News Release from Office of State Attorney General

Attorney General Louie has announced that he has issued Formal Opinion No. 13-1 (Op. No. 13-1) in which he has concluded that pursuant to Article III, section 1 of the Hawaii State Constitution, the Legislature has the authority, if it so chooses, to consider and enact a bill relating to marriage equity.

On Sept. 9, Gov. Neil Abercrombie called the Legislature into special session, scheduled to commence October 28, to consider a bill Relating to Marriage (the Proposed Bill), a copy of which the governor contemporaneously issued. According to the Proposed Bill, the purpose “is to recognize marriages between individuals of the same sex in the State of Hawaii.”  Proposed Bill, section 1.

The issue of marriage equity has generated vigorous discussion among legislators, community organizations, religious organizations, and individuals. As a result of these discussions, Sen. Les Ihara requested that the Attorney General provide a legal opinion with respect to whether the Legislature has the authority to consider, and if it so chooses, to enact the Proposed Bill. 

Attorney General Louie stated that “following a comprehensive legal analysis by the very capable deputy attorneys general in my office, I have concluded that the Legislature unquestionably has the constitutional authority to consider and enact the Proposed Bill.”  Because of the significant controversy surrounding the cultural, religious, political, and legal concerns raised by the Proposed Bill, Attorney General Louie decided that the subject warranted publication of a formal legal opinion.  “I hope that by issuing Op. No. 13-1, the community at large will have a greater understanding of the Legislature’s constitutional authority to enact legislation relating to marriage” stated Attorney General Louie.

A copy of Op. No. 13-1 can be reviewed and downloaded >>> here.

From the text:

QUESTIONS PRESENTED

A. Whether the Legislature may enact legislation that would recognize marriages between two individuals of the same sex without the electorate or the Legislature amending article I, section 23 , of the Hawaii Constitution;

B. Whether the Hawaii State Legislature has the authority, under the Hawaii Constitution, to pass the Proposed Bill; and

C. Whether the Proposed Bill is consistent with the federal and state constitutions, given the Legislature 's authority as described in article I, section 23, and article III, section 1, of the Hawaii Constitution.

SHORT ANSWER

The answer to all three questions is an unqualified yes. The authority to enact legislation recognizing marriages between two individuals of the same sex is vested in the Hawaii State Legislature. As detailed below, the plain language of article I, section 23, does not compel the Legislature to limit marriages to one man and one woman; it gives the Legislature the option to do so. No amendment to the Hawaii Constitution is necessary to give the Legislature the authority to enact the Proposed Bill, should the Legislature choose to pass it. And the subject matter of the Proposed Bill is consistent with the Legislature1 s authority "over all rightful subjects of legislation" as described in article III, section 1, of the Hawaii Constitution.