Different Responses Filed in Same-Sex Marriage Lawsuit

By Wendy Osher

Separate answers have been filed in response to a lawsuit that challenges Hawaii’s ban on same-sex marriage.

The governor’s response acknowledges many of the complaint’s allegations, including the denial of constitutional rights; while the health director’s response upholds the role of the department in enforcing and defending the law.

Attorney General David M. Louie, who is tasked with representing both parties, has assigned separate teams of attorneys to ensure that both clients are “vigorously, and separately, represented.”

Complaint Background:

The complaint alleges that plaintiffs Natasha Jackson and Janin Kleid were denied a marriage license on November 18, 2011, by the Department of Health because they are both women.

The complaint also alleges that plaintiff Gary Bradley and his partner chose not to apply for a marriage license because it would be “futile” to do so under existing state law.  Bradley and his partner, instead, became the first male couple to obtain a civil union in Hawaii.

The plaintiffs allege that the denial of a marriage license, violates their rights to due process and equal protection under state law, and the 14th Amendment of the US Constitution.

Governor Abercrombie’s Position:

Governor Neil Abercrombie has acknowledged many of the complaint’s allegations, including the denial of federal constitutional rights caused by the state’s existing marriage law.  He has chosen not to defend those portions of the complaint.

In a statement issued today, the governor said, “Under current law, a heterosexual couple can choose to enter into a marriage or a civil union. A same-sex couple, however, may only elect a civil union. My obligation as governor is to support equality under law. This is inequality, and I will not defend it.”

In his answer to the complaint, Gov. Abercrombie admitted several of the plaintiffs’ allegations including the following:

• To the extent that state law allows opposite-sex couples, but not same sex-couples, to get married, it violates the Due Process Clause and Equal Protection Clause of the United States Constitution.
•  State law, in denying all opposite-sex couples the ability to get married, violates the Due Process Clause of the United States Constitution because the right to marry is a fundamental right, and there is no legitimate reason to deny otherwise qualified couples the ability to marry simply because they are of the same sex.
• Allowing opposite-sex couples but not same-sex couples to get married violates the Equal Protection Clause of the United States Constitution. By denying all same-sex couples the ability to marry, state law discriminates on the basis of sexual orientation, and there are no compelling, substantial, or even rational bases for such discrimination.

Governor Abercrombie is defending against all of the allegations not included in the above admissions. He is defending the state against any civil rights liability under chapter 42, section 1983 of the United States Code. The governor is also defending the state against any potential monetary damages.

Director Fuddy’s Position:

As the director of the department charged with administering the law, State Health Director Director Loretta Fuddy, has denied many of the complaint’s allegations and has chosen to defend against the complaint.

In a statement issued today, Fuddy said, “The Department of Health is charged with implementing the law as passed by the Legislature. Absent any ruling to the contrary by competent judicial authority regarding constitutionality, the law will be enforced.  Because I am being sued for administering the law, I will also defend it.”

In her answer to the complaint, Director Fuddy denies that plaintiffs may have their relationship recognized as a marriage by the state.

***Supporting information courtesy State of Hawai’i.