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Lawsuit fails to stop Hawaii legislature from passing gay marriage legislation

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.

Short URL: http://www.hawaiireporter.com/?p=463721

38 Comments for “Lawsuit fails to stop Hawaii legislature from passing gay marriage legislation”

  1. Stay tuned. If the judge issues a TRO next week (if Abercrombie signs the bill), it means he thinks that there is sufficient evidence that the people were deliberately misled on the 1998 ballot and all of this year's special session has been unconstitutional. That could mean 3 to 4 years in court.

  2. Keith Rollman---put your underwear back on and go wash your hands. It's not going to happen. Stop trying to maintain power and privileges just for yourself.

  3. MR Rollman is a dying breed. The whole world is changing and the only places going backward or at a half tare the islamic states and commie russia. Africa is a total mess, but re marriage the influence of Islam is all over and the only nation with equal marriage is RSA, t

  4. Why don't you two sober up and read the story, and then get back to us.

    • I'm sober and can read.Why are you so concerned about 1998? Are you dyslexic?Agnostic?Insomniac staying up
      wondering if you were misled to believe in evolution?Your Facebook is very revealing of who you are.If you're still
      confused about your own sexuality,it's ok with most of us.LOVE IS ALL YOU NEED.

      • evolution is accepted as fact by all thinking people in the advanced, western world (even catholicism accepts it!)-what the hell are you talking about? you think some invisible guy snapped his fingers and we sprang forth? come on, thats just ignorant

  5. Given the want of intellect evidenced by the "testifiers", it would come as no surprise that Hawaiian voters failed to understand the ballot question. What's amazing is that they want the people to vote again!!!

  6. McDermott is lying. It was understood among the 1998 amendment's supporters that the legislature would have the power to define marriage. On September 25, 1998, in an article entitled "The Power to Define Marriage", Bishop Francis X. DiLorenzo Of Honolulu asked the Catholics of Hawaii to help educate voters on gay marriage bill. Bishop DiLorenzo wrote at the time:

    Dear Friends in Christ,

    "Shall the Constitution of the State of Hawaii be amended to specify that the legislature shall have the power to reserve marriage to opposite sex couples?"

    On November 3, 1998, the people of Hawaii will have the opportunity to reaffirm their power to define marriage through their elected officials. By voting "yes" on the above ballot proposal, citizens hope to stop the Hawaii State Supreme Court's efforts to mandate "same-sex marriage."

    The November vote has implications not only for Hawaii, but for all the people of the United States and beyond. For without the passage of this amendment, the Hawaii court will almost surely redefine marriage. The effects of such a decision will reverberate across the country.

    With every best wish, I remain,

    Sincerely yours in Christ,

    Most Rev. Francis X. DiLorenzo
    Bishop of Honolulu

    The people (and their churches) knew they were voting to allow the legislature to decide to reserve marriage to opposite sex couples. It wasn't a worry then because the legislature was on their side. Plus McDermott's argument makes no sense - if the consitutional amendment reserved marriage to opposite couples, then there was no reason for the legislature to get involved after it was voting on by the people.

    • SB 1 meets federal requirements per Bill Clinton (Hillary's husband) when he signed DOMA in 96, & brought federal involvement into "your business" And B.Obama only stated he will not defend it, but it still lives.

      Now that he did, homosexual marriage infringes on the most important amendment, the FIRST Amendment, is the governors blatant circumvention of the democratic process. The issue of marriage has already been decided and voted on. The Hawaii State voters have already decided to define what marriage properly is. Therefore, if a change is to be made to the law, the only proper process is to follow the same procedure by which the law was enacted in the first place. BY POPULAR VOTE. Otherwise any popular vote on any issue found on a ballot is completely meaningless if 77 legislatures can subsequently change it. It defeats the purpose of voting on an issue at all.

      So it's a political issue, not a religious issue

      • Guest, your argument is false and a non-starter.

        "Same-sex marriage" does NOT "infringe" upon the First Amendment. The public is not being forced to change their religious beliefs nor is it being forced into a same-sex marriage without their consent.

        Religious conservatives merely want the "right" to discriminate against gays and lesbians.

        In regard to the democratic process: Hawaiians are free to have a public vote on anything they want, and the legislature may enact any laws they want - but the laws CANNOT violate a citizen's constitutional rights. If it does, the laws will be tested in court.

        This is basic civics and law. It's all democratic.

      • "......merely want the "right" to discriminate..."

        Just like B.O.'s 2008 inaguration for The Human Rights Campaign, the nation's largest gay rights organization, was a huge opportunity to showcase how shockingly bigoted they are about Pastor Warren's opposition to gay marriage is a sign of intolerance.
        "We feel a deep level of disrespect when one of the architects and promoters of an anti-gay agenda is given the prominence and the pulpit of your historic nomination," the group said in a letter to Obama, asking him to reconsider.

        Since then LGBT's have discriminated against churchs. And your media bed-buddies are in on it.

      • sorry bigot, the mindless masses including yourself dont get to vote on rights-oh you rednecks do make me laugh

  7. [...] lawsuit to stop Hawaii Gov. Neil Abercrombie from signing the marriage equality bill has been slapped down. The lawsuit, filed by Rep. Bob McDermott, a Republican, centered on a 1998 ballot issue on [...]

  8. Homosexuality goes against the social norms of every single culture that has ever existed. History proves that every time the radical homosexual agenda is forced onto the majority, a right-wing backlash occurs. The radical homosexual agenda of the Weimar Republic produced Hitler and WWII.

    • Not against the social norms of the culture you love in now though.
      By the way slavery was a norm until fairly recently. Inequality for women the same. But I'm certain that you don't consider the longevity and scope of such sentiments as an argument in their favor.
      And if you wish to join Hitler's side on the issue of gay people, I hope you remember how that turned out in the end for the "right-wingers".

    • Chris, no, dumdum, many cultures had same sex unions and gays even ruled in Sparta and Greece-stop lying-you look retarded when you do that

  9. 1998
    "The LEGISLATURE shall have the power...."
    "the state LEGISLATURE exercised its power...."
    "A 'yes' vote would add a new provision to the constitution that would GIVE THE LEGISLATURE the power...."
    "The LEGISLATURE COULD then pass a law that would limit marriage to a man and a woman..."

    2013
    The LEGISLATURE exercises the power.
    Voters, now, have to either fake amnesia, or try to amend their constitution, yet again.

    If you do not want same-sex couples to marry, say so, in a new amendment. "Same-sex couples cannot marry in Hawaii and same-sex couples cannot ask the legislature or the courts or the people for the same right different-sex couples have."

    P.S. You have to give a reason - a legally rational reason. You cannot just state your preference of who you want or do not want other people to marry.

    If you want to marry someone of the other sex, you do not have to do anything at all. Go home. Try to be happy.

    Mahalo nui loa.

  10. If Hawaiians want another Prop 8 style battle for five years all the way to the US Supreme Court (SCOTUS), with all of the wasted time and resources that would entail, then go for it. That's where this is headed if the threatened lawsuit goes forward. And exactly who has standing in this case? I doubt that either the governor or the legislature will get behind it, and we all know what became of California-based Protect Marriage when the SCOTUS heard their "case." In the meantime, gay Hawaiians will remain unequal in the eyes of the law. That will be a lovely legacy as other states continue to grant marriage equality to their own citizens.

    • The standing requirements of the Case or Controversy clause are particular to federal courts only. Different state judicial systems have different rules regarding standing. I am not familiar with Hawaiian law so I do not know what their standing requirements are like.

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