BY JIM DOOLEY – Gov. Neil Abercrombie said today he is willing to appeal a Hawaii federal court’s decision that upholds the constitutionality of state law barring marriage between same-sex couples.
The court ruling was handed down by Senior U.S. District Judge Alan Kay in a 120-page decision which held that changes to the law should be enacted by the Legislature or through an amendment to the state Constitution.
The ruling came in a civil suit filed by three plaintiffs who claimed that the state law barring same sex marriages is unconstitutional.
“No same-sex couples have been married in Hawaii nor have ever had the legal right to do so,” Kay said in his ruling.
He noted that the Legislature passed a law in 1994 limiting marriages to opposite-sex couples and three years later a state constitutional amendment was passed which gave the Legislature the authority to reserve marriages to opposite-sex partners.
Those facts placed Hawaii in a position different from California, where a federal appeals court recently struck down a state constitutional amendment that outlawed same-sex marriage, Kay wrote.
The California amendment was passed after the state enacted a law permitting same-sex civil unions.
“Hawaii’s marriage amendment did not take away from same-sex couples the designation of marriage,” Kay found.
“Nationwide, citizens are engaged in a robust debate over this divisive social issue,” Kay said in his ruling.
“If the traditional institution of marriage is to be restructured, as sought by plaintiffs, it should be done by a democratically-elected legislature or the people through a constitutional amendment, not through judicial legislation that would inappropriately preempt democratic deliberation regarding whether or not to authorize same-sex marriage,” the judge wrote.
He noted that the legal landscape here is changing.
“In 2011, the legislature passed a civil unions law, affording same-sex couples the right to enter civil unions and obtain all of the state legal rights of married couples (except the title marriage). The trajectory of Hawaii’s history has been moving towards providing more rights for same-sex couples, but the legislature has not changed its definition of marriage,” Kay wrote.
“In this situation, to suddenly constitutionalize the issue of same-sex marriage ‘would short-circuit’ the legislative actions that have been taking place in Hawaii,” the judge ruled.
Abercrombie said in a news release that “respectfully disagreed” with Kay’s decision and would join the plaintiffs if they decide to appeal.
“To refuse individuals the right to marry on the basis of sexual orientation or gender is discrimination in light of our civil unions law. For me this is about fairness and equality,” Abercrombie said.
Although the governor supports the right of same-sex partners to marry, that position put him at odds with his own Health Department, which enforces the ban on marriages and defended the ban in the suit heard by Kay.
The Hawaii Family Forum, which joined the Health Department in opposing the suit, said today it was “very pleased” with Kay’s ruling.
“This is great news but the battle is not over,” the Family Forum said. “We anticipate that there will be an appeal to the 9th Circuit and ultimately to the United States Supreme Court.”