Linda Lingle's Faux-Constitutionalism

On Tuesday, Hawaii's Governor, Linda Lingle, vetoed a bill which would have legalized civil unions in the Aloha State. Governor Lingle's stated rationale for vetoing civil unions -- protecting the democratic process enshrined in Hawaii's Constitution --doesn't hold water.

Governor Lingle should come clean: Her veto was a policy call, pure and simple, and her faux-constitutionalism is a cop-out. The Governor should not hide behind her deeply flawed procedural argument. She owes it to the people of Hawaii to honestly explain the policy reasons behind her veto.

Earlier this year, the Hawaii State Legislature passed HB 444, which would legalize civil unions in Hawaii. On July 6th, Governor Lingle vetoed HB 444 on the grounds that, "[T]his issue is of such significant societal importance that it deserves to be decided directly by all the people of Hawaii."

Lingle argues that structural constitutional concerns dictated her decision: "our[] . . . system of representative government . . . recognizes that, from time to time, there are issues that require the reflection, collective wisdom and consent of the people and reserves to them the right to directly decide those matters. This is one such issue."

There is one problem: Hawaii's Constitution doesn't support Lingle's faux-constitutionalism.

In 1998, Hawaii's voters amended their state Constitution to read, "The legislature shall have the power to reserve marriage to opposite-sex couples." This amendment followed a court ruling that same-sex couples were entitled to marry in Hawaii. Thus, Hawaii's Constitution explicitly grants the legislature the power to decide whether gay couples can marry in the Aloha state.

Since the legislature can decide matters related to marriage, it can pass legislation regarding civil unions. Governor Lingle's veto proclaimed that civil union is "essentially marriage by another name," and Hawaii's Constitution gives the legislature authority to restrict marriage to heterosexual couples -- or not.

Had Hawaii's voters sought to restrict the legislature from recognizing civil unions (or gay marriage), they could have done so easily. The 1998 amendment adopted by the Hawaiian electorate could have defined marriage as between a man and a woman (as is the case in many other states), and could have disallowed civil unions in Hawaii. The only way to change such an amendment would have been by another constitutional plebiscite.

Then candidate Lingle recognized the legislature's authority in 2002, when she declared that, "on the issue of domestic partnerships, I have stated that if the Legislature [should] pass legislation granting certain rights I would not veto that legislation."

But yet here she is, eight years later, taking a new stance. Perhaps her newfound constitutional concerns stem from the ironic fact that she is less politically accountable than the legislature whose bill she is vetoing in the name of democracy. Unlike Hawaii's legislature (or candidate Lingle, for that matter), Governor Lingle is not facing an election. She is term limited and will leave office at the end of this year.

Instead of hiding behind faux-constitutionalism, Governor Lingle should be honest with the people of Hawaii: She vetoed HB 444 on policy grounds. The people of Hawaii deserve a real debate on the substance of civil unions, not an unpersuasive exercise in faux-constitutionalism.