Come now AMICI CURIAE, REPRESENTATIVE MICHAEL KAHIKINA, REPRESENTATIVE EZRA K. KANOHO, REPRESENTATIVE COLLEEN MEYER, REPRESENTATIVE DAVID STEGMAIER, and REPRESENTATIVE ROMY M. CACHOLA, and submit their brief in support of Appellant/Defendant Lawrence Miike,
pursuant to this Court's November 23, 1998 Order.

        In the present case, this Court has been asked by plaintiffs to hold that Hawaii Revised Statute Section 572-1 violates the Hawai'i Constitution by not recognizing same-sex relationships as marriages. Put another way, plaintiffs claim that the Hawai'i
legislature has no power to refuse to recognize same-sex relationships as marriages. But the basis for the plaintiff s claim was removed when the Hawaiian people overwhelmingly approved Article I, Section 23 of the Hawai'i Constitution (the "Marriage Amendment"). In the Marriage Amendment, the people of Hawai'i have made clear that the Hawai'i legislature does not have the power to recognize only relationships between men and women as marriages: "The legislature shall have the power to reserve marriage to opposite-sex couples. Haw. Const. Art I, Section 23. The Marriage Amendment logically negates any claim that the Hawai'i Constitution recognizes any right to same-sex marriage. Since an alleged right to same-sex marriage under the Hawai'i Constitution was the basis of the plaintiffs claim, the Court no longer has before it a live controversy and the case should be dismissed as moot.
 

B.

The Hawai'i Constitution and the Legislative History Surrounding the Marriage Amendment's Passage Demonstrate that Hawai'i's Marriage Law which Does not Recognize Same-Sex Marriage, Need not Be Reenacted.

        While plaintiffs cannot dispute the conclusion that the Hawai'i Constitution now provides no basis for any right to same-sex marriage, plaintiffs might contend that they are entitled to marry because Hawaii Revised Statute Section 572-1, which recognizes as marriages only relationships between men and women, is no longer in force. That argument is wrong. Section 572-1 has been in force throughout this litigation, and the Hawai'i Constitution and the legislative history surrounding the Marriage Amendment's passage both show that Section 572-1 remains in force. Thus, Hawai'i law provides no right to same-sex marriage.
 

        The Hawai'i Constitution provides that "all laws in force at the time amendments to this constitution take effect that are not inconsistent with the constitution as amended shall remain in force, mutatis mutandis, until they expire by their own limitation or are amended or repealed by the Legislature."  Haw. Const. Article XVIII, Sec. 9, Hawai'i Revised Statute Section 572-1 was in force at the time the amendment took effect; the Circuit Court's ruling was stayed pending appeal and no final decision has been rendered by this Court adjudicating this section as unconstitutional. Were that not so, Hawai'i would now be issuing marriage licenses to same-sex couples. But Hawai'i continues to issue marriage licenses only to opposite-sex couples, with no sanction from any court.  Therefore, Hawai'i Revised Statute Section 572-1 still is, and always has been, a valid law under the Hawai'i Constitution. Because Hawai'i Revised Statute 572-1 is consistent with the Marriage Amendment, Article XVIII, Section 9 mandates that Hawai'i Revised Statute Section 572-1 remain in force.  Thus, Hawai'i law still recognizes only relationships between men and women, as it always has done.
 

2.

The Legislative History Surrounding the Amendment's Passage Shows that the Amendment Merely Clarifies and Confirms the Legislative's Existing Power To Recognize Only Relationships Between a Man and Woman as Marriages.

        This Court repeatedly has held that "the fundamental principle in construing a constitutional provision is to give effect to the intention of the framers and the people adopting it." Cobb v. State by Watanabe, 68 Haw. 564, 722 P.2d 1032, 1033 (Haw
1986). See also Hawaii State AFL-CIO v. Yoshina, 84 Haw. 3 74, 3 76, 935 P.2d 89, 91 (Haw. 1997); City and County of Honolulu v. Ariyoshi, 67 Haw. 412, 419, 689 P-2d 757, 763 (Haw. 1984). The framers of the Marriage Amendment, the Hawai'i Legislature, enacted this amendment not to create any new legislative power, but merely to clarify and confirm the Legislature's existing power to limit marriage to same-sex couples.
        Chairman Tom addressed this very issue on the night of the Amendment's final passage:

There are those who, for their own purposes, have tried to argue that in proposing this amendment the intention is that the 1999 Legislature must re-enact marriage legislation. This is absolute nonsense. We have, and continue, to issue marriage licenses solely to opposite-sex couples because that is the law. Our marriage laws have not been nullified or overturned because there has been no final ruling from the Supreme Court.

Through the passage of this measure, and the rights package of H.B. No. 118 (which incidentally, colleagues just passed through the House a little while ago by 41 votes in the affirmative), we hope to make a positive statement to reaffirm the right of the people over their constitution; we express our trust in the judgment of the people; and we manifest our commitment to equal rights.

The purpose of the bill is to provide the people of Hawai'i with The opportunity to amend the Hawai'i State Constitution to expressly state that the Legislature has the power to constitutionally reserve marriage to couples of the opposite sex, thereby addressing the ruling in Baehr v. Lewin on that issue.

        The Marriage Amendment logically negates any claim that the Hawai'i Constitution includes any right to same-sex marriage, The Amendment confirms and perpetuates in force Hawai'i Revised Statute section 572-1, which recognizes only relationships between men and women as marriages, The Hawai'i Constitution and this Court's jurisprudence establish that laws which are in force at the time an amendment is enacted, which are consistent with the amendment, are valid and enforceable. Hawai'i Revised Statute section 572-1 was in force at the time the Marriage Amendment was passed, and it is wholly consistent with the Amendment's provisions.  The legislative history surrounding the Marriage Amendment's enactment confirms that the Amendment reaffirms existing marriage law rather than granting a new power over marriage law. To continue to argue that this case should proceed despite the Marriage Amendment - is to ask this Court to repudiate the clear mandate of the Hawai'ian people. The present case challenging Hawai'i Revised Statute section 572-1 should be dismissed as moot.

        DATED: Honolulu, Hawaii,          DEC 23 1998_
 
 

ROBERT K. MATSUMOTO #1330 1441 Kapiolani Blvd. Suite 910 Honolulu, HI 96814 (808) 942-2281   MARIE A. SHELDON #5964 1000 Pacific Tower 1001 Bishop St. Honolulu, HI 96813 (808) 540-4207 Attorneys for Amici

JAY ALAN SEKULOW* The American Center for Law & Justice 1000 Regent University Drive Virginia Beach, VA 23464 (757) 226-2489 *Admitted pro hac vice

REPRESENTATIVE MICHAEL KAHIKINA
REPRESENTATIVE EZRA KANOHO
REPRESENTATIVE COLLEEN MEYER
REPRESENTATIVE DAVID STEGMAIER
REPRESENTATIVE ROMY M. CACHOLA