KITV is reporting that Circuit Court Judge Karl Sakamoto has ruled against a challenge to the recently passed Marriage Equality law in Hawaii. Sakamoto rejected State Representative Bob McDermott’s request for a temporary restraining order stopping Governor Neil Abercrombie from signing the bill. The request was initially denied because the law had not come into existence yet, and apparently one cannot request an injunction against a governor signing a bill.
McDermott has claimed that Hawaiian voters believed that they were voting to define marriage as being between a man and a woman back in 1998 when they passed a state constitutional amendment granting the legislature the power to write a law defining marriage as being whatever they decided.
McDermott claims that “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.”
The problem is, that is neither what was written nor what the voters voted on. It was not even what the voters were presented as being what they would vote on.
State Attorney General has already seen to the lawsuit and is on record saying that “We are very confident on our position. They are wrong on the facts and wrong on the law and so I don’t think they have any basis for this lawsuit.”
The question posed to the Hawaii electorate in 1998 was “Shall the Constitution of the state of Hawaii be amended to specify that the Legislature shall have the power to reserve marriage to opposite-sex couples?” and the Amendment reads specifically that “The legislature shall have the power to reserve marriage to opposite-sex couples.”
The amendment does not have anything in it preventing the passage of same-sex marriage.
Deputy Attorney General John Molay argued that McDermott and the others had no legal standing to bring the challenge due to not demonstrating that they were directly harmed by same-sex marriage.
McDermott contended that his reputation and electibility are harmed due to the legislature passing the law due to his claims in 1998 that the constitutional amendment would ban same-sex marriage. Of course, if that was something he feared, he should never have become a politician.
Another plaintiff seeking to stop the law was William Kumai, a pastor and marriage coach, who claims that he will be charged with hate crimes and sued if he refuses to counsel same-sex couples, and Garret Hashimoto, the state chairman of the Hawaii Christian Coalition, who claims that religious schools would be forced to either shut down or teach same-sex marriage.
Given that none of these have happened in the other fifteen states that have legalized same-sex marriage, those seem highly unlikely and Molay dismissed them as being “‘the sky is falling’ hypotheticals meant to generate fear rather than demonstrate concrete injuries.”
Molay also noted that the 1998 amendment and ballot question were “clear and unambiguous” in their wording, and that they do not preclude the legislature from passing a law approving same-sex marriage.
The attorneys for McDermott, Jack Dwyer and Robert Matsumoto, claim that the intent of the legislature is not at issue, but rather the intent of the voters was; however, intent can be a difficult one to argue as many who voted for the amendment in 1998 voted to take away the decision from the state Supreme Court rather than ban same-sex marriage.