Judge rules for state, says same-sex marriage in Hawaii is legal - Hawaii News Now - KGMB and KHNL

Judge rules for state, says same-sex marriage in Hawaii is legal

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HONOLULU (HawaiiNewsNow) -

A day after the Governor signed Hawai'i's Marriage Equality act into law, it has survived its first legal challenge.  A Circuit Court judge ruled against same-sex marriage opponents Thursday and denied a temporary restraining order to prevent the state from issuing marriage licenses to gay couples.

"After all the legal complexity of the court's analysis, the court will conclude that same-sex marriage in Hawai'i is legal," said Judge Karl Sakamoto.

Representative Bob McDermott sued to prevent same-sex marriages on the basis Senate Bill 1, House Draft 1, which was signed into law Wednesday, is unconstitutional.  His suit hinges on the language used in voter instructions for the 1998 constitutional amendment to "give the Legislature the power to reserve marriage to opposite-sex couples only".

McDermott's attorneys argued that even though the word "only" was never used on the actual ballot, it was the people's intent to preserve traditional marriage when 70% of voters overwhelmingly approved of the measure.

"We're not saying there's fraud we're saying there was a bait and switch here," explained McDermott's attorney, Jack Dwyer.

State Attorney General David Louie challenged the claims.

"The constitutional amendment that passed in 1998 very clearly, in its plain language, says the Legislature shall have this power," Louie said, before adding although the amendment gave lawmakers the authority to define marriage it didn't specify how to define it.

Louie said people can't just "disagree" with the Legislature and then ask the Court to rule in their favor, alleging Rep. McDermott lacked grounds to even file his suit.

"You cannot bar the Legislature from enacting laws, which is what they're trying to do," Louie said.

Judge Sakamoto did find Rep. McDermott had standing as a matter of great public importance.

He ruled the 1998 Constitutional Amendment did not give the Legislature the authority to grant same-sex marriages, but says lawmakers don't need it citing their inherent "ordinary and customary power" to enact legislation.

"The court finds the Legislature has the power to define and regulate marriage in the state of Hawai'i," Judge Sakamoto said.

Following the decision, a clearly disappointed Rep. McDermott says he did all he could.

"We tried to give a voice to the people of Hawai'i. We fell short and I guess that's my fault but we did the best we can do," Rep. McDermott said.

The Attorney General's office confirms his case hasn't been dismissed, but McDermott's lawyer says they haven't decided what their next move will be.

"I've never seen a rally like I saw at the Capitol letting people vote and that's really what this whole lawsuit was about, we wanted the people of Hawaii to have a chance to vote on this issue," said Dwyer.

Louie says the court's ruling means same-sex marriages can start December 2, 2013.

"The court found that SB 1 is Constitutional there is no reason to strike it down it is not barred it is the law of the land and it will go forward," Louie said.

"It's a good day for same-sex couples who shall have the right to marry now and they're going to have equality, so I'm very pleased with that," he added.   

Judge Sakamoto's ruling in part:

"The court believes the plain meaning is set forth in Article 1 Section 23 [the 1998 constitutional amendment] specifically it states the Legislature shall have the power to reserve marriage to opposite sex couples.  It does not mention marriage of same-sex couples.  It does not mention same-sex at all.  Accordingly, the court concludes that the plain and unambiguous language of Article 1 Section 23 is construed to empower the Legislature to reserve marriage to opposite sex couples.  It does not give the Legislature the power to constitutionally recognize marriage to same-sex couples under Article 1 Section 23."

"The people of Hawai'i did not ratify the constitutional amendment from Article 1 Section 23 to allow for the expansion of the Legislature's constitutional power there to include same-sex marriage."

"The definition of marriage can be accomplished through two means.  One was Article 1 Section 23.  There the Legislature has failed to show that it could define same-sex marriage through those means.  The second avenue is through the Legislature's ordinary and customary power as argued by the state.  In that context in looking at Article 1 Section 23, it is clear that the Legislature could reserve marriage to opposite sex couples as they have.  However, it's also clear in Article 1 Section 23 that the Legislature can choose not to exercise the power to reserve marriage to opposite sex couples."

"If the Legislature chooses not to exercise its constitutional power to reserve marriage to opposite sex couples then it is still capable of exercising its ordinary and customary power under Article 3 Section 1.  The Legislature does not need authority from Article 1, Section 23 to recognize same-sex marriage.  The Legislature already has authority under its ordinary law making power, again set forth in Article 3 Section 1."

"The court finds the Legislature has the power to define and regulate marriage in the state of Hawai'i."

"In reviewing the new bill, Senate Bill 1, under the Baehr v. Lewin, the court finds that it is in compliance with Article 1 Section 5, the equal protection law of the constitution."

"After all the legal complexity of the court's analysis, the court will conclude that same-sex marriage in Hawai'i is legal."

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