Hawaii’s approved same-sex marriage bill, which Gov. Neil Abercrombie is slated to sign Wednesday, is likely to face litigation Thursday to stop it from taking effect.
Over the last few weeks as the Legislature debated SB1 -- which passed through the Senate 19 to 4 on Tuesday afternoon -- the Honolulu Capitol rotunda was crowded not only with cheering supporters of gay marriage, but opponents who chanted “Let the People Vote” and “Let the People Decide.”
Among them was Hawaii Rep. Bob McDermott. The congressman has filed a lawsuit against Abercrombie claiming that same-sex marriage cannot be legalized until a court rules on the meaning of a constitutional amendment passed in 1998 about gay marriage.
The online court docket shows a motion dated for Thursday asking for a temporary restraining order to be put in place on SB1.
In 1998, Hawaii voters approved this constitutional amendment: “The Legislature shall have the power to reserve marriage to opposite-sex couples.” The ballot measure passed with a nearly 70% majority.
Hawaii Atty. Gen. David Louie has said that the Legislature has the right to pass a same-sex marriage bill. The amendment gave the Legislature the power to prohibit same-sex marriages, but also did not ban them from approving gay marriage, Louie said.
But opponents argue that the amendment conflicts with the bill the Legislature passed.
“We’re going to go to court and ask for a temporary restraining order,” McDermott, who filed the lawsuit, said in televised remarks. “This is what voters were told in '98 -- that marriage would be reserved to opposite-sex couples.”
In response to questions about the legality of the same-sex marriage bill, Louie filed a formal opinion in October, writing that the 1998 amendment "does not compel the Legislature to limit marriages to one man and one woman; it gives the Legislature the option to do so."
David Codell, visiting legal director of the Williams Institute at the UCLA School of Law, seemed to agree with Louie, telling the Los Angeles Times that "there appears to be no merit whatsoever to the argument” that the 1998 amendment limits the Legislature’s power from allowing same-sex couples to marry."
McDermott contends that the issue of gay marriage needs to return to the people for a vote.
Last week, the same plaintiffs asked for a temporary restraining order, but circuit court Judge Karl Sakamoto ruled Thursday that that action would be premature.
However, the judge indicated "we can come back and he would clear his calendar" to hear the substance of the case, attorney Jack Dwyer told the Los Angeles Times in a telephone interview last week.
Margaret Russell, a law professor at Santa Clara University, told the Los Angeles Times that she thinks it's unlikely a judge would grant a restraining order because the plaintiffs would have to prove irreparable harm caused by the law.
Hawaii will become the 15th state to legalize gay marriage after the governor signs the bill. Couples would be able to marry as early as Dec. 2. Momentum in the gay rights movement picked up after the U.S. Supreme Court struck down parts of the Defense of Marriage Act in June.