(c) Copyright 2001 Kenneth R. Conklin, Ph.D. All rights reserved
Following are excerpts from the decision of Judge Helen Gillmor in the case of Arakaki v. State of Hawai’i, issuing a permanent injunction on September 19, 2000:
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This court is mindful that ours is a political system that strives to govern its citizens as individuals rather than as groups. The Supreme Court's brightest moments have affirmed this idea, see e.g., Brown v. Board of Education (1954) ... Bolling v. Sharpe (1954) ... Cooper v. Aaron (1958) ... while its darkest moments have rejected this concept. See e.g., Dred Scott v. Sandford (1856) (denying citizenship to blacks), Plessy v. Ferguson (1896) (permitting separate train cars for blacks and whites), Bradwell v. Illinois (1872) (upholding state law that barred women from practicing law), Korematsu v. United States (1944) (upholding the internment of persons of Japanese ancestry during World War II). [page 3]
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The mandate that OHA Trustees be Hawaiian violates the Fourteenth Amendment to the United States Constitution. .... Because the Equal Protection Clause prohibits invidious discrimination on the basis of race, the Court holds that the State's scheme prohibiting non-Hawaiians from serving in a particular public office is unconstitutional. [page 16]
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The mandate that OHA Trustees be Hawaiian violates the Fifteenth Amendment to the United States Constitution and the Voting Rights Act. [page 20]
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... a state act that has the effect of limiting the class of candidates is an abridgment of the right to vote. When the state limits the class of candidates based on their race, such an abridgment violates Section 2 of the Voting Rights Act. [page 25]
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OHA, a state agency, is not itself a quasi-sovereign, nor does it participate in the governance of a quasi-sovereign. [footnote: This court does not address whether Congress may, through appropriate legislation, recognize Hawaiians in a manner similar to the Indian tribes. The validity of such an act, were it to occur, and its effects, are not questions before this Court.] Rice, therefore, explains that Mancari does not apply to the State mandate that OHA trustees be Hawaiian. [page 28]
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Mancari does not permit limitations or preferences based on race. [page 32]
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The Court further echoes the conclusions of Rice that the State's mandate is based on race rather than political designations. [page 35]
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In the instant case, even if the Court were to conclude that the State of Hawaii imposes additional qualifications not listed in HRS $ 13D-2, barring a candidate from the ballot as a result of that candidate's public comments would strike a blow to one of our system's most fundamental principles -- the right to robust public debate on matters of self-government ... [page 37]
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Conclusion: The State of Hawaii's chosen means to effectuate its goal of bettering the conditions and restoring and maintaining the culture of Hawaiians, while laudable, is in discord with the Fourteenth and Fifteenth Amendments to the United States Constitution as well as the Voting Rights Act. [footnote: The Office of Hawaiian Affairs has argued that, were this Court to conclude that the State of Hawaii may not constitutionally exclude non-Hawaiians from serving as OHA trustees, the validity of OHA itself would be called into question. This order, however, is limited to the specific question put before the Court and goes no further. Whether OHA, a state agency aimed at the betterment of Hawaiians as well as the general public, is constitutional, is not a question before this Court.] As Justice Scalia stated in his concurrence in Adarand, "to pursue the concept of racial entitlement -- even for the most admirable and benign of purposes -- is to reinforce and preserve for future mischief the way of thinking that produced race slavery, race privilege and race hatred." [page 38]
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(c) Copyright 2001 Kenneth R. Conklin, Ph.D. All rights reserved