Legislature's ability to even pass this law. That may mean this debate is not over, and his lawsuit may end up in the place where it all started decades ago: our Supreme Court.
* Ben Lowenthal is a trial and appellate lawyer who grew up on Maui. His email is firstname.lastname@example.org. "The State of Aloha" alternates Fridays with Ilima Loomis' "Neighbors."