The lawsuit, filed by Republican Rep. Bob McDermott, centers on a 1998 ballot issue on same-sex marriage.
McDermott’s lawsuit hinges on whether state lawmakers can extend marriage to same-sex couples after voters in 1998 approved an amendment to Hawaii’s constitution that gave state lawmakers the power to allow marriages only between a man and a woman.
The 1998 amendment was introduced after Hawaii’s Supreme Court ruled that the state’s constitution did not prevent the issuing of marriage licenses to same-sex couples. The amendment reads: The legislature shall have the power to reserve marriage to opposite-sex couples. On November 3, 1998, Hawaii voters approved the amendment by a vote of 69.2–28.6%, and the state legislature exercised its power to ban same-sex marriage.
McDermott claims Hawiian voters clearly “thought” they were voting on a legal definition of marriage as between opposite sexes only, once and for all.
“I was there in 1998 as a member of the State House….a claim few in office today can make. The people thought they were answering the question once and for all. However, the horrible language that was foisted upon the people by the Senate Judiciary committee at the time left us with no choice but to accept the amendment. This explains the mess we are in today,“ McDermott said.
However, Hawaiian Gov. Neil Abercrombie, the state’s Attorney General, David Louie, and many legislators maintain the meaning of the issue presented on the 1998 ballot gave the State Legislature the power to make all future decisions on same sex marriage.
The Senate has passed Senate Bill 1, which would legalize same-sex marriage in Hawaii last month. A different version passed the House Wednesday on second reading. A final vote in the House is scheduled for later today.
McDermott’s suit says the adopted Constitutional Amendment, and official instructions from the Office of Elections, clearly set limits on legislative authority and those legislative actions undertaken in the current special session concerning same-sex marriage are unconstitutional. He believes that voters should return to the polls and decide on whether to allow same-sex couples to marry.
In issuing his ruling, First Circuit Court Judge Karl Sakamoto cited the separation of powers between the judiciary, the legislative and the executive branches of government for denying the temporary restraining order.
But Sakamoto did note the unique context of a 1998 constitutional amendment and acknowledged that many voters might have thought at the time that the vote was narrowly meant to prohibit same-sex marriage, not give the Legislature the power to define marriage in other ways. In that light, Sakamoto said that McDermott could return to court once the legislation is passed and signed to argue those points.
McDermott has vowed to do just that.