Hawaii Supreme Court to hear same sex marriage case

By Malia Zimmerman | Watchdog.org

HONOLULU – Some 1,853 of Hawaii’s 13,505 marriages held since Dec. 2, 2013, were between same sex couples.

But Hawaii’s same sex marriage law, passed by the Hawaii Legislature and signed into law by Gov. Neil Abercrombie in Nov. 2013, could come to an end if the Hawaii Supreme Court rules the law invalid.

On Dec. 18, the state’s high court will hear oral arguments in the challenge brought by Rep. Bob McDermott, a Republican in the Hawaii Legislature.

The basis of his case: Hawaii voters opposed same sex marriage in 1998 by a vote of 69.2 percent to 28.6 percent on a amendment that read: “The legislature shall have the power to reserve marriage to opposite-sex couples.”

Most voters believed they were reserving marriage to opposite-sex couples only in 1998, McDermott said, because the amendment clearly restricted the power of the Legislature on this issue, not expanded it.

Leading up to the 1998 election, the Office of Elections placed printed newspaper ads during a four-week campaign to educate the public about the meaning of the amendment, writing: “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 people spoke on this issue in 1998 in a clear voice. To ignore them is to disregard and disenfranchise their 1998 vote,” McDermott said. “I defy anyone to explain how those ballot instructions mean they can exercise the exact opposite of the will of the people regarding marriage. Who owns the government, politicians or the people?”

McDermott first filed a court challenge to the law while it was still being debated at the Legislature last November.

“Some people fail to realize that we won on two of the three issues contested in the second hearing, as to standing and the language of the amendment, respectively,” McDermott said.

A former Marine and Gulf War veteran, married for 30 years and a father of eight children, McDermott was one of the organizing forces for a coalition of citizens, politicians, businessmen and clergy who tried to stop Senate Bill 1, HD1 from passing.

Gay rights activist Kathryn Xian, who heads the Pacific Alliance to Stop Slavery, said McDermott “exemplifies institutional homophobia.”

“He (McDermott) publicly opposes the established rights and equality of a class of people and attempts to manipulate the code of law to justify his prejudice. But America is not predicated upon prejudice, but by democracy,” Xian said.

The case was brought against the state of Hawaii. Attorney General David Louie, who will defend the state throughout the litigation, did not return a call and email for comment.

Case law and precedent is on his side, McDermott claims. If he loses in Hawaii’s Supreme Court, he said he will litigate his case through the appeals process.