Ka Leo Hana - Fall 1997: Hawaii's Bill of Rights (insert)

Ann Feder Lee's The Hawaii State Constitution - A Reference Guide was published in 1993 by the Greenwood Publishing Group Inc. With her permission, we have reprinted her analysis of the first 6 sections of Article I, Bill of Rights of the Hawaii State Constitution. We think that the whole book is a "must read" for anyone wishing to understand the provisions in our state constitution. Several copies of the book are in circulation in our public library system.

Article I - Bill of Rights
Section 1 - Political Power
Section 2 - Rights of Individuals
Section 3 - Equality of Rights
Section 4 - Freedom of Religion, Speech, Press
The Establishment Clause
The Free Exercise Clause
The Right to Free Speech
Freedom of the Press
Section 5 - Due Process and Equal Protection
Due Process
Equal Protection
Section 6 - Right to Privacy

Article I
Bill of Rights
When Article I, Bill of Rights, was drafted by the 1950 convention, a number of its twenty sections included language almost identical to that found in the U.S. Constitution's Bill of Rights. Under the Organic Act, those living in the territory of Hawaii enjoyed most of the rights guaranteed by the federal Bill of Rights, and a major factor motivating Hawaii's framers to use essentially verbatim language was to ensure continuity of those rights, as interpreted by the federal courts, once statehood was achieved.
In the years since statehood, when considering the provisions in Article I, Hawaii's supreme court has often adopted the reasoning used, and the rules enunciated, by the U.S. Supreme Court. But it has not felt bound by them and has also established rules of law that are significantly different, as it explained in State v. Miyasaki (1980):
We have not hesitated to "extend the protections of the Hawaii Bill of Rights beyond those of textually parallel provisions in the Federal Bill of Rights when logic and sound regard for the purposes of those protections have so warranted." We have recognized that "the Hawaii Supreme Court, as the highest court of a sovereign state is under the obligation to construe the state constitution, not in total disregard of federal interpretations of identical language, but with reference to the wisdom of adopting those interpretations for our state." In this regard, we have on occasion preferred a fair conception of the state constitution to judicial exegesis emanating from the U.S. Supreme Court, particularly where "unexpected" decisions from the Court "have forced a serious reevaluation of ... fundamentals." We are mindful, however, "that the fundamental principle in construing a constitutional provision is to give effect to the intention of the framers and the people adopting it."

A number of important modifications have been made to Article I since statehood, although most of the original language remains intact. Voters ratified amendments proposed by both the 1968 and the 1978 conventions. These include the 1978 convention's proposal deleting what had been Section 12, protecting the right to jury service regardless of gender, based on the understanding that the provision was redundant since, in 1972, the legislature proposed and the voters approved adding an equality of rights provision to the bill of rights (Section 3). The voters at the 1978 election also approved two new sections: Section 6, "Right to Privacy," and Section 11, "Grand Jury Counsel." Legislatively proposed modifications were subsequently ratified in 1982 (see Section 10) and 1988 (see Section 13)
SECTION 1
Political Power. All political power of this State is inherent in the people and the responsibility for the exercise thereof rests with the people. All government is founded on this authority.

Unchanged substantively since statehood, this section reiterates the basic philosophy expressed in the Preamble: All political power rests in the hands of the people, and the people grant government the authority to exercise those powers delegated to it. But the section is distinctive in also emphasizing that concurrent with this inherent political power is the responsibility for its exercise.
Although no court decisions have been based specifically on this section, it helps to lay the foundation for the state supreme court's observation that " 'the fundamental principle in construing a constitutional provision is to give effect to the intention of the framers and the people adopting it' " (State v. Miyasaki, 1980).
SECTION 2
Rights of Individuals. All persons are free by nature and are equal in their inherent and inalienable rights. Among these rights are the enjoyment of life, liberty and the pursuit of happiness, and the acquiring and possessing of property. These rights cannot endure unless the people recognize their corresponding obligations and responsibilities.

Echoing the language found in the national Declaration of Independence, this section remains as it was originally written, and it elaborates on the basic concepts found in Section 1 and the Preamble. Like Section 1, it serves as a reminder that citizens have corresponding obligations and responsibilities if they are to enjoy the rights specified in the constitution. Hawaii's supreme court has found that although the exact words are not used, the rights to freedom of movement and association are encompassed by the words "inalienable rights" and "for the enjoyment of life, liberty and the pursuit of happiness" (State v. Kimball, 1972; State v. Shigematsu, 1971). In Shigematsu, the court explained that these rights are "necessary foundations to our American way of life since their absence or denial characterizes confinement and imprisonment," and that they are as equally important to our way of life as are the rights or freedoms specifically enumerated in the constitution. When considering these rights, the court added, it will balance the state's police power to regulate for the protection of society and the people's rights of freedom of movement and association.
SECTION 3
Equality of Rights. Equality of rights under the law shall not be denied or abridged by the State on account of sex. The legislature shall have the power to enforce, by appropriate legislation, the provisions of this section.

When Congress, in 1972, proposed an Equal Rights Amendment (ERA) for the U.S. Constitution, Hawaii was the first state to ratify it, with the state legislature voting favorably within the first hour after it had passed the U.S. Senate. Later that year, Hawaii voters approved (by an 87 percent affirmative vote) the legislature's proposal to add an equality of rights provision to the state constitution. Its first sentence is identical to the amendment proposed for the U.S. Constitution (which has not been ratified).
The Hawaii Supreme Court has had only two opportunities to decide cases on the basis of this section. At issue in Holdman v. Olim (1978) was a regulation requiring women to wear a bra when visiting an inmate at the state prison. The court declined to rest its decision squarely on this section, largely because it believed the "standard of review to be applied under an ERA has not been clearly formulated by judicial decision." Instead, the court opted to uphold the regulation under the equal protection clause in Section 5 and, using the test of strict scrutiny, found the regulation valid because there was a compelling state interest. The court explained that it was not prepared, even if a more stringent test were applied under Section 3, to prohibit exceptions based on physical characteristics unique to one sex. (See Section 5 below for discussion about the analysis used in equal protection cases.)
While only suggesting in Holdman that the state's equal rights provision allows exceptions based on physical characteristics unique to one sex, the court shortly thereafter specifically ruled that such exceptions were permitted. State v. Rivera (1980) involved a challenge to the rape statute. Although amended in 1979 with gender-neutral language, the statute referred only to men raping women at the time of Rivera's conviction. The court found that the pre-amendment language did not violate either the equal protection clause or Section 3 and, with respect to the latter, held that a "classification based on a physical characteristic unique to one sex is not an impermissive under- or over-inclusive classification because the differentiation is based on the unique presence of a physical characteristic in one sex and not based on an averaging of a trait or characteristic which exists in both sexes."
The second sentence of Section 3 grants the legislature the "power to enforce, by appropriate legislation, the provisions of this section." Examples of legislative action taken pursuant to this provision include amendments to various criminal, employment, and housing laws and the 1995 directive [in Hawaii Revised Statutes (Haw. Rev. Stat.) § 23] to the state revisor of statutes to "change any male or female gender term to a term which is neutral in gender when it is clear that the statute is not applicable only to members of one sex and without altering the sense, meaning, or effect of any act" in future volumes of the Hawaii Revised Statutes.
SECTION 4
Freedom of Religion, Speech, Press, Assembly and Petition. No law shall be enacted respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech or of the press or the right of the people peaceably to assemble and to petition the government for a redress of grievan

The rights specified in this section, virtually unchanged since statehood, are often referred to as "first amendment rights" because they are identical to those found in the First Amendment to the U.S. Constitution.
Except for the rights to assemble and petition, all of the provisions in this section have been the subject of judicial review. In general, Hawaii's supreme court has interpreted those clauses by balancing the rights of individuals against the interest of the government in promoting the general welfare because the rights guaranteed have not been viewed as absolute or, in other words, as totally free from governmental restrictions.
The Establishment Clause
Like its counterpart in the U.S. Bill of Rights, the first part of this section is referred to as the establishment clause and is intended to ensure separation between church and state. But unlike the federal Constitution, Hawaii's constitution includes additional related provisions that result in a more solid wall of separation. Part of Section 4 in Article VII, Taxation and Finance, states the following: "No tax shall be levied or appropriation of public money or property made, nor shall the public credit be used, directly or indirectly, except for a public purpose. No grant shall be made in violation of Section 4 of Article I of this constitution." And Section I of Article X, Education, includes this injunction: "nor shall public funds be appropriated for the support or benefit of any sectarian or private educational institution."
In Spears v. Honda (1968), Hawaii's supreme court relied primarily on Section 1 of Article X to strike down the use of public funds for public and nonpublic student bus transportation. It found the child benefit theory, used by the U.S. Supreme Court in Everson v. Board of Education of Ewing Township (1947) to uphold such a program under the First Amendment, inapplicable because the 1950 convention specifically rejected that approach when it included not only an establishment clause, but the other provisions as well.
In a later case, Koolau Baptist Church v. Department of Labor and Industrial Relations (1986), the court held that a statute requiring employers to contribute to the state's unemployment compensation fund on behalf of employees, when applied to a church, was not a violation of the establishment clause since it did not foster excessive entanglement.
Pointing to the essentially identical establishment clauses found in the Hawaii and federal constitutions, the U.S. District Court for the District of Hawaii found there is "no case law which leads to the conclusion that the Hawaii courts interpret the Hawaii Constitution differently than the federal courts interpret the United States Constitution in the limited area of Establishment Clause jurisdiction" (Cammack v. Waihee, 1987). Concluding that the purpose of a state statute establishing Good Friday as a state holiday was clearly secular, the Cammack court upheld the statute as permissible under the First Amendment.
The Free Exercise Clause
Where the Hawaii Supreme Court has confronted free exercise of religion clause challenges to state statutes, it has ruled against those arguing a violation of that right. In 1970, the court found that because there was no compulsion or coercion involved, a program for public school sex education classes did not violate the free exercise right for those who "honestly believe that exposure to certain subjects covered within those courses is sinful or that sex education must be accompanied by moral instruction" (Medeiros v. Kiyosaki). Since Medeiros, the court has been guided by the U.S. Supreme Court in determining whether there is a violation of the freedom of religion clause, and in State ex rel. Minami v. Andrews (1982), it held that requiring a license to operate a private school does not violate the right to freedom of religion. Relying on Minami, the Hawaii Intermediate Court of Appeals ruled that the state's proscription of marijuana did not violate the religious beliefs of those practicing Hindu Tantrism (State v. Blake, 1985).
When geothermal energy, a very controversial political issue in Hawaii, was challenged under the free exercise clause, the supreme court ruled in the state's favor. The decision in Dedman v. Board of Land and Natural Resources (1987) upheld the issuance of permits for geothermal energy developments on the island of Hawaii because that action did not unconstitutionally infringe on the free exercise of religion by Pele practitioners who argued that
the goddess Pele migrated to the Northwestern Hawaiian Islands from Tahiti. She then moved down the island chain until she reached the island of Hawaii where she lives today. Areas in the island chain where she attempted to establish herself are considered sacred [and] [d]evelopment of geothermal resources in the area ... will impinge on their right to freely exercise their religion.

Dedman has been criticized, however, on the grounds that it is based on traditional reasoning, which is inappropriate in nontraditional sacredsite claims made by native American Indians and native Hawaiians, and which may "improperly deny claimants the full first amendment protections that they deserve."
The Right to Free Speech
Hawaii's supreme court takes the position that First Amendment protections are not absolute and there are situations where speech may justifiably be suppressed (State v. Bloss, 1981). The court has recognized that there is a distinction between speech and conduct and that certain conduct is not protected. It has stated that any other conclusion would mean there is a limitless variety of conduct that can be labeled speech just because the conduct was intended to express an idea, a concept specifically rejected not only by the U.S. Supreme Court, but by Hawaii's high court as well (Kleinjans v. Lombardi, 1970).
The court has also distinguished commercial speech from other forms of speech. In State v. Bloss (1981), it explained that while commercial speech enjoys protection under the right to free speech, it is given lesser protection than are other forms of expression. Nevertheless, an ordinance prohibiting distribution of handbills was an invalid regulation of commercial speech. One year later, this was reaffirmed in State v. Hawkins (1982). Although the right to free speech is meant to limit the government, there are situations where that right will be protected even if it is exercised on private property. But distribution of leaflets and other expressions of anti-abortion views in the interior walkway of a hospital's main entrance is not such a situation because this private property is not traditionally associated with the right to free speech (Estes v. Kapiolani Women's and Children's Medical Center, 1990).
Two recent free speech decisions, one by the U.S. district court and one by the U.S. Court of Appeals for the Ninth Circuit, are noteworthy because of their potential impact on politics in the state. An ordinance banning outdoor political signs is unconstitutional because the ordinance was "not content-neutral and there are less drastic means available for accomplishing the legislature's purposes" (Runyon v. Fasi, (1981) (emphasis in original). A state statute forbidding public disclosure of complaints made to the State Ethics Commission violates the right to free speech (Roy v. Akamine 1991).
Following the U.S. Supreme Court's reasoning, Hawaii's high court has found that the right to free speech does not protect obscenity (State v. Manzo, 1977). However, the state is restricted from using any procedures it might want in enforcing pornography laws because of' the important relationship between the right to free speech and the right to freedom from unreasonable searches and seizures found in Article I, Section 7. In two 1981 decisions, State v. Bumanglag and State v. Furuyama, the court found that it is the judiciary, not the police, that must determine what is legitimate or illegitimate speech. Consequently, prior to any seizure of allegedly obscene material the judiciary must concur that it is obscene; until then, the materials are assumed to be protected. In these decisions the court acknowledged that it deviated from the course followed by some federal courts because it found that the suppression of illegally seized materials is the only effective sanction against infringement of the right to free speech and the right to freedom from unreasonable searches and seizures.
Seven years later, in one of its most noteworthy decisions, the court again considered the relationship between this section and another, the right to privacy found in Article I, Section 6. While concluding that the pornography statute is not overbroad or vague (and thus reaffirming Manzo), the court held in State v. Kam (1988) that the right to privacy guarantees individuals a right to view pornography in the privacy of their own home. (See Section 6 for further discussion of this case.)
Freedom of the Press
Hawaii's high court has followed the U.S. Supreme Court's guidance when considering libel actions against a newspaper publisher for allegedly defamatory statements (Tagawa v. Maui Publishing Co., 1968). In Cahill v. Hawaiian Paradise Park Corp. (1975), the court declined to deviate from that path when it held that Hawaii's freedom of the press clause does not grant more extensive privileges to the news media than those guaranteed under the First Amendment.
SECTION 5
Due Process and Equal Protection. No person shall be deprived of life, liberty or property without due process of law, nor be denied the equal Protection of the laws, nor be denied the enjoyment of the person's civil right or be discriminated against in the exercise thereof because of race, religion, sex or ancestry.

No substantive changes have been made to this section since its inclusion in the Statehood Constitution. The wording of the due process clause is identical to that found in the Fifth and Fourteenth Amendments to the U.S. Constitution, and the Hawaii equal protection clause has its counterpart in the Fourteenth Amendment.
However, this section also includes language not found in the U.S. Constitution. It specifically spells out that civil rights cannot be abridged and that discrimination based on race, religion, sex, or ancestry is illegal, making explicit what the equal protection clause implies. Section 5 embodies the "public policy of the State of Hawaii disfavoring racial discrimination" and, taken in conjunction with various statutes, shows that the "strength of this expressed public policy against racial discrimination is beyond question" (Hyatt Corp. v. Honolulu Liquor Commission, 1987).
Considered fundamental rights in our democratic system, due process and equal protection are neither easy to define nor easy to implement. The judicial rulings mentioned below highlight the fact that Hawaii's court, like other state and federal courts, has distinguished what is and what is not required by these two important constitutional provisions.
Due Process
At its core, due process both guarantees that procedures must be followed to assure fairness and justice in judicial or administrative proceedings (procedural due process) and protects against unreasonable governmental infringement on fundamental rights (substantive due process).
Although most of the rights and procedures guaranteed in the U.S. Bill of Rights have been made applicable to the states through the Fourteenth Amendment due process clause, the Hawaii Supreme Court has repeatedly stated that the state's due process protection "is not necessarily limited to that provided by the fourteenth amendment" because it "can find independent constitutional consideration of our rights under the Hawaii Constitution and is guided by the principle that '[t]he touchstone of due process is protection of the individual against arbitrary action of government.' " (State v. Bernades, 1990).
Fairness requires that there be an absence of actual bias when cases are tried, and the legal system has always aimed at preventing even a possibility of unfairness (State v. Brown, 1989). Thus, due process is intended to guarantee procedures resulting in fair trials. For example, in one of its most significant decisions, State v. Santiago (1971), the court held that allowing the introduction of prior convictions in a criminal case, in order to prove the defendant's testimony is not credible, is a violation of due process.
A more recent, and controversial, decision involved a fifteen-yearold rape victim. When she testified at the trial, a representative of a victim assistance program first sat next to her and later, while standing behind the witness chair, placed her hands on the victim's shoulders. The court, in State v. Suka (1989), concluded that because such actions were not necessary in order for the victim a continue testifying, they bolstered the victim's credibility and were thus prejudicial to the defendant, violating the due process right to a fair and impartial trial. In a footnote, the court did, however, indicate that were a younger victim accompanied by a parent or other close relative, this would be less prejudicial because it would be interpreted as giving support, rather than lending credibility.
Numerous decisions have dealt with other procedural aspects of criminal trials. For example, if the prosecution suppresses evidence favorable to an accused where that evidence is material either to the guilt or to punishment, the due process right to a fair trial is violated, regardless of' the good or bad faith of the prosecution (State v. Moriwake, 1990). Should the suppressed evidence not be material, no violation has taken place (State v. Kaiu, 1984). Nor does a violation occur when evidence is destroyed it there is no showing of bad faith on the part of the prosecution and the evidence was not favorable to the defense (State v. Matafeo, 1900).
Due process includes a right to confront witnesses (State v. Calbero, 1989), although there is no right per se to examine witnesses at a pre-trial suppression hearing (State v. Mitake, 1981). Once a defendant gives the government the names of alibi witnesses, there is a reciprocal right to obtain the names of those witnesses the government intends to call for rebutting or discrediting the alibi witnesses (State v. Davis, 1981).
As a final example of procedural due process in criminal cases, mention must be made of State v. Faafiti (1973) In that case, the court held that, while a judge must appoint an interpreter when a defendant cannot understand and speak English, the judge has the discretion whether or not to do so if a defendant has some knowledge of English and is reasonably able to converse in it. In one of those rare flashes of subtle humor incorporated into a judicial decision, the court asked, "[H]ow many of us even though educated in the United States are completely familiar with the English language?" (emphasis in original) and appended a footnote to add: "This fact is substantiated in decisions of this court and other supreme courts which show obvious grammatical errors."
Quasi-judicial hearings do not require observance of all the procedural due process rights that must be adhered to in a court of law (Sandy Beach Defense Fund v. City Council of City and County of Honolulu, 1989). But administrative convenience or even necessity cannot take precedence over the basics of due process (Yamada v. Natural Disaster Claims Commission, 1973), such as adequate notice, an opportunity to be heard, and decision making that is not based on unreasonable, arbitrary, capricious, or discriminatory considerations (Silver v. Queen's Hospital, 1981). To determine what specific procedures are required, the court will balance the private interest that will be affected; the risk of an erroneous deprivation of such interest through the procedures actually used and the probable value, if any, of additional or alternative procedural safeguards; and the governmental interest, including the burden that additional procedural safeguards entail (Medeiros v. Hawaii County Planning Commission, 1990).
With respect to substantive due process, the court has held that while the right( to work is ensured by due process (Maeda v. Amemiya, 1979), requiring the retirement of all public employees at age seventy is not a violation. Even though such a law affects an individual's freedom to work, it has a fair and substantial relationship to an important governmental interest (Daoang v. Department of Education, 1981). (The statute requiring retirement at seventy was subsequently repealed in 1984.) Over the years, the court has invalidated statutes on due process grounds because the right requires legislative enactments to provide fair warning of proscribed conduct and clear guidelines to prevent arbitrary application and enforcement (see, e.g., State v. Albano, 1984). However, in some instances, statutory provisions have withstood challenges based on vagueness (see, e.g., State v. Kameenui, 1988).
Equal Protection (Mahiai v. Suwa, 1987). It does not mean that all discrimination and classifications are impermissible. In its 1989 Sandy Beach Defense Fund decision, the court explained that "equal protection does not mandate that all laws apply with universality to all persons [for] the State 'cannot function without classifying its citizens for various purposes and treating some differently from others.' " But the court also made it clear that when the legislature does create classifications, it may not do so arbitrarily or in a capricious manner and that the classifications must be reasonably related to the purpose of the legislation.
Following the guidance of the U.S. Supreme Court, the court will evaluate a statute challenged under equal protection by using either the strict scrutiny test or the rational basis test (Sandy Beach Defense Fund). Previously, in Nagle v. Board of Education (1981), the difference between these two standards was clearly described:
Under the strict scrutiny standard, the State carries a heavy burden in arguing for the validity of a statute... court will carefully examine a statute to determine whether it furthers compelling state interests and is narrowly drawn to avoid unnecessary abridgement of constitutional rights.... As a standard for challenges review, the strict scrutiny test is applicable where equal protection challenges involve "suspect" classifications or fundamental rights. Where "suspect" classifications or fundamental rights are not at issue, this court has traditionally employed the rational basis test.... Under that test, the court essentially asks whether a statute rationally furthers a legitimate state interest.... in making this inquiry, a court will not look for empirical data in support of the statute. It will only seek to determine whether any reasonable justification can be conceived to uphold (he legislative enactment.

Where it has used the rational basis test, the court has, in some cases, found no violation of equal protection (see, e.g., Sandy Beach Defense Fund), while in other instances, it has found a violation because no rational reason existed for the classification (see, e.g., Shibuya v. Architects Hawaii Ltd., 1982).
A claim that the "right to work" is a fundamental right and that laws impinging on it ought to be examined under the strict scrutiny test has not found favor with the court. Where economic interests are concerned, it will utilize the rational basis test (Maeda v. Amemiya, 1979). The court also rejected arguments that age is a suspect category. Although the statute at issue was repealed in 1984, the court earlier upheld the requirements that public employees retire at age seventy (Daoang v. Board of Education, 1981), and that public school teachers retire at age sixty-five (Nagle v. Board of Education, 1981) as having a rational basis.
In addition, the court has declined to find that poverty is a suspect classification which requires use of the more stringent strict scrutiny standards, rather than the rational basis standard. Use of the less rigorous test led the court in Nachtwey v. Doi (1978) to conclude that equal protection was not violated by requiring indigent political candidates to obtain a prescribed percentage of' voter signatures in order to have their names placed on the ballot because there is a rational basis supporting such a requirement. However, in Joshua v. MTL (1982), the Court found that there was no rational basis for a no-fault insurance law's discriminatory effect on indigents.
In both State v. Rivera (1980) and Holdman v. Olim (1978). litigants argued that sex-based classifications were inherently suspect and required use of the strict scrutiny test because Section 5 specifically lists sex along with race, religion, and ancestry and because the constitution also includes an equality of rights provision (Section 3). The court did not agree. In Rivera, the court stated that to "withstand judicial scrutiny under the equal protection clause, a sex-based distinction 'must serve important governmental objectives and must be substantially related to achievement of those objectives.' " As it had explained in the earlier Holdman decision, this is a standard "in between" the rational basis and the strict scrutiny tests. (See also the discussion under Section 3, "Equality of Rights.")
Equal protection may be denied when a law, neutral on its face, is administered in such a way as to unjustly discriminate between persons in similar circumstances. Proof of such an allegation requires that the plaintiff satisfy a two-part test, showing (1) that the law has not been enforced against others similarly situated and (2) that the enforcement was purposefully based on an unjustifiable standard such as race, religion, or other arbitrary classification (Mahiai v. Suwa, 1987).
In two recent cases, the Hawaii Supreme Court considered the use of peremptory challenges to potential jurors and in both instances found violations of equal protection. The rule of law adopted in State v. Batson (1990) is that "whenever the prosecution so exercises its peremptory challenges as to exclude entirely from the jury all persons who are of the same ethnical minority as the defendant, and that exclusion is challenged by the defense, there will be an inference that the exclusion was racially motivated, and the prosecutor must, to the satisfaction of the court, explain his or her challenges on a non-ethnical basis.
A few months later, this rule was expanded to include gender, religion, and ancestry in addition to race. In State v. Levinson (1990), the defense attorney excluded female jurors (the defendant was accused of murdering his wife). Excluding women jurors solely because of their gender denied them equal protection, the court held, because the constitution guarantees the right to serve on a jury as a privilege of citizenship. This right cannot be taken away because of race, religion, sex, or ancestry, and when there is a prima facie case that peremptory challenges by the defense discriminate against potential jurors on one of these prohibited bases, the trial judge must require an explanation that demonstrates that the challenge is not discriminatory.
In 1991, Hawaii's statutory provisions delineating illegal employment practices were amended to include "sexual orientation" (Haw. Rev. Stat § 378-1 and § 378-2). As of the following year, only seven states had passed such legislation. When challenged in the U.S. District Court for the District of Hawaii, the case was dismissed for lack of ripeness (Voluntary Association of Religious Leaders, Churches, and Organizations v. Waihee, 1992). However, a challenge to the law's scope, possibly based on equal protection grounds, may come before the state courts in the not-too-distant future.
SECTION 6
Right to Privacy. The right of the people to privacy is recognized and shall not be infringed without the showing of a compelling state interest. The legislature shall take affirmative steps to implement this right.

The history of this section is closely tied in to what is now Section 7, "Searches, Seizures and Invasion of Privacy." Section 6 was added in 1978 with the intention of reducing confusion about the scope of new phrases -added ten years earlier to the provision on searches and seizures." As the 1978 Convention's Committee Report explained:
In 1968 the Constitution was amended to include the prohibition against unreasonable invasions of privacy, but its inclusion within a section Patterned after the Fourth Amendment right against unreasonable searches and seizures and the debate during the 1968 constitutional convention have engendered some confusion as to the extent and scope of the right. Although it appears clear that the proponents of the concept saw the right as broader than one limited to protection against invasions of privacy in criminal cases, the convention devoted most of the debate to the relationship between the proposed amendment and concern over wiretapping. This has led the Hawaii supreme court to state that the privacy right emanated front a concern over extensive use of electronic surveillance, thus limiting the right to privacy by implying that it did not encompass the concept of a right to personal autonomy....

Thus it may be unclear whether the present privacy provision [in Section 7] extends beyond the criminal area."
The 1978 convention, therefore, decided to leave the section on "Searches, Seizure and Invasion of Privacy" untouched, with the understanding that it was limited to criminal cases, but to add a new section relating to privacy in the informational and personal autonomy sense. Aware that the right of privacy has various meanings, the convention's standing committee believed it necessary to be explicit about the intended scope and nature of the new provision, and its report goes into considerable detail regarding such areas as the common law right of privacy or tort privacy, the issue of informational privacy, the right to be left alone, and the right to control highly personal and intimate affairs.
After the convention, acting as a committee of the whole, adopted the proposed new section, its report explained that the two privacy provisions were not to be construed as identical in intent. The language in Section 7, prohibiting unreasonable searches and seizures and invasion of privacy, was not to be viewed as granting fundamental rights, but rather as protecting against unreasonable searches and seizures in light of the U.S. Supreme Court's use of a reasonable expectation of privacy concept. With respect to the proposed new section, the Committee of the Whole Report stated:
By amending the Constitution to include a separate and distinct privacy right, it is the intent of your Committee to insure that privacy is treated as a Fundamental right for purposes of constitutional analysis. Privacy as used in this sense concerns the possible abuses in the use of highly personal intimate information in the hands of government or private parties but is not intended to deter the government from the legitimate compilation and dissemination of data. More importantly, this privacy concept encompasses the notion that in certain highly personal and intimate matters, the individual should be afforded freedom of choice absent a compelling state interest. This right is similar to the privacy right discussed [by the U.S. Supreme Court] in cases such as Griswold v. Connecticut, ... Eisenstadt v. Baird.... [and] Roe v. Wade,. . It is a right that, though unstated in the federal Constitution, emanates from the penumbra of several guarantees of the Bill of Rights.... By inserting clear and specific language regarding this right into the Constitution, your Committee intends to alleviate any possible confusion over the source of the right and the existence of it."

The 1978 delegates also made it clear that they did not intend to create an absolute right to privacy that could never be infringed on. However, by including language requiring a showing of a compelling state interest, the provision places a heavy burden on the government when it justifies any challenged restriction
In light of concerns that the current U.S. Supreme Court will reject the idea that a right to privacy, with respect to reproductive rights, is guaranteed under the U.S. Constitution, some in Hawaii argue that Section 6 will protect the right to abortion within the state. This argument is based on the convention's specific reference to the Roe v. Wade (1973) decision in defining the section's scope, thus indicating the framers' intent to protect a woman's right to choose. When Hawaii repealed its antiabortion law in 1970 (three years before the Roe decision), it was one of the first states to do so. Although there is a vocal lobbying effort within Hawaii for limiting or prohibiting abortion, the legislature has so far declined to reverse its earlier actions
The Hawaii Supreme Court's decisions in Madeiros v. Kiyosaki, (1970) and State v. Renfro (1975) were based on the approach taken by the U.S. Supreme Court-that is, a constitutional penumbra protected privacy from governmental intrusion. That principle, as applied in Madeiros, did not support a claim that the right of' privacy was violated by the showing of sex education films in public schools and, as applied in Renfro, did not support a claim that privacy was infringed on when the legislature proscribed the possession of marijuana for private use.
In Madeiros, the court recognized that Hawaii's citizens were afforded a specific right of privacy because of the 1968 amendment to Section 7 which added the right to be secure against invasions of privacy to the already existing "search and seizure" section. However, in 1973, those new words were narrowly interpreted as intended only to protect against extensive governmental use of electronic surveillance techniques (State v. Roy), and it was this limiting view that provided the fuel for the 1978 convention action which resulted in a new privacy section.
Not long after the separate right to privacy was added to the constitution, the Hawaii Supreme Court reviewed the convention proceedings and made a point of distinguishing Sections 6 and 7. In State v. Lester (1982), the court explained that Section 6 relates to privacy in the informational and personal autonomy sense and is concerned with possible abuses of highly personal and intimate information by government or private parties. On the other hand, Section 7 is limited to criminal cases and relates to the reasonable expectation of privacy, where privacy is considered not a fundamental right, but rather a prohibition against unreasonable searches and seizures. A few years later, in State v. Okubo (1982), the intermediate court of appeals repeated this distinction; when the supreme court affirmed Okubo, in 1984, it did so without discussing the distinction.
The court has also declared it is not bound by U.S. Supreme Court precedents since Section 6 affords a much greater scope to privacy rights than does the U.S. Constitution. As "the ultimate judicial tribunal with final, unreviewable authority to interpret and enforce the Hawaii Constitution, [it is] free to give broader privacy protection than that given by the federal constitution" (State v. Kam, 1988).
Recently the court characterized its holdings, under Section 6, as protecting at least two different kinds of interests. The first is "the individual's interest in avoiding disclosure of personal matters," while the second concerns "freely making certain kinds of important personal decisions" (McCloskey v. Honolulu Police Department, 1990).
With respect to the interest in avoiding disclosure of personal matters, Nakano v. Matayoshi (1985) raised the issue of whether financial disclosure by public employees, as mandated by county codes of ethics enacted pursuant to Article XIV of the state constitution, violates the right to privacy. In its decision. the court found that, based on the intentions expressed by the 1978 convention, the people of Hawaii have a legitimate expectation of privacy where their personal financial affairs are concerned. However, all employee of the state or one of' its political subdivisions cannot reasonably expect privacy in financial affairs to the same degree as expected by other citizens because the same convention that added the new privacy section also proposed constitutional language subjecting public employees to an ethics code.
While recognizing that the right to privacy protects the ability to make certain kinds of important decisions regarding personal autonomy, the court, in State v. Mueller (1983), refused to hold that a decision to engage in sex for hire in the privacy of one's own home is a fundamental right deserving protection. In its most recent privacy decision, the court, following a majority of the states and the U.S. Supreme Court, ruled that no reasonable expectation of privacy exists in personal bank records (State v. Klattenhoff, 1990).
However, the previous year, in State v. Rothman (1989), the court refused to follow the U.S. Supreme Court's ruling that installing pen registers-a device that allows identification of outgoing and incoming telephone numbers-was not a search requiring a warrant under the Fourth Amendment. The court noted that even if it were willing to adopt such an approach under Hawaii's search and seizure provision, it could not do so because Section 6 expressly establishes a right of privacy. Under the right, persons using telephones in Hawaii "have a reasonable expectation of privacy, with respect to the telephone numbers they call on their private lines, and with respect to the telephone numbers of calls made to them on their private lines."
Decisions in two cases have rested on the court's consideration of a "compelling state interest" as balanced against a claim of right to privacy. In its path-breaking State v. Kam (1988) decision, the court reviewed the 1978 convention proceedings and found that it clearly intended that a compelling state interest must exist before the government can intrude into certain highly personal and intimate affairs of life. The question posed in Kam was, "[W]hat should take precedence: [the] State's police power to regulate obscene material versus an individual's fundamental privacy right to have pornography at home?"
The court found it obvious "that an adult person cannot read or view pornographic material in the privacy of his or her own home if the government prosecutes the sellers of the pornography." And, since "a person has the right to view pornographic items at home, there necessarily follows a correlative right to purchase such materials for this personal use. or the underlying privacy right becomes meaningless." Because Section 6 incorporates the privacy right to read or view pornographic material in one's home, that right can only be infringed on if the state shows a compelling state interest; the state was unable to satisfy the court that there was such a compelling interest.
Significantly, the court added a footnote carefully limiting its holding. It was not reaching any conclusion as to the state's compelling interest in certain types of obscenity cases such as banning child pornography, selling pornography to minors, and showing pornography to a captive audience and regulating pornography by zoning areas for adult businesses.
In contrast to Kam is the decision in (McCloskey v. Honolulu Police Department (1990), where drug testing by the police department was upheld as serving three compelling interests: ensuring that the police officers perform their duties safely, protecting the public's safety, and preserving the integrity of the department and its ability to perform its job effectively. Although the appellant did not rely on the U.S. Constitution, the court felt it important to note that the U.S. Supreme Court "has expressly held that drug screening tests at the work place do not per se violate the fourth amendment to the federal constitution."
Section 6 mandates that the legislature take affirmative steps to implement the right to privacy. An example of legislative action in this regard can be found in the Uniform Information Practices Act (Haw. Rev. Stat. ch. 92F), where it provides that all government records are open to public inspection, but specifies exceptions such as when disclosure of governmental records would constitute a clearly unwarranted invasion of personal privacy (Haw. Rev. Stat. ch. 92F-1 3). The statute also provides that disclosure shall not constitute a clearly unwarranted invasion of personal privacy if the public interest in disclosure outweighs the privacy interests of the individual and enumerates examples of information where the individual has a significant privacy interest (i.e., information relating to one's medical, psychiatric, or psychological history) (Haw. Rev. Stat. - ch. 92F-14).

Anne Feder Lee has taught political science at universities in Ohio and Hawaii and has authored articles on governmental, political, and legal issues. Active in community affairs, she served as president of the League of Women Voters of Hawaii, as a member of the Hawaii Bicentennial Commission on the U.S. Constitution, and was reappointed to serve a second term on the State of Hawaii Pesticides Advisory Committee. She earned a doctorate in political science from Miami University.