Appeals court calls for dismissal of gay marriage suit against state

The 9th U.S. Circuit Court of Appeals has ruled that Hawaii’s marriage equality law makes a pending federal lawsuit moot, and instructed the lower court to dismiss the case.

The high court issued the order in Jackson et al. v. Abercrombie, in which Nata­sha N. Jackson and Janin Kleid challenged Hawaii’s old marriage law that excluded same-sex couples.

While the case was making its way through the courts, legislators were called into special session by Gov. Neil Abercrombie and passed the Marriage Equality Act. Hawaii legalized same-sex marriage as of Dec. 2.

"Plaintiffs have subsequently married their same-sex partners," the 9th Circuit noted in its order dated Oct. 10. "Because (the Marriage Equality Act) gave plaintiffs ‘everything they hoped to achieve by their lawsuit,’ this case is now moot."

The 9th Circuit vacated, or canceled, the district court’s judgment against the same-sex couple, and sent the case back to the lower court with instructions to dimiss it.

"We are glad to see the District Court judgment vacated, particularly in light of the 9th Circuit’s decisions striking down discriminatory marriage laws in Idaho and Nevada," said Clyde J. Wadsworth, co-counsel for the plaintiff-appellants and an attorney with Alston Hunt Floyd & Ing.

Jackson and Kleid had applied at the Department of Health for a license to marry in November 2011 and were turned away, so they filed a lawsuit saying their constitutional rights to due process and equal protection were being violated. Gary Bradley, who wanted to marry a foreign national, also joined the suit.

In August 2012, Senior U.S. District Judge Alan Kay upheld the Hawaii law banning same-sex marriage and threw out their challenge. Hawaii Family Forum, a Christian organization, joined the case as an intervenor in defense of traditional marriage.

Upon appeal, Hawaii deputy attorney general Robert Naka­tsuji asked the 9th Circuit to not only find the case moot because same-sex marriage is now legal, but to vacate the district court’s judgment "so as to void any adverse consequences from the District Court’s decision."

Hawaii Family Forum argued that the 9th Circuit should hold off on ruling while legal challenges to the new marriage law were pending. Two lawsuits filed against the Marriage Equality Act were rejected at the lower court level, but Rep. Bob McDermott is appealing his case.

Asked for comment, James Hochberg, an attorney for Hawaii Family Forum, said as an intervenor, his organization cannot appeal the 9th Circuit ruling. He praised Kay’s 117-page District Court decision rejecting the Jackson lawsuit as "one of the best rulings on same-sex marriage I’ve seen." But because that ruling was vacated, it may not be cited as precedent.

"It’s as if it never existed," Hochberg said, "so it can’t be used by any other person in any other same-sex marriage case."