HONOLULU — A bill proposing the repeal of the state Legislature’s authority to limit marriage to opposite-sex couples cleared the House of Representatives on Wednesday and will head to the Senate for further consideration.

What You Need To Know

  • If passed, House Bill 2802, House Draft 1, would allow voters to decide whether to repeal Article I, Section 23 of the state Constitution, which states: “The Legislature shall have the power to reserve marriage to opposite-sex couples” 

  • The question would be posed on the 2024 General Election ballot as: “Shall the state constitution be amended to repeal the legislature’s authority to reserve marriage to opposite-sex couples?”

  • The measure passed third reading on a 43-6 vote, with each of the chamber’s six Republican members voting in opposition and two other representatives excused

  • While the Hawaii Marriage Equality Act of 2013 explicitly legalized same-sex marriage in the state, the U.S. Supreme Court’s decision to effectively overturn Roe v. Wade, as well as other decisions favorable to conservative interests, have raised concerns on the left that the court could reverse its stance on the 2015 Obergefell v. Hodges case, which affirmed the right of same-sex couples to marry

“This measure seeks to safeguard marriage equality by removing the Legislature’s authority to restrict marriage, allowing the voters of Hawaii to determine the future of marriage rights for our state,” said House Speaker Scott Saiki, who introduced the bill.

If passed, House Bill 2802, House Draft 1, would allow voters to decide whether to repeal Article I, Section 23 of the state Constitution, which states: “The Legislature shall have the power to reserve marriage to opposite-sex couples.”

The question would be posed on the 2024 General Election ballot as: “Shall the state constitution be amended to repeal the legislature’s authority to reserve marriage to opposite-sex couples?”

The measure passed third reading on a 43-6 vote, with each of the chamber’s six Republican members voting in opposition and two other representatives excused.

While the Hawaii Marriage Equality Act of 2013 explicitly legalized same-sex marriage in the state, the U.S. Supreme Court’s decision to effectively overturn Roe v. Wade, as well as other decisions favorable to conservative interests, have raised concerns on the left that the court could reverse its stance on the 2015 Obergefell v. Hodges case, which affirmed the right of same-sex couples to marry.

As the House Committee on Judiciary and Hawaiian Affairs wrote in its report on the measure, “despite the judicial pronouncement in Obergefell holding persons of the same sex may exercise the fundamental right to marry, the Supreme Court of the United States has recently taken the unprecedented step to eliminate rights the Court has previously recognized.”

As the report noted, should the high court determine that the U.S. Constitution does not, in fact, confer a right to marry for same-sex couples, the state Legislature would be vested with the authority to limit marriage under the state Constitution.

HB 2802 would effectively eliminate that mechanism for changing the law, though without a specified alternative.

The bill is supported by the Hawaii Civil Rights Commission, American Civil Liberties Union of Hawaii, Change 23 Coalition, Hawaii Health & Harm Reduction Center, Rainbow Family 808, Democratic Party of Hawaii, Stonewall Caucus of the Democratic Party of Hawaii, Hawaii State AFL-CIO and individual advocates.

In testimony submitted to the committee, nearly 20 individuals, both for and against the right of same-sex couples to marry, said they opposed the bill.

“Today, we passed out of the House the first step to removing discriminatory language that should’ve never been in the constitution in the first place and unfairly excluded the LGBTQ+ community for the past 26 years,” said Rep. Adrian Tam, co-convener of the Equality Caucus.

Michael Tsai covers local and state politics for Spectrum News Hawaii. He can be reached at michael.tsai@charter.com.