STANDING COMMITTEE REPORT NO. 2777
 
                             Honolulu, Hawaii
 
                                               , 1994
 
 
 
 
 Honorable Norman Mizuguchi
 President of the Senate
 Seventeenth State Legislature
 Regular Session of 1994
State of Hawaii
 
 Sir:
 
                        RE:  H.B. No. 2312
 
      Your Committee on Judiciary, to which was referred H.B. No.
 2312 entitled:
 
      "A BILL FOR AN ACT RELATING TO MARRIAGE," 
 
 begs leave to report as follows:
 
      The purpose of this bill is to limit the issuance of
 marriage licenses to male-female couples.
 
      Your Committee finds that Hawaii's marriage licensing
statutes, both as originally enacted and at present, are intended
 to apply only to male-female couples, not same-sex couples.  The
 Hawaii supreme court's plurality opinion in Baehr v. Lewin, 74
 Haw. 530, 852 P.2d 44 (1993), has effectively supplanted the role
 of the Hawaii State Legislature on this issue by substituting its
 own policy judgment for that of the people of Hawaii.
 
      Your Committee believes that the court's opinion violates
 the principle of separation of powers.  The issue in Baehr is one
 of policy and is inappropriate for judicial response.  Policy
 determinations of this nature are more properly left to the
 legislature or the people of the State through a constitutional
 convention.  Your Committee believes that the court's
 intervention in this matter encroached on the functions of the
 legislature in its law-making function, thereby impinging on the
 separation of powers of the respective branches of government.

Your Committee finds that it was the intent of the framers of the
 1950 Constitution that the word "sex" applied to gender and was
 not intended to apply to sexual orientation.  Accordingly, any
 expansion of the scope of Article I, section 5 to include sexual
 orientation should have been accomplished pursuant to Article
 XVII of the Hawaii Constitution -- constitutional convention or
 amendments by legislature -- and not by way of judicial
 legislation.
 
      With respect to an expansion of the traditional definition
 of marriage -- man and woman-- any statutory change to include
 same-sex relationships is clearly a policy question and wholly
 within the purview of the legislature and not the courts.
 
      The principle of separation of powers is necessary for the
 functional division of governmental power that is the foundation
 of our constitutional democracy.  The Hawaii state legislature,
 as the elected representatives of the people of the State of
 Hawaii, is, along with the executive branch, the appropriate
 source of major policy initiatives.  Your Committee believes that
 the court in Baehr has in effect substituted its own judgment for
 the will of the people of this State.  Deferral of this matter to
 the legislature therefore would have expressed the respect due a
 coordinate branch of government.
 
      Your Committee further finds that the plurality in Baehr
 failed to overcome the strong presumption of constitutionality of
 Hawaii's marriage licensing statutes.  In addition to the
 plurality's failure to defer to the policy judgment of the
 legislature, the court also failed to afford sufficient weight to
 the strong presumption that every statute is constitutional.
 
      Your Committee reiterates its belief that the plurality in
 Baehr failed to interpret the intent of the framers of the Hawaii
 Constitution and the State's marriage licensing statutes, and
 instead judicially legislated policy changes.  Since the
 determination of the nature of the marital relationship, together
 with its rights and benefits, falls more appropriately within the
province of the legislature as one of policy, your Committee
 believes that this issue is more properly dealt with in the
 legislative rather than the judicial forum.  Under the principle
 of separation of powers, your Committee finds that the court
 therefore should have deferred to the legislature in its
 determination and interpretation of the marriage licensing laws.

      Your Committee has therefore amended the bill to achieve the
 following:
 
      (1)  Emphasize that expanding the definitions of "sex" in
           Article I, section 5, of the Hawaii Constitution and
           "marriage" in chapter 572, Hawaii Revised Statutes, is
          a policy question within the exclusive purview of
           legislative bodies, to wit, the legislature or the
           constitutional convention and not the courts;
 
      (2)  Expressly reiterate the original intent of the
           legislature in enacting section 572-1, Hawaii Revised
           Statutes, that that section, and all of Hawaii's
           marriage licensing statutes, both originally and
           presently are intended to apply only to male-female,
           not same-sex couples, and that this application of the
           statute is consistent with Article I, section 5, of the
           Hawaii Constitution; and
 
      (3)  Understanding that same-sex relationships do exist:
 
           (A)  Provide assurances consistent with Article I,
                section 4, of the Hawaii Constitution that the
                laws of the State do not prohibit religious
                organizations from solemnizing same-sex
                relationships; and
 
           (B)  Provide for the establishment of a commission on
                sexual orientation and the law to conduct a study
                and present a report of its findings to the
                legislature prior to the convening of the regular
                session of 1995.
 
      Your Committee on Judiciary is in accord with the intent and
 purpose of H.B. No. 2312, as amended herein, and recommends that
 it pass Second Reading in the form attached hereto as H.B. No.
 2312, S.D. 1, and be placed on the calendar for Third Reading.
 
                                    Respectfully submitted,
 
 
 
 
                                    ______________________________
                                    REY GRAULTY, Chair