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Constitutional Amendment 2 of 1998 amended the Constitution of Hawaii, granting the state legislature the power to prevent same-sex marriage from being conducted or recognized in Hawaii. Amendment 2 was the first constitutional amendment adopted in the United States that specifically targeted same-sex partnerships.[2]
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In 1993, the Hawaii State Supreme Court ruled in Baehr v. Lewin, 852 P.2d 44 (Haw. 1993), that refusing to grant marriage licenses to same-sex couples was discriminatory under that state's constitution. However, the court did not immediately order the state to begin issuing marriage licenses to same-sex couples; rather, it remanded the case to the trial court and ordered the state to justify its position. After the trial court judge rejected the state's justifications for limiting marriage to opposite-sex couples in 1996 (but stayed his ruling to allow the state to appeal to the Supreme Court again), the Hawaii State Legislature passed a proposed constitutional amendment during the 1997 session that would overrule the Supreme Court's 1993 ruling and allow the Legislature to ban same-sex marriage. This constitutional amendment appeared on the 1998 general election ballot as Constitutional Amendment 2.[3]
The question that appeared on the ballot for voters was:[4]
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?
Amendment 2 differed from amendments that followed in other states in that it did not write a ban on same-sex marriage into the state's constitution; rather, it allowed the state legislature to enact such a ban.[5] On November 3, 1998, Hawaii voters approved the amendment by a vote of 69.2–28.6%,[6] and the state legislature exercised its power to ban same-sex marriage.[5]
The language added by the amendment reads:[7]
The legislature shall have the power to reserve marriage to opposite-sex couples.
— Article I, section 23, The Constitution of the State of Hawaii
On October 14, 2013, Hawaii Attorney General David M. Louie stated in a formal legal opinion that Amendment 2 does not prevent the state legislature from legalizing same-sex marriage,[8] which it did in November 2013 with the Hawaii Marriage Equality Act.
On November 5, 2024, Hawaii held a referendum to remove the amendment from the state constitution.[9] The measure passed by a vote of 51.3% -40.4%[10]
- ^ General/OHA - STATE OF HAWAII - Statewide November 03, 1998 ** Summary Report **
- ^ "Baehr v. Miike". Lambda Legal. Archived from the original on February 3, 2012. Retrieved April 28, 2022.
- ^ Wilson, Christie (January 24, 2010). "Same-sex marriage issue has endured a long fight in Hawaii". The Honolulu Advertiser. Archived from the original on December 14, 2010. Retrieved April 29, 2022.
- ^ Gima, Craig (October 7, 1998). "Same-sex vote won't answer all questions". Honolulu Star-Bulletin. Archived from the original on August 7, 2010. Retrieved April 29, 2022.
- ^ a b Niesse, Mark (February 23, 2009). "Hawaii is latest civil unions battleground". Taiwan News. Associated Press. Archived from the original on April 29, 2022. Retrieved April 29, 2022.
- ^ "General Election 1998" (PDF). Hawaii Office of Elections. November 3, 1998. p. 4. Archived from the original on June 2, 2006. Retrieved April 29, 2022.
- ^ Hawaii Legislative Reference Bureau. "Article I: Bill of Rights". The Constitution of the State of Hawaii. Archived from the original on February 21, 2006. Retrieved April 29, 2022.
- ^ "Haw. Atty. Gen. Op. No. 13-1" (PDF). October 14, 2013. Archived (PDF) from the original on November 12, 2013. Retrieved April 29, 2022.
- ^ "Hawaii Remove Legislature Authority to Limit Marriage to Opposite-Sex Couples Amendment (2024)". Ballotpedia. Retrieved May 5, 2024.
- ^ "Hawai'i Office of Elections" (PDF).