A state House Republican has asked for a temporary restraining order to block Gov. Neil Abercrombie from signing a same-sex marriage bill into law and prevent the state from issuing marriage licenses to gay couples.
Circuit Judge Karl Sakamoto has set a hearing for Thursday on the request, which raises separation of powers issues between the branches of government.
Abercrombie called the state Legislature into special session to consider same-sex marriage. The state Senate approved a bill on Wednesday that would allow gay couples to marry starting Nov. 18, and the state House is holding a public hearing on the bill.
Rep. Bob McDermott (R, Ewa Beach-Iroquois Point), who opposes gay marriage, has been joined in his challenge by Garret Hashimoto, state chairman of the Hawaii Christian Coalition; William Kumia, a pastor; and David Langdon, an estate genealogist.
McDermott and others argue that a 1998 constitutional amendment gave the Legislature the power to define marriage as between a man and a woman, so if the Legislature wants to change that, another constitutional amendment would have to go before voters.
"It’s clear that the Legislature chose to do exactly what the people told them in the Constitution it should do," said Jack Dwyer, an attorney representing McDermott and the others. "And if the Legislature wants to do anything else, it better go back to the people and let them vote."
Attorney General David Louie has said that the Legislature has clear authority to approve a marriage equality bill. The 1998 amendment was in response to a 1993 state Supreme Court ruling which held that denying gay couples marriage licenses was a violation of equal protection, essentially shifting the power to define marriage from the courts to the Legislature.
A spokeswoman said Saturday that Louie considers the legal challenge "completely without merit" because it would encroach on legislative and executive powers. Along with Abercrombie, the suit names key House and Senate leaders.
The request for the temporary restraining order — filed on Friday — contends that McDermott and others will suffer irreparable injury from same-sex marriage, but prefaces the claim with an acknowledgement that their arguments, because of "political correctness," might be criticized as homophobic.
The challenge claims that the same-sex marriage bill will become "a hammer in the hands of activists to force the practice of homosexuality and other behaviors, such as cross-dressing and transsexuality, as norms in Hawaiian society and appropriate behavior."
