Same-sex marriage battle not over yet

Same-sex marriage, or genderless marriage, is not a done deal in Hawaii, even though the Legislature passed Act 1 last fall during its special session and Gov.Neil Abercrombie signed it into law. Next year’s Legislature can amend or repeal any law, including Act 1.

This is an especially important issue in the race for governor, since Neil Abercrombie abandoned voters and refused to allow them a say despite their over- whelming participation in the special session following their overwhelming vote in favor of traditional marriage several years ago.

It is the people themselves who should decide whether marriage is an institution that supports society, or the private relationship between the individuals joined by the ceremony.

Also, the Hawaii Supreme Court has before it a case challenging the constitutionality of the Legislature’s effort to redefine marriage in state law under the current Hawaii Constitution.

State Rep. Bob McDermott, who represents House District 40 (Ewa, Ewa Beach, Ewa Gentry and Iroquois Point), filed a lawsuit during the marathon hearings in the joint committee meeting that lasted more than a week in October and November 2013. On Oct. 30, 2013, McDermott sued the governor, arguing that before the Legislature could redefine marriage, the Hawaii Constitution had to be amended by the people of Hawaii to change Article 1, Section 3, known as the Marriage Amendment, which then and now reads: "The legislature shall have the power to reserve marriage to opposite sex couples."

The trial court ruled that the Legislature did have the power to make marriage genderless in spite of the Marriage Amendment. McDermott’s case qualified for a direct appeal to the Hawaii Supreme Court, where the case is now pending. His legal argument is that the 1998 constitutional amendment, by its nature and wording, supersedes the general power of the Legislature on the issue of defining marriage.

The McDermott appeal was significant enough to prompt a three-judge panel of the U.S. 9th Circuit Court of Appeals to hold a hearing in San Francisco earlier this month in the Hawaii same-sex marriage litigation in federal court, Jackson v. Abercrombie, to consider the impact of the McDermott appeal on the federal case.

If the Hawaii Supreme Court rules that Act 1 was unconstitutional because the Legislature failed to give the people of Hawaii the opportunity to change the wording of the Hawaii Constitution, then the definition of marriage as the union of one man and one woman will once again be the law in Hawaii.

If the court decides the other way, the Legislature will still be free to propose a constitutional amendment that would allow the people of Hawaii to vote to reserve marriage to opposite-sex couples, thereby superseding Act 1.

It is important that voters hold candidates accountable and demand to know where they stand on restoring the right of Hawaii voters to define marriage as an institution of society reserved only for the union of one man and one woman.