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Preliminary hearing held in Hawaii marriage equality case
July 26, 2012
Jackson Marriage equality Marriage Equality Trials
By Jacob Combs
The AP reports that at an initial hearing Tuesday in the Hawaii marriage equality case Jackson v. Abercrombie, lawyers for Gov. Neil Abercrombie argued that he should remain in the case as a defendant even though he agrees with the plaintiffs that the state’s ban on marriage equality is unconstitutional. District Court Judge Alan Kay also heard arguments on the merits of the case, who argue that Hawaii’s civil unions keep the state’s gay and lesbian couples from equal protection under the laws.
Hawaii Family Forum, a Christian group that Judge Kay allowed to intervene in the lawsuit as defendants after Abercrombie declined to defend the law, argued in court that the governor should not be a party to the suit because he is not the governmental officer who oversees the issuance of marriage licenses. Abercrombie’s position of simultaneously supporting the lawsuit while opposing the law puts him in a similar position to the federal government in the various DOMA cases being litigated across the country.
Kay told the participants in Tuesday’s hearing that he is leaning towards allowing Abercrombie to remain in the case as a party, although he made no official ruling on the matter. He also issued no ruling on the two sides requests for a conclusion to the case without further oral argument since the material facts of the case are not disputed by the two sides.
At the hearing, Clyde Wadsworth, an attorney for Equality Hawaii and Hawaii LGBT, both of which filed friend of the court briefs in the case, noted the Hawaii case’s similarity to the Prop 8 trial in Calfornia. The Jackson case also resembles another case in Nevada, Sevcik v. Sandoval, which is challenging that state’s domestic partnership laws under the U.S. Constitution.
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21 Comments Leave a Comment
1.
Sagesse | July 26, 2012 at 9:31 am
@
2.
AnonyGrl | July 26, 2012 at 9:59 am
What would be the legal ramifications of Abercrombie staying in as a defendant? Would his lack of support push the case in favor of the plaintiffs?
3.
Larry | July 26, 2012 at 11:31 am
Maybe Abercrombie's trying to head off the issues of standing that delayed the Prop 8 case?
Any ideas why this isn't a lawsuit against DOMA as well? Admittedly, there's already a whole bunch of DOMA lawsuits in the 9th circuit already, but part of the plaintiff's complaint is that they need to be allowed to get married so they can access federal benefits like sponsoring their foreign spouse for a green card or health insurance benefits, but as long as DOMA is in place, full-fledged married couples if California (or any other state) still don't have that yet.
4.
Mark B. | July 26, 2012 at 11:43 am
<img src="http://www.mynewcarquote.us/ikea/ics.jpg"/> Hawaii is not Scotland after all, but just hope for the best of it.<img src="http://www.mynewcarquote.us/xbox/vzi.jpg"/>
5.
jpmassar | July 26, 2012 at 1:14 pm
Until they get married they would have no standing to challenge DOMA.
6.
Sean | July 27, 2012 at 7:47 am
Don't forget that Hawaii was the first state to legalize gay marriage back in 1993.
7.
Bill S. | July 27, 2012 at 10:46 am
This didn't happen. They were close…but a state constitutional amendment was ratified in the nick of time.
8.
Mike in Baltimore | July 27, 2012 at 9:41 pm
Actually, Hawai'i passed a law that was challenged in court, and the case eventually went to the Hawai'i state Supreme Court. The court remanded the case to the trial court, instructing that "in accordance with the 'strict scrutiny' standard, the burden will rest on Lewin to overcome the presumption that HRS § 572-1 [the state's marriage statute] is unconstitutional by demonstrating that it furthers compelling state interests and is narrowly drawn to avoid unnecessary abridgments of constitutional rights."
In 1996 Judge Kevin K.S. Chang of the trial court ruled that the state did not meet its evidentiary burden. It did not prove that the state had a compelling interest in denying marriage licenses to same-sex couples and even assuming that it had it did not prove that HRS § 572-1 was narrowly tailored to avoid unnecessary abridgement of constitutional rights.
On November 3, 1998, Hawai'i voters approved Amendment Two, which read "The legislature shall have the power to reserve marriage to opposite-sex couples."
In early 1999, the Hawai'i legislature did just that, and the Hawai'i SC ruled, on December 9, 1999, that the "[ ] passage of the marriage amendment placed HRS § 572-1 on new footing. The marriage amendment validated HRS § 572-1 by taking the statute out of the ambit of the equal protection clause of the Hawai'i Constitution, at least insofar as the statute, both on its face and as applied, purported to limit access to the marital status to opposite-sex couples. Accordingly, whether or not in the past it was violative of the equal protection clause in the foregoing respect, HRS § 572-1 no longer is. In light of the marriage amendment, HRS § 572-1 must be given full force and effect."
So yes, Hawai'i DID have marriage equality for a time, then it didn't. Very similar to San Francisco, all of California and parts of Oregon.
Oh, and 'the nick of time' ??
9.
Bill S. | July 27, 2012 at 10:59 pm
Same-sex marriage never went into effect in any part of Hawaii ever. Yes, after the Hawaii Supreme Court remanded the case back the trial court to re-hear it under the heightened standard, it found the anti-gay marriage law was unconstitutional, but the Supreme Court was never able to review and affirm this.
10.
Mike in Baltimore | July 28, 2012 at 9:27 pm
The comment was not that it went into effect, but that Hawai'i was the first to legalize it.
Big difference.
And still no explanation on your 'nick of time' comment? 'Nick of time' for who and for what reason?
11.
Bill S. | July 30, 2012 at 6:33 am
I am completely ignorant of how Hawaii state constitutional law works but normally a trial court (such as the one that ruled the hetero-marriage only statute unconstitutional) does not set state-wide precedent, and is usually only binding on the parties to the suit. This means at most the city or county that the clerk who was sued would have been prevented from enforcing the law, but not other counties or cities.
This is what happened in Iowa: the original trial court ruling applied only to Polk County. The decision was stayed but there was a delay of a few days in issuing this stay. During this delay, one couple did get married in Polk County. A couple years later, the Supreme Court of Iowa affirmed the ruling making equal marriage legal throughout the state, and by extension upholding this one marriage that had been conducted several years prior. So to say when same-sex marriage became "legal" in Iowa is a bit hard to define: it was legal for a couple days in one county in 2007, then blocked for 2 years, then legal throughout the state in 2009.
However, what I'm guessing happened in Hawaii was that the trial court ruling was stayed immediately as no couple ever got married. If a court order is stayed it cannot be enforced so it would be misleading to say that same-sex marriage was "legal" while the ruling was blocked, and especially to say it was legal "in Hawaii" (when the ruling would only apply to a specific city or county).
Several years later, around the time that a case would normally reach the Supreme Court of a state (or federal government), voters approved a constitutional amendment that gave authority to the state to not allow gay marriages.
There is no official definition of when something is "legalized." I would say that a more accurate definition would be the date when it is absolutely certain that same-sex marriage will be enacted — the date a law is passed with no possibility of a referendum (for example, New York legalized marriage in June but the law didn't go into effect until July), when the law passes a referendum (for example, if Maryland voters approve the law on November 6, but it won't go into effect until January 1) or when a final court decision is handed down with no possibility of appeal (if the Supreme Court of the United States were to hand down a decision affirming marriage equality nationwide, it wouldn't go into effect until 14 days later).
12.
Mike in Baltimore | July 30, 2012 at 12:26 pm
Still no explanation on your 'nick of time' comment?
'Nick of time' for who and for what reason?
13.
Bill S. | July 30, 2012 at 2:34 pm
I said that "Several years later, around the time that a case would normally reach the Supreme Court of a state (or federal government), voters approved a constitutional amendment that gave authority to the state to not allow gay marriages."
Based on how long it usually takes cases to work their way through the system, I am guessing that had the people of Hawaii waited one more election cycle the Hawaii Supreme Court would have had time to rule and it looks like they would have ruled the law limiting marriage to heterosexuals unconstitutional.
14.
Mike in Baltimore | July 31, 2012 at 12:25 pm
So your 'nick of time' comment was that the Hawai'i Supreme Court was stopped from ruling that the law limiting marriage to heterosexuals unconstitutional just in time?
Meaning you think the Hawai'i SC would have ruled, in your viewpoint, incorrectly?
15.
Bill S. | July 31, 2012 at 6:43 pm
"So your 'nick of time' comment was that the Hawai'i Supreme Court was stopped from ruling that the law limiting marriage to heterosexuals unconstitutional just in time?"
Yes.
"Meaning you think the Hawai'i SC would have ruled, in your viewpoint, incorrectly?"
Assuming that the Hawaii Supreme Court would have upheld the trial court ruling (mandating marriage for gay couples) then no they would not have ruled incorrectly imo. I don't understand where you got this conclusion from.
16.
Mike in Baltimore | July 31, 2012 at 7:33 pm
"I don't understand where you got this conclusion from."
Maybe from what you have said, "in the nick of time", and then reinforced by your "Assuming that the Hawaii Supreme Court would have upheld the trial court ruling (mandating marriage for gay couples) then no they would not have ruled incorrectly imo."
Do you REALLY think the Hawai'i state SC would not have ruled incorrectly? Or would have ruled in the only fashion they could have, but were 'saved' from ruling because the Constitutional Amendment and legislature's actions effectively made the case moot?
But back to the original question: What exactly did you mean when you wrote "in the nick of time"? For who and for what reason?
17.
Mike in Baltimore | August 1, 2012 at 2:25 am
BTW, Bill, if you don't want any of your comments to be interpreted as being BLAG-supportive, then don't write in a BLAG-style manner.
If asked a question, please succinctly respond to the question asked, not by discussing anything and everything but the question. Not responding to the question makes it appear that you are avoiding the question, and that makes it appear that you are doing BLAG's bidding.
18.
Bill S. | August 1, 2012 at 4:24 am
I really do not understand why you are haranguing me about the "nick of time." In other words, the people of Hawaii ratified the amendment just in time…had they waited any longer, the HI Supreme Court would probably have had time to rule.
It looks like the HI Supreme Court would have ruled in favor of equal marriage for gay couples…but the amendment was ratified making the case moot.
19.
Bill S. | August 1, 2012 at 4:27 am
Pointing out that Hawaii never actually "legalized" equal marriage for gay couples by any reasonable definition of the word "legalize" is not being anti-gay. While I wish Hawaii had done it, saying that as a matter of fact they had not is not "doing BLAG's bidding."
Perhaps my confusion was due to the inane quality of the question…I thought it was obvious what "in the nick of time" meant and I thought I had incorporated the answer into my previous replies in a fairly obvious way.
20.
Mike in Baltimore | August 2, 2012 at 5:00 pm
Bill?
Are you an attorney? And/or do you not understand the plain written language?
The Hawai'i Supreme Court was ready to rule that bigotry was not covered in the Hawai'i Constitution, so when the people voted to allow the legislature to impose bigotry, it was the correct decision? And just in the 'nick of time,' otherwise the Hawai'i Supreme Court would have ruled that the Hawai'i state constitution didn't allow bigotry?
Or are you of the opinion that if it's legal, it's ethical? Hint – sometimes being legal is NOT ethical. Example: Bull Connor turning the dogs loose on the peaceful demonstrators before the Civil Rights Act of 1964 was passed. That was legal, but was it ethical?
21.
Mike in Baltimore | August 5, 2012 at 5:30 pm
If the legislature passed a law making marriage equality illegal, then it was legal prior to the passage of that law.
Remember, if it has to be made illegal, it first has to be legal.
Oh, and the plain language interpretation of 'in the nick of time' means if it had happened later than it did, it would have been too late.
As to reading the language? In private contracting, the presumption is that the party who wrote the contract cannot interpret it (they can explain it, but NOT interpret it) – that privilege is left to the party who is reading it. In Federal government contracting, it is not the party that wrote the contract, NOR the party reading it, but the concept is the proper interpretation is what the 'average, knowledgeable person on the street' interprets it to be.
A few decades ago, the Pentagon was contracting for a submarine to be built. One party put in a bid that was (monetarily) MUCH lower than any of the others. The Pentagon thought something was fishy about the bid, but couldn't figure out what, and tried to disqualify the bid. Eventually, a court told the Pentagon to accept the bid, and when the submarine was presented to the Pentagon, it was totally in accordance with the blueprints, except it was about 1/12ths the size the Pentagon wanted. Using the concept of the 'average, knowledgeable person on the street' interpretation, the court ordered the Pentagon to pay for the sub, because in all the blueprints, the Pentagon could not show where they included a legend of size. Thus the contractor was free to use their own size scale, even if it didn't meet the (size) standards of what the Pentagon says it wanted, although meeting each and every other standard in the Pentagon's contract.
If you actually think marriage equality is important, then you would not have written that a constitutional amendment that led to a prohibition of marriage equality was passed 'in the nick of time'. That you did speaks mountains of your views of how events transpired in Hawai'i, and also for your professed viewpoint (honest?) that marriage equality is important.
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