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Judge says he will hear challenge if Hawaii legalizes gay marriage

By Star-Advertiser staff

POSTED: 10:39 a.m. HST, Nov 07, 2013

Circuit Court Judge Karl Sakamoto today rejected a request by a state House Republican for a temporary restraining order to prevent Gov. Neil Abercrombie from signing a marriage equality law and the state from issuing marriage licenses to gay couples.

But Sakamoto said he would hear a challenge if the state Legislature passes and Abercrombie signs a law allowing gay marriage.

Sakamoto cited the unique context of a 1998 constitutional amendment that gave the Legislature the power to reserve marriage to heterosexual couples. The judge 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.

Sakamoto said the question is whether it is unconstitutional, because of the 1998 vote, for the Legislature to expand marriage beyond heterosexual couples.

State Rep. Bob McDermott, a Republican who opposes gay marriage, and others have filed a lawsuit to challenge the state's ability to issue marriage licenses if a marriage equality bill becomes law after a special session.

Under a bill pending before the House for a vote on Friday, gay couples could marry as soon as Dec. 2.

McDermott said the public should vote again on whether to preserve traditional marriage.

"We will be back the moment it is signed and challenge the constitutionality," McDermott said after the judge's ruling today.

McDermott said that what voters were told and what they thought they voted on in 1998 "trumps all the lawyer fancy footwork, and that's what we're going to try and get at."

State Attorney General David Louie said the Legislature has the clear authority to approve same-sex marriage independent of the 1998 constitutional amendment.

"I firmly believe that the Legislature has the constitutional authority to do this, the Legislature has the constitutional power to do this, and that there won't be a problem," Louie told reporters.

But Louie also said that the legislative history before the 1998 vote clearly shows that the Legislature left open the possibility that it would consider same-sex marriage in the future, as lawmakers are doing now in special session.

The 1998 constitutional amendment was in response to a state Supreme Court ruling in 1993 that held that denying gay couples marriage licenses was a violation of equal protection under the state Constitution.

The 1998 vote essentially took the power from the courts and transferred it to the Legislature by ratification of the constitutional amendment.

Sakamoto cited the separation of powers between the judiciary, the legislative and the executive branches of government for denying the temporary restraining order.

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