At least 248 same-sex couples married this month under a new state law, and they should not have a legal challenge lingering over them, state attorneys argued Monday.
The lawyers filed court papers asking a state judge to throw out a lawsuit challenging the Marriage Equality Act that made Hawaii the 15th state to legalize same-sex marriage.
The state Legislature passed the law during a special session, clearing the way for same-sex couples to get marriage licenses starting Dec. 2.
In their request, state attorneys cited figures by Alvin Onaka, the Health Department’s state registrar, who said as of Dec. 16, 248 same-sex couples have married. He said the number could be higher because of a delay between a marriage and the couple reporting the marriage to the Health Department.
He also said 526 same-sex couples had applied for marriage licenses by Dec. 16.
"It is decidedly not in the public interest to allow this challenge to the Marriage Equality Act to linger," state lawyers said.
Circuit Judge Karl Sakamoto is scheduled to hear the request Jan. 29.
State Rep. Bob McDermott and several others challenged the law, arguing that a 1998 state constitutional amendment mandated that marriage be between opposite couples.
The amendment says, "The Legislature shall have the power to reserve marriage to opposite-sex couples."
McDermott (R, Ewa Beach-Iroquois Point) and same-sex marriage opponents contend same-sex marriages can be made legal only by another constitutional amendment approved by voters.
On Nov. 14, the day after Gov. Neil Abercrombie signed the legislation into law, Sakamoto turned down McDermott’s request for a court order that would have barred the state from issuing same-sex marriage licenses.
SAKAMOTO ruled that while the 1998 amendment allowed state lawmakers to reserve a marriage to a man and a woman, the Legislature could permit same-sex marriages under the state Constitution’s provision giving the Legislature lawmaking powers.
The judge concluded same-sex marriage in Hawaii is "legal."
McDermott filed a request Nov. 26 asking Sakamoto to reconsider, but the judge denied the request Friday.
In their motion filed Monday, state lawyers cited Sakamoto’s Nov. 14 ruling and said the law is clear that the Marriage Equality Act is constitutional.
"By its clear and unambiguous language, (the 1998 amendment) does not require that marriages be limited to opposite sex couples," the lawyers said. "Instead, under this section, the Legislature possesses the authority to limit marriages to opposite-sex couples, should it choose to do so."
If voters who approved the 1998 amendment thought they were voting for an outright ban on same-sex marriages, that belief was "plainly mistaken," the lawyers said.
Any attempt to undermine the Marriage Equality Act, the state attorneys said, would cause Hawaii’s same-sex married couples "a real, cognizable and immediate harm."
