Same-sex marriage
case returns to
top court

The state says a ruling
allowing three couples to
marry should be reversed

By Debra Barayuga
Star-Bulletin

The state attorney general has renewed a call to reverse a Circuit Court judge's 1996 ruling allowing same-sex marriages.

In a brief filed last week in the state Supreme Court, Attorney General Margery Bronster rebutted arguments raised last year by plaintiffs after voters in November approved a constitutional amendment giving the Legislature the power to reserve marriage to opposite-sex couples.

Three couples who had sued the state in 1991 for the right to marry had asked the high court to affirm Judge Kevin Chang's decision.

But the state argued that the marriage law "as currently written, is the operative law of Hawaii, and thus prohibits the issuance of marriage licenses to same-sex couples."

It said the Circuit Court's ruling should be reversed because plaintiffs did not contest the state's arguments that any law in force when a state Constitution amendment takes place shall prevail.

The law shall be given "full force and effect" once all arguments about its constitutionality are lifted, according to the brief filed by Charles Cooper, a Washington, D.C., attorney hired to handle the state's appeal.

Since the current law prevails, the Legislature need not act further, said Cynthia Quinn, the attorney general's special assistant.

The plaintiffs, represented by civil rights attorney Dan Foley, today said the amendment is not as broad as the state argues. "The constitutional amendment gave power to the Legislature to act in the future only in the area of marital status and licenses, not in benefits," Foley said.

"It's our position that rights and benefits of marriage must be extended to same-sex couples even if the Legislature in the future limits marriage to man and woman."

The high court will decide if oral arguments are needed.

The plaintiffs had argued the marriage statute violates the state Constitution's Equal Protection Clause, and asked the high court to prevent the state from denying marriage licenses solely because applicants are of the same sex.

Both Hawaii's high court and the U.S. Supreme Court have established that in deciding appeals, the courts must apply the clause as it is currently written.

The clause does not conflict with the marriage statute nor does it grant same-sex couples the right to a marriage license. Therefore, the high court does not have the authority to order the state to issue one, Cooper argued.

The state also said it is beyond the high court's scope to decide whether unwed same-sex couples are entitled to rights and benefits conferred on married couples.

The plaintiffs have argued that denying same-sex couples those rights is sex discrimination. Even so, couples cannot argue sex discrimination because the state's denial has to do with marital status, not sex, the state said.

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