A state circuit judge Thursday declined to stop a marriage equality bill from becoming law but appeared open to hearing whether expanding marriage to gay couples violates the state Constitution.
Judge Karl Sakamoto rejected a request by state Rep. Bob McDermott for a temporary restraining order to prevent Gov. Neil Abercrombie from signing a bill into law and the state from issuing marriage licenses to gay couples.
The House is expected to take a final vote today on the bill and send it back to the state Senate for review. Sakamoto ruled that McDermott’s challenge was both premature and contrary to the separation of powers between the judicial, legislative and executive branches of government.
But if marriage equality does become law, Sakamoto would hear McDermott’s claim that voters thought they had prohibited gay marriage in 1998 when they overwhelmingly approved a constitutional amendment that gave the Legislature the power to define marriage as between a man and a woman.
The Legislature had determined at the time that gay marriage was a fundamental policy issue for lawmakers — not the courts — and indicated that lawmakers might one day be open to same-sex marriage. Voters, however, were given ballot instructions that stated that the constitutional amendment would empower the Legislature to restrict marriage to heterosexual couples only.
Ordinarily, Sakamoto said, the courts would look to the legislative intent to interpret a law.
"But the uniqueness of the issue arises from the process of a constitutional amendment being ratified, which involves the ratification by the people of Hawaii," the judge said. "Now, in ratifying the bill, the people of Hawaii — their intent — can somewhat be determined by the information they were given, the questions they were given to vote upon.
"And when you look at that portion of what the voters were given, it was narrowly construed to be an issue about whether marriage would be restricted to opposite-sex marriage."
Sakamoto asked how the court can determine whether voters, acting on limited information, knew in 1998 that they were also giving the Legislature the constitutional ability to expand marriage to include same-sex couples.
McDermott and religious conservatives who have joined his legal challenge want the public to vote again on whether to preserve traditional marriage.
"We will be back the moment it is signed and challenge the constitutionality," McDermott (R, Ewa Beach-Iroquois Point) said after the judge’s ruling.
McDermott contends 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 — and has had that power all along — 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 behind the 1998 constitutional amendment plainly 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.
"The claim that it was somehow sold by the state to the people of Hawaii on a false basis we flat out disagree with," Louie said. "We think that’s untrue and false."
Louie noted that other states have approved constitutional amendments that reserve marriage to heterosexual couples.
"We did not do that here in Hawaii. It was very clear we did not do that," he said. "The constitutional amendment said we’re going to give the power to the Legislature."
Louie also disputed claims by McDermott and others that they would suffer irreparable harm if gay couples were able to marry.
"People say, ‘Well, I’m going to be harmed because somebody else gets married,’" he said. "Well, you’re not having to marry these people. You may disagree with that, but you are not being harmed, in my judgment."
