Challenge of State Law Raises Key Constitutional Question

By Kobayashi, Ken | Honolulu Star - Advertiser, June 27, 2013 | Go to article overview

Challenge of State Law Raises Key Constitutional Question


Kobayashi, Ken, Honolulu Star - Advertiser


A federal lawsuit challenging Hawaii laws reserving marriage for heterosexual couples could provide the U.S. Supreme Court a chance to definitively rule on whether same-sex couples have a constitutional right to marriage.

Gay marriage advocates hailed the two Supreme Court decisions Wednesday as a significant step toward marriage equality, but the justices did not rule on the fundamental issue of whether gay and lesbian couples can marry.

Lawyers representing the plaintiffs in the Hawaii case say some of the language in one of the rulings bolsters their chances of persuading federal appeals judges to overturn the state's ban on same-sex marriages.

The federal lawsuit maintains that Hawaii marriage laws violate gay couples' rights under the U.S. Constitution.

The lawsuit was thrown out by Senior U.S. District Judge Alan Kay last year, but the Hawaii case and a similar Nevada lawsuit are pending before the 9th U.S. Circuit Court of Appeals. They will be heard at the same time, but were suspended pending the high court rulings, according to John D'Amato, lawyer for the three plaintiffs in the Hawaii lawsuit: Natasha Jackson, Janin Kleid and Gary Bradley.

Opening briefs are due later this year and an appeals court ruling isn't expected until next year at the earliest.

The losing side is expected to ask the Supreme Court to review the appeals court decision, which might place the constitutional issue of same-sex marriages directly before the justices.

Legalization of same-sex marriages here would end the Hawaii court case, rendering it moot.

But the Hawaii and Nevada challenges have progressed the farthest in the federal court system and would be on track to be the first to present the issue to the Supreme Court, D'Amato said.

The Hawaii case features the unusual dual positions of Gov. Neil Abercrombie, who favors the right to same-sex marriages, and Health Director Loretta Fuddy, who defends the state's marriage laws.

In a statement, Abercrombie said he is "encouraged" that the language in one of Wednesday's rulings supports his position that the "U.S. Constitution's Equal Protection Clause requires same-sex marriage in all states, including Hawaii."

Fuddy said in a statement she respects the high court's rulings and is reviewing them to determine "what impact, if any," the decisions will have on the Hawaii case.

"We will continue to defend and uphold the Constitution and the laws of the state of Hawaii," she said.

Abercrombie and Fuddy are represented by two separate team of deputies from the Attorney General's Office.

One of the two landmark Supreme Court rulings struck down the Defense of Marriage Act's provision that denies federal tax, pension and other benefits to legally married gay couples in about a dozen states that recognize such marriages.

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