My testimony on HB 2802
Hawaii needs to remove this toxic stain from its state constitution
Hawaii’s legislature is considering a proposed Constitutional Amendment to remove an amendment to its state constitution outlawing same-sex marriage. The legislature and the voters passed this amendment in 1998 as a reactionary backlash to the Hawaii Supreme Court’s decision in Baehr v. Lewin, a case brought in 1990, in which the Court determined that denying same-sex couples marriage licenses ran afoul of the state constitution’s equal protection clause.
My testimony appears below. All the testimony (for and against) can be found here.
Chair Tarnas, Vice Chair Takayama, and members of the Judiciary and Hawaiian Affairs Committee,
I submit this testimony in support of HB 2802, PROPOSING AN AMENDMENT TO ARTICLE I, SECTION 23, OF THE HAWAII CONSTITUTION RELATING TO MARRIAGE.
Section 23, Article I of the Hawaii State Constitution is the only provision in our Bill of Rights designed and adopted to take away rights rather than recognize or grant rights. It’s the only provision in our state constitution designed and adopted to target and discriminate against a minority of our population, in this case, members of our LGBTQ+ community. It also stands in stark opposition to the ruling of the United Supreme Court in Obergefell v. Hodges, 576 U.S. 644 (2015) that overturned state constitutional provisions and statutes that prohibited same-sex marriage as a violation of the equal protection clause of the Fourteenth Amendment to the United States Constitution, exactly what Section 23 was proposed and adopted to do, and did.
I had the privilege of serving as the elected Prosecuting Attorney for the County of Kauai from 2012 until late 2021. Before that, I served as a Deputy County Attorney, and as a Deputy Prosecutor on Kauai. In all my time working in law enforcement on the Garden Island, a time I will cherish for the rest of my life, I came to believe that the strength of our community arose from its families. Kauai’s families would not be so strong if its people were not free to form family units with the people they love.
I also had the good fortune to serve as Law Clerk to Judge Daniel Foley of Hawaii’s Intermediate Court of Appeals from 2006-2008. One of the primary reasons I was elated when Judge Foley offered me my clerkship in 2005 was because I knew he was plaintiff’s counsel in Baehr v. Lewin, a case with which you are all surely familiar. He was on the right side of history, just as you all have the chance to be on the right side of history by helping to rid Hawaii’s Constitution of this dark stain.
Before I came to Hawaii I worked first as a paralegal and then as an attorney in the City of Boston’s legal department. I was in my office at Boston City Hall on May 17, 2004, two months before I took my first bar exam, when the Massachusetts Supreme Judicial Court issued its decision in Goodridge v. Department of Public Health, which legalized same-sex marriage in the Commonwealth of Massachusetts. I was proud to help (in a supporting role) the City’s legal team fight back the many last-minute challenges to the ruling and it was one of the most special days in my life to be at City Hall on that day when the first same-sex marriage licenses were issued by the City Clerk. I will never forget the joy, the relief, and the satisfaction that came from seeing first hand how the long arc of the universe sometimes does indeed bend towards justice.
In looking back at the sordid history of how Section 23 became a part of Hawaii’s Constitution, it is clear that it embodied the worst and most craven impulses of our politics. The Hawaii legislature took significant steps toward addressing it in 2013 when Hawaii finally enacted a law allowing same-sex couples to marry within the state. You all have the opportunity to help finish that admirable start and finally remedy that shameful remnant of the past by giving Hawaii’s voters the opportunity to vote once more - this time to vote FOR civil rights.
Please pass HB 2802
Respectfully submitted,
Justin F. Kollar