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Bob McDermott

HONOLULU – Oahu Circuit Judge Karl Sakamoto refused on Thursday, November 7, to issue a temporary restraining order against the Hawaii Legislature to prevent lawmakers from legalizing gay marriage.

The lawsuit, filed by Rep. Bob McDermott, a Republican, centered on a 1998 ballot issue on same-sex marriage.

Gov. Neil Abercrombie and many legislators maintain the meaning of the issue presented on the 1998 ballot gave the State Legislature the power to make all future decisions on same sex marriage, but McDermott said the adopted Constitutional Amendment, and official instructions from the Office of Elections, clearly set limits on legislative authority.

McDermott also said the people clearly “thought” they were voting on a legal definition of marriage as between opposite sexes only.

“I was there in 1998 as a member of the State House….a claim few in office today can make.  The people thought they were answering the question once and for all.  However, the horrible language that was foisted upon the people by the Senate Judiciary committee at the time left us with no choice but to accept the amendment.  This explains the mess we are in today,“ McDermott said.

The 1998 amendment reads: The legislature shall have the power to reserve marriage to opposite-sex couples.  On November 3, 1998, Hawaii voters approved the amendment by a vote of 69.2–28.6%, and the state legislature exercised its power to ban same-sex marriage.

However, McDermott notes the people were told by the Office of Elections in an aggressive 4-week campaign that the meaning of the amendment was:

Meaning of a Yes Vote: A “yes” vote would add a new provision to the constitution that would give the Legislature the power to reserve marriage to opposite-sex couples only.  The Legislature could then pass a law that would limit marriage to a man and a woman, overturning the recent Supreme Court decision regarding same-sex marriage.

“The point here is that the people thought they were voting on reserving marriage to opposite-sex couples only,” Mcdermott said.

Sakamoto said in court Thursday that the plaintiffs could return to court once the legislation is passed.
The Senate has passed Senate Bill 1, which legalizes gay marriage in Hawaii. A different version passed the House yesterday on second reading by a vote of 30-18 with three absent.
The Senate and House still need to agree on a final version of the bill before it can be sent to the governor for his signature.