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Judge refuses to block Hawaii's same-sex marriage law

By Star-Advertiser staff

LAST UPDATED: 1:19 a.m. HST, Nov 15, 2013

Circuit Court Judge Karl Sakamoto ruled against same-sex marriage opponents Thursday, refusing to issue a temporary restraining order to prevent the state from issuing marriage licenses to gay couples starting Dec. 2.

After hearing arguments for about an hour, Sakamoto said that while state Rep. Bob McDermott and others had standing to file their request to block the new marriage equality law, the state Legislature has the inherent authority to define marriage independent of a 1998 constitutional amendment that gave the Legislature the power to reserve marriage to heterosexual couples.

"After all the legal complexities of the court's analysis, the court will conclude that same-sex marriage in Hawaii is legal," Sakamoto said.

The marriage equality bill  -- known as Senate Bill 1 -- was signed into law Wednesday by Gov. Neil Abercrombie after a special session of the state Legislature.

"I'm very pleased with the court's ruling," state Attorney General David Louie told reporters. "I think the court clearly said that SB1 is constitutional. SB1 can go forward. The Legislature had the power to enact SB1 under its general powers as a Legislature."

McDermott and his attorneys did not immediately announce whether they would appeal.

"All you can do is all you can do, and that's what we tried to do today. We tried to give a voice to the people of Hawaii," McDermott told reporters. "We fell short -- and I guess that's my fault -- but we did the best we could do."

Sakamoto heard the request this morning by McDermott, a Republican who opposes gay marriage, and a group of Christians for a TRO to prevent the state from issuing marriage licenses.

In court documents filed Wednesday, the state opposed the request. Deputy Attorney General John Molay argued that McDermott and the others lack standing to bring the legal challenge because they have not demonstrated the potential for actual harm from same-sex marriage. 

McDermott (R, Ewa Beach-Iroquois Point) and the others contend the 1998 constitutional amendment approved by voters that gave the Legislature the power to reserve marriage to heterosexual couples trumps a statutory change to the law. Voters, they argue, would have to approve another constitutional amendment to expand the definition of marriage to include gay couples.

McDermott, for example, claims that his reputation and electability will suffer because he led voters to believe in 1998 that the constitutional amendment would ban same-sex marriage. William Kumia, a pastor and marriage coach, fears hate crimes and lawsuits if he refuses to counsel same-sex couples. Garret Hashimoto, state chairman of the Hawaii Christian Coalition, worries that religious schools would be forced to either teach same-sex education or close.

Molay dismissed such arguments as "'the sky is falling' hypotheticals meant to generate fear rather than demonstrate concrete injuries."

Molay also argues that the 1998 constitutional amendment was "clear and unambiguous," giving the Legislature -- and not the Supreme Court -- the power to define marriage. The constitutional amendment did not, Molay contends, preclude the Legislature from later approving same-sex marriage.

The state also defended ballot information sent to voters by the state Office of Elections at the time that stated that the constitutional amendment would give the Legislature the power to reserve marriage to heterosexual couples only. The word "only," Molay maintained, did not mean that the Legislature only had the power to reserve marriage to heterosexual couples, but could choose to regardless of the ruling by the Supreme Court.

McDermott and others zeroed in on the word "only" from the ballot information as proof of what voters intended. 

Attorneys for McDermott argued in court filings on Wednesday that the intent of the Legislature in crafting the constitutional amendment is irrelevant, because the interpretation should turn on the intent of voters who overwhelmingly ratified the amendment.

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