Gov. Neil Abercrombie opposes participation by a Christian group in a court case to defend state marriage laws that restrict marriage to a man and a woman.
But Loretta Fuddy, his director of the Department of Health, says the Hawaii Family Forum should be included in one of the nation’s most important cases.
The Abercrombie administration filed the conflicting messages last week in response to the Hawaii Family Forum’s request to intervene in the case involving a lawsuit challenging the state marriage laws.
The responses underscore the surprising answers filed earlier this year to the lawsuit when the governor agreed the state marriage laws violate the U.S. Constitution and Fuddy said she would defend the statutes and ask for a dismissal of the suit.
Some legal observers wonder why Abercrombie’s administration is taking the unusual tack of both challenging and defending the marriage laws.
"I’ve never heard of a situation quite like this," says Eric Seitz, a longtime civil rights lawyer who has handled numerous cases in federal court. "Typically, as a political matter, the governor would take a position on the advice of his attorney general, and the rest of the administration would fall in line."
Natasha Jackson and Janin Kleid, who were denied a marriage license, and Gary Bradley, who has a male partner, filed the lawsuit in December.
The suit challenges Hawaii laws banning same-sex marriages as a violation of the U.S. Constitution’s due process and equal protection provisions.
The Hawaii Family Forum, a nonprofit group opposed to same-sex marriages and civil unions, is asking to intervene to defend the laws. The three plaintiffs, represented by attorney John D’Amato, filed a response opposing the intervention.
Senior U.S. District Judge Alan Kay is scheduled to hear the request April 30.
State Attorney General David Louie’s office has declined to comment on the case beyond what’s in legal documents, but announced earlier that the office would assign separate teams to represent the governor and health director.
The office said appropriate "firewalls" would be set up between the teams to ensure neither party is harmed.
The deputies representing Abercrombie are Girard Lau, the solicitor general and head of the office’s Appeals Division; Robert Nakatsuji; and Harvey Henderson, supervisor of the major-litigation unit.
They filed a 25-page response that included arguments similar to ones raised by D’Amato.
Abercrombie’s lawyers said Fuddy will "vigorously" defend the law; that she and the Hawaii Family Forum "share the same interests in defending state law"; and that allowing the group to intervene will lead to delays and add to the cost of litigation.
Deputy Attorneys General William Wynhoff, who has been with the office since 2001, and Rebecca Quinn represent Fuddy.
Their three-paragraph response said that as far as Fuddy knows, the lawsuit is the only one in the federal courts that "squarely addresses" the issue of whether a state may preserve under the U.S. Constitution a marriage between a man and a woman.
They said the issue ultimately will be decided by the U.S. Supreme Court.
The litigation, they said, is "one of the most important cases in the nation."
It is "vitally important," they said, that the judge have the "broadest, most comprehensive and best discussion" on the issue.
"Director Fuddy believes that granting the motion will further this objective," the response said.
James Hochberg, the Hawaii Family Forum’s lawyer, applauded Fuddy’s position.
"We are delighted that Director Fuddy agrees and understands how important it is for Hawaii Family Forum to participate in defending against the claims in this very important case," he said.
But he added that "it is quite strange that the governor and Director Fuddy are on opposite sides in this litigation when they are represented by the same attorney general."
D’Amato, the plaintiffs’ attorney, said he agreed with Fuddy’s lawyers that the case could have widespread impact. He said their response shows they will vigorously defend the law.
"We don’t object to a good fight," he said.
But D’Amato said the Hawaii Family Forum has not shown it has a significant interest in the case to justify its intervention.
Seitz said it appears to him that the governor is correct but that the governor and the attorney general are allowing Fuddy to take a different position "to placate critics who assert it is the duty of the state to defend its own laws."
Seitz said he doesn’t agree there is a duty "if the law is wrong and especially if it conflicts with superior federal laws."
