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December 18, 2014 Practice Points

Litigation Continues in the Aloha State

By Nick Kacprowski

On December 18, 2014, the Hawaii Supreme Court held oral arguments in McDermott v. Abercrombie, Case No. SCAP-14-0000843. McDermott is a rather unique case in that it presents a constitutional challenge to a state law authorizing same-sex marriage.

By way of background, the State of Hawaii passed the Hawaii Marriage Equality Act in December 2013. The statute reversed a prior law prohibiting same-sex marriage in Hawaii, and it authorized same-sex marriages going forward. The Marriage Equality Act followed two decades of activity on marriage equality in Hawaii, beginning with the Baehr v. Miike case filed in 1991. In 1996, after the case had already been up before the Hawaii Supreme Court and then remanded for trial, the trial court ruled that Hawaii's denial of marriage licenses to same-sex couples violated the state's constitution. In 1998, following the Baehr ruling, the legislature proposed, and the voters approved, an amendment that became Article I, Section 23 of the Hawaii Constitution. Instead of explicitly restricting same-sex marriages, the amendment gave the legislature the power to restrict marriage to only one man and one woman. Baehr was also the impetus for the U.S. Congress's Defense of Marriage Act in 1996.

The McDermott Case argued on December 18, 2014, involved a contention that the Hawaii Marriage Equality Act is unconstitutional because it violates Article I, Section 23 of the Hawaii Constitution, enacted in response to Baehr. The Amendment reads "the legislature shall have the power to reserve marriage to opposite-sex couples." McDermott was a state legislator who voted to put the proposed amendment on the ballot and voted for the 1999 law that prohibited same-sex marriages and that was passed under the authority the amendment provided. Other challengers included a voter who had voted for the amendment and a minister who argued that the Marriage Equality Act would harm him because he feared he would be forced to perform same-sex marriages against his personal beliefs. The challengers argued that the amendment was inconsistent with and prohibited the Marriage Equality Act.

The Hawaii justices' questioning focused on three issues. First, whether a legislator or an ordinary voter who each voted for a constitutional amendment had standing fifteen years later to challenge a law that is inconsistent with their interpretation of that amendment. Second, whether the amendment itself, which only states that it authorizes the legislature to pass a same-sex marriage ban, can be interpreted as prohibiting a law that authorizes same-sex marriages. Third, if the amendment is interpreted as prohibiting a law authorizing same-sex marriages, whether the amendment itself would be unconstitutional under the U.S. Constitution and recent Ninth Circuit precedent invalidating same-sex marriage bans in Nevada and Idaho. After over an hour of spirited argument and questioning, the court took the matter under advisement.

Keywords: litigation, same-sex marriage, LGBT, Hawaii, Marriage Equality Act

Nick Kacprowski is with Alston Hunt Floyd & Ing in Honolulu, Hawaii.

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