Tuesday, November 12, 2013


After Abercrombie’s signature, opponents will be left pleading with a judge to stop same-sex marriages in Hawaii

by Larry Geller

Can a state judge stop Hawaii from issuing marriage licenses to same-sex couples starting December 2?

Tomorrow (Wednesday) Hawaii will become the 15th state to legalize same-sex marriage. The enactment of SB1 into law will end a struggle that began 20 years ago when Hawaii’s Supreme Court became the first in the nation to give consideration to marriage equality.

Hawaii's highest court has taken a long step toward making the state the first in the country to recognize marriages between couples of the same sex, ruling that a ban on such marriages may well violate the State Constitution's prohibition against sex discrimination.

In a 3-to-1 ruling on Wednesday in a case brought by three homosexual couples, the State Supreme Court stopped short of striking down the ban, instead sending the case back to a trial court for review.

But in the majority opinion, Justice Steven H. Levinson wrote that "marriage is a basic civil right" and that "on its face and as applied," the Hawaii law "denies same-sex couples access to the marital status and its concomitant rights and benefits."

[New York Times, In Hawaii, Step Toward Legalized Gay Marriage, 5/7/1993]

In 1993, victory was so close …. And then came the backlash, and a 1998 amendment to the state constitution giving the Legislature the right to determine that marriage is between one man and one woman. Note that the Legislature never did that.

Governor Abercrombie’s signature tomorrow will settle the issue. Or will it?

Republican Rep. Bob McDermott has already taken the new law before a judge, even though it had not yet been passed.  On Thursday Circuit Judge Karl Sakamoto was asked to issue a restraining order against the legislation. He refused, saying the action was premature. McDermott could not be injured at that time because the law had not yet been passed.

There is also the question of separation of powers—a judge would not interfere with the ongoing legislative process.

But McDermott will stand before the judge again, after the Governor signs the bill into law. He will ask for an injunction to prevent the implementation of the law. Regardless of the outcome of that motion, the case will likely move forward and be heard on its merits (if there are any) in due course. Due course in the Hawaii state court system is like an indefinite sentence, it could take years.

So the immediate threat is that an injunction could prevent the state from issuing marriage licenses. How likely is that?

I’m more familiar with federal court, which would apply a four-prong test that goes something like this:  (1) Plaintiffs have to show that they will likely succeed on the merits, (2) that they will suffer irreparable harm in the absence of preliminary relief, (3) that the balance of equities tips in their favor, and (4) that the public interest would not be adversely affected by an injunction (alternatively, that an injunction would be in the public interest).

That’s the federal court, I have not had a chance to research the rule in state court.

The merits of the case would certainly hinge around what voters thought they were voting for when they passed the 1998 constitutional amendment. Were they bamboozled? The Attorney General holds that the Legislature has the power to regulate marriage even without the constitutional amendment. So they could work this out in court.

Meanwhile, I can’t see that McDermott is injured no matter who gets married. With the expanded religious exemption, it would be hard to see who could claim that they are made to do something unlawfully.

I’ll have to do some homework on the rules for injunctions in state court, and while it’s foolish for a non-attorney to anticipate how a judge might rule, it’s worth an attempt. Stay tuned.


In Hawai'i state courts, the test is a three part test:

"The modern test for interlocutory injunctive relief is threefold: (1) Is the party seeking the injunction likely to prevail on the merits? (2) Does the balance of irreparable damage favor issuance of an interlocutory injunction? (3) To the extent that the public interest is involved, does it support granting the injunction?" Penn v. Transporation Lease Hawaii, Ltd., 2. Haw.App. 272, 274 (Haw.App. 1981)

Further, they are not "elements" that have to be satisfied but "factors" that have to be have to be weighed:

"The more the balance of irreparable damage favors issuance of the injunction, the less the party seeking the injunction has to show the likelihood of his success on the merits. Likewise, the greater the probability the party seeking the injunction is likely to prevail on the merits, the less he has to show that the balance of irreparable damage favors issuance of the injunction."  Penn v. Transportation Lease Hawaii, Ltd., 2 Haw.App. 272, 276 (1981)

I fail to see any irreparable harm to anyone which raises the related issue you noted about whether McDermott has standing to bring the lawsuit. In order for a claim to be "justiciable" a party must have standing. The party must have a significant stake in the controversy.

This is a three part/element test where each element must be satisfied: A party must (1) show that he has suffered or is likely to suffer an "injury in fact"; (2) show that the injury he is suffering must be concrete and "individuated" and (3) show that the challenged action is the "cause in fact" of the injury.

I naturally fail to see how Bob McDermott would have an injury unless his theory is that but for a ban on same-sex marriage, he will not be able to control himself and marry someone of the same-sex and needs to courts immediate intervention to stop that. What's exactly again his injury? Consider the case of Allen v. Wright, 468 US 737 (1984) or even Raines v. Byrd, 117 S.Ct 2312 (1997)

There are a string of exceptions and "liberal" constructions of the requirements of standing but McDermott's ability to prosecute the matter must first meet standing requirements since without standing he cannot prevail under any set of facts.

Then there is the Political Question Doctrine announced in Baker v. Carr, 369 US 186 (1962). While the substantive legal issues in Baker have since been overruled by subsequent cases, as to the issue of whether a case is not justiciable because of the presence of a political question is still valid. If in a case, one of the factors (to follow) are present, the case will be dismissed under the political question doctrine:

(1) A "textually demonstrable constitutional commitment of the issue to a coordinate political department" (i.e. governor or legislator)

(2) A "lack of judicially discoverable and manageable standards for resolving" the case

(3) The "impossibility of deciding [the case] without an initial policy determination of a kind clearly for non-judicial discretion"

(4) The "impossibility of a court's undertaking independent resolution without expressing lack of respect due co-ordinate branches of government"

(5) An "unusual need for unquestioning adherence to a political decision already made"; and/or

(6) The potential for "embarrassment from multifarious pronouncements by various departments [executive, judicial, legislative] on one question."

In McDermott's case, several of these factors come into play. For example, the power to declare war is given to Congress. Does that mean Congress must declare war? By what standards does a judge decide such a question?

If the AG does not move to dismiss on these grounds, its possible the AG wants to have the court definitely rule in favor of his previous published opinion to Senator Les Ihara, Jr. On that basis alone, the court should dismiss it since it is the AG and not the courts that give advisory opinions under our system of government.

Now you have me scared. Maybe I should stick to observing trials in federal court. There seems to be some wiggle room in state court that could give McDermott a chance, assuming that he slithers through the issue of standing.

My immediate fear was that a sympathetic judge could decide based on a personal belief. Judges go to church too, after all... but looking up Judge Karl Sakamoto

Education: Sakamoto earned both a B.A. in psychology and a J.D. from the University of Hawaii.[4]

Career: Prior to his appointment, Sakamoto worked as a deputy public defender, an associate in the civil litigation section of a private law firm, and as a senior attorney and deputy executive director for the state Civil Rights Commission.

Awards and Associations: Past associations include:

The National Employment Lawyers Association Hawaii Chapter
The National Asian Pacific American Bar Association
The Japanese American Citizen's League
The Honolulu Civic Entrepreneur Initiative[4]

So I'm confident that this judge has a background which I can trust to lead to a ruling that will be fair. Sure, his ruling either way can be appealed.

Now, according to a report in the Star-Advertiser, he did say a few things when McDermott brought the case before him last week:

Ordinarily, Sakamoto said, the courts would look to the legislative intent to interpret a law.

"But the uniqueness of the issue arises from the process of a constitutional amendment being ratified, which involves the ratification by the people of Hawaii," the judge said. "Now, in ratifying the bill, the people of Hawaii — their intent — can somewhat be determined by the information they were given, the questions they were given to vote upon.

"And when you look at that portion of what the voters were given, it was narrowly construed to be an issue about whether marriage would be restricted to opposite-sex marriage."

Sakamoto asked how the court can determine whether voters, acting on limited information, knew in 1998 that they were also giving the Legislature the constitutional ability to expand marriage to include same-sex couples.

[Star-Advertiser, Judge open to claim from opponents, 11/8/2013]

He seems to have delved already into the questions put before him, and if this is what he is thinking, then isn't it likely that he'll have to accept McDermott standing before him in order to consider his arguments? Wouldn't the public interest in resolving the 1998 amendment issues push him to consider the challenge? And does the amendment issue imply in any way that any of us, for example, might have standing if we felt we were either bamboozled into voting one way or the other?

Senator Ihara noted on the Senate floor that regardless of the amendment, the state has the power to regulate marriage (my paraphrase). I assume the AG might argue that as well.

Are my questions just so far off that I'm merely demonstrating my ignorance?


L: Isn't it likely that he'll have to accept McDermott standing before him in order to consider his argument?

His statements, if those are quotes, don't directly address standing and if no one brought it up in opposing McDermott's original motion, then it wouldn't be before him. Judges should always be on the look out for whether they have jurisdiction, but if its overlooked and no one brings it up, then it will be overlooked.

L: Wouldn't the public interest in resolving the 1998 amendment issues push him to consider the challenge?

Courts don't give advisory opinions. The AG's published opinions are given great deference by the courts partly for this reason. An AG's opinion is supposed to settle great questions of public interest.

L: And does the amendment issue imply in any way that any of us, for example, might have standing if we felt we were either bamboozled into voting one way or the other?

Sakamoto will be hard pressed to look beyond what the neutral, objective information the Office of Elections circulated to the public because otherwise, people could very cleverly override what the legislature intended to put on the ballot simply by publicizing misleading information in a number of places (contrary to the plain language of the question or amendment). Sakamoto can't poll all the voters who voted yes or no and can't extrapolate from any sample of a few witnesses the parties might conceivably bring to the stand. The long standing rules of how to interpret a constitutional amendment question exist precisely for these evidentiary limitations. Sakamoto's apparent questioning regarding that will be reversible error if he goes down that path.

Wow. So many words. The folks I talk to just say, "Eh, the question was about reserving marriage to one man and one woman." How come we never get to vote on that?

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