Commentary: The Fabulous Gay Minority of Hawaii

Honolulu, November 1998

Polenapa’a ‘iaihoke aloha ikuleana like aikaua.

(In love tightly bound, you and I share equal rights.)

Many of Hawaii’s voters were confused in 1998 by the political advertisements claiming that the same-sex marriage controversy was not about sex but about civil rights, yet the advocates of “traditional marriage” dismissed that claim with purportedly true propaganda that the civil rights claim was a lot of “shibai” (pretense), that the actual choice was between real marriage and playacting.

Since the majority of voters are products of what they presume to be “traditional marriage”, it is hardly surprising that begging the question helped to obtain the resounding approval of the ballot question: “Shall the Constitution of the State of Hawaii be amended to specify that the Legislature shall have the power to reserve marriage to opposite-sex couples?”

The “Yes” of the 70% of ballots cast was followed by many happy exclamations as well as bitter tears of disappointment. However, it is doubtful whether the large affirmative majority is a real victory for anyone. Many people do feel that a fabulous opportunity was lost, a chance to fully articulate and comprehend the concerns of all the parties to the controversy, regardless of their sexual orientation, an articulation that could have averted much of the nonsense that is now bound to follow. Many curious people are still trying to put a finger on the truth that would lead out of the bewildering wilderness of the continuing emotional and intellectual turmoil generated by a question that begs askance of the roots of biological existence.

It is now obvious that a fabulous great thirty-percent minority sincerely believe that the recognition of marriage by a state that is blind to gender is a civil right. It is insufficient to dismiss their claim as “shibai”.

First of all, the belief is a real phenomenon, and the reasons supporting it deserve a full and impartial hearing by reasonable persons who have respect for the search for truth. For instance, it might be argued that, while the mating of animals is a matter of instinctive copulation, human marriage is a choice of who relates to whom. Although the same pair of albatross may return each season to the same breeding place as long as both live, and they may even be seen travelling together over the open seas, we would not consider them married in a moral sense except in bestiaries, for we know that they are faithful not to each other but to instinct. In some human societies the mere fact of living together as a couple with sexual relations constitutes marriage. Gay couples openly live together in our society, and their neighbors call them “married” if they declare themselves to be such by words and by deeds.

In a liberal society, marriage is a free association made by simple consent, a mutual choice which the society is bound to observe for the preservation of its own integrity as a society, and which it must defend as the ground of its freedom. For marriage is the closest symbolic relationship of two unrelated persons, and as such it transcends sexual orientation. Physical pleasure has a powerful influence on behavior. Homosexuality as well as heterosexuality is observed in many animals besides humans. However, when the animating powers bring humans together, humans make much more of their conjunctions than a mere opportunity for physical pleasure; they refrain from promiscuous intercourse and even abstain from monogamous copulation altogether in order to fully develop the natural faculty they rightfully prize the most.

Some cultures consider homosexuality to be a violation of natural law or a sin against creation that should be punished by death. Yet it was a highly favored institution for the expression of genuine love within the great civilization that gave birth to the Western ideal of freedom. And the practice was common in some primitive cultures, even required by sacred religious ritual. The Western institution of marriage did not exist in Hawaii, where sex was shameless and blameless although the kapu (taboo) system authorized, for example, the execution of women for eating port and some kinds of bananas and coconuts. Polynesians were famous or infamous for freely satisfying their sensual appetites by any means possible. The Constitution of the State of Hawaii requires the recognition by law of the native Hawaiian culture, for which acceptance of homosexuality has been well known by Westerners since Captain Cook’s time, when his sailors were asked by members of the Hawaiian nobility to become their aikane, a term denoting intimate or homosexual friends who were normally members of royal households in those days. Ohanas or extended families usually included several aikane as members.

Of course, we may find some practices and beliefs personally repugnant because of our own prejudicial orientation, but it is a mistake to dismiss other people’s beliefs out of hand and characterize them as evidence of degeneracy that would, if permitted, lead to the decline of civil society. In fact, our secular heterosexual marriage and divorce custom is very similar to the customs prevailing in the late Roman Republic and in the Roman Empire, customs that were denounced at the time as immoral and later referred to by eminent scholars as contributing to the decline and fall of the Empire.

In respect to those civil rights covered in the equal protection clause of the Constitution, it is obvious that, if a free person is to enjoy life, then he or she must not be discriminated against because of the accident of gender at birth, To refuse marriage certification because he or she is of one sex or the other in relation to his or her partner’s sex is obviously prohibited by the constitutional clause when abstractly considered. That its framers did not have homosexuality in mind at the time is relevant if the intent of the framers, derived from the self-evident truth that all are created equal despite the coincidences of birth, was to prevent discrimination in all cases including unforeseen cases unless some compelling public interest exists at the time to warrant discrimination. Naturally that compelling interest is the mores of the society, which today are trending toward the acceptance of gay marriage. Arguably, under popular sovereignty the majority should decide upon the issue, wherefore some courts defer to the legislature. But the parochial interest may be so compelling that the sovereign rights of states may have to again play second fiddle to the national interest.

We do have an enduring tradition of trusting the federal judiciary to view and review unforeseen cases of national interest and to interpret and apply the Constitution according to its best judgement, not because we believe that a juridical pope and his bishops are infallible interpreters of the sacred text, but because the United States judiciary is the most impartial institution that we have yet contrived despite the faults of its judges. Our trust in the judiciary is well placed, for the record demonstrates that its adjudications of our civil rights have been a prodigious contribution to the advance of our civilization.

We know of no better means than an independent judiciary to artificially separate and balance the powers of the branches of government while at the same time protecting the individual against the possible awful combinations of those powers, against the tyranny of sovereign states, and against the majorities that would deprive minorities of their human rights. Those abstract rights are grounded not in arbitrary constitutions but in the law natural to human beings given the inherent power of reasoning, the logic of equity that reveals error although logic determines not the absolute right, the logos that demands equal justice as the final cause of the rational process due to each and all, the elimination of fallacies if not fallibility.

Furthermore, there might be a legitimate fear that a constitutional amendment denying a particular right is unconstitutional because it is contrary to the first principles of the social compact upon which a constitution is framed; such an amendment would indicate the beginning of a gradual revocation by the majority of other hard-won rights. We look to the judiciary as our neutral agent to protect minorities from the tyranny of the majority, to interpret the Constitution as it is and, if need be, in the case of a tyrannical amendment, to hold the incoherent and abhorrent portion of the amended Constitution unconstitutional, as paradoxical as that might seem.

Surely it is unreasonable for an equal people who have thrived on the extension of their civil rights to abjure equality, the very basis of their individual liberty, and it is contrary as well to the intent of their forebears who, when casting the constitutional laws, knew full well that the Constitution points to the advance of liberty and not to an original state of brute ignorance. Any contract by which a man sells himself into slavery is void. That being true, a contract directing a legislature to do that for him is even more blatantly null and void.

All people can sympathize with the fear of the tyranny of the majority when it interferes with their private interest. Of course, there are those who are so inured to their subordination to the dominant power that they idolize all of those forms they might by chance happen to subsist under, including majority rule, the rule of the majority by an elite that often works against their best interests behind the images, masks and scenes. Hitler’s rise to power was legal in terms of majority rule. Many cried “Long live Stalin!” just before they were shot, and many long before that time exclaimed “God bless the King!” just before the executioner’s axe fell. Many others praised the “Republic” or the “Democracy” while being marched to their doom. The myth that majority rule is in the best interest of the species serves the same irrational ends as the other pernicious political myths. The conscientious exercise of the personal power of reason must be the first barricade against its abuse.

Therefore, to dismiss the abstract civil rights claim made by the great minority who lost at the polls as “shibai” is a dangerous and self-defeating misunderstanding of the safeguards that protect us all. The minorities fight for us all.

UPDATES

August 8, 2012, Jackson v. Abercrombie, United States District Court, District of Hawaii, the court held that, “because Hawaii’s marriage laws are rationally related to legitimate government interests they do not violate the federal Constitution.”

“Throughout history and societies, marriage has been connected with procreation and childrearing…. The legislature could rationally conclude that on a societal level, the institution of marriage acts to reinforce “the important legal and normative link between heterosexual intercourse and procreation on the one hand and family responsibilities on the other.” It follows that it is not beyond rational speculation to conclude that fundamentally altering the definition of marriage to include same-sex unions might result in undermining the societal understanding of the link between marriage, procreation, and family structure…. Under rational basis review, the state is not required to show that allowing same-sex couples to marry will discourage, through changing societal norms, opposite-sex couples from marrying. Rather, the standard is whether the legislature could rationally speculate that it might…. It is beyond dispute that allowing same-sex couples to marry would alter marriage as currently defined in Hawaii. Accordingly, the state may rationally decide to observe the effect of allowing same-sex marriage in other states before changing its definition of marriage. Moreover, Hawaii could rationally conclude that by enacting the reciprocal beneficiaries act, followed years later by the civil unions law, and retaining the definition of marriage as a union between a man and woman, it is addressing a highly-debated social issue cautiously…. Although the legislature has flexibility to amend or repeal social experiments that prove unwise, courts have no such ability once they constitutionalize an issue…. In discussing the institution of marriage, the Ninth Circuit has stated that “it is difficult to imagine an area more fraught with sensitive social policy considerations in which federal courts should not involve themselves if there is an alternative.” In discussing the need for judicial restraint in certain circumstances, the Hawaii Supreme Court has likewise acknowledged the need to “recognize that, although courts, at times, in arriving at decisions have taken into consideration social needs and policy, it is the paramount role of the legislature as a coordinate branch of our government to meet the needs and demands of changing times and legislative accordingly.” (Citations omitted)

September 2012, The U.S. Supreme Court decided to hold United States of America’s petition for writ of certiorari. in the case of Windsor v. United States, challenging the constitutionality of the Defense of Marriage Act, in abeyance pending disposition of other cases that may or may not be appropriate vehicles for determination of the issue in this one.

‘Section 3 of the Defense of Marriage Act (DOMA) defines the term “marriage” for all purposes under federal law, including the provision of federal benefits, as “only a legal union between one man and one woman as husband and wife.” It similarly defines the term “spouse” as “a person of the opposite sex who is a husband or a wife.” The question presented is: Whether Section 3 of DOMA violates the Fifth Amendment’s guarantee of equal protection of the laws as applied to persons of the same sex who are legally married under the laws of their State.’

‘Congress enacted DOMA in response to the Hawaii Supreme Court’s decision in Baehr v. Lewin, 852 P.2d 44 (1993), which held that the denial of marriage licenses to same-sex couples was presumptively invalid under the Hawaii Constitution. Although Hawaii ultimately did not permit same-sex marriage, other States later recognized such marriages under their respective laws…. Although Section 3 of DOMA does not purport to invalidate same-sex marriages in those States that permit them, it excludes such marriages from recognition for purposes of more than 1000 federal statutes and programs whose administration turns in part on individuals’ marital status.’ (Citations omitted)

About David Arthur Walters

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