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Religious Tolerance logo

Same-sex marriages (SSMs) & civil unions in Hawaii

2012: Jackson v. Abercrombie case in federal
District Court. Plaintiffs lose. Appeal expected.
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This is a continuation from a previous essay

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2012-FEB-21: Jackson v. Abercrombie case in federal District Court:

The plaintiffs' lawyer, John J. D'Amato, said:

"The state is not permitted to act upon private, moral or religious or traditional beliefs. It has to have some kind of rational purpose for its law." 1

He also said:

"I have the greatest respect for Gov. Abercrombie and Attorney General David Louie. They have extremely difficult jobs to do, and I understand that they’ve got to consider all of the segments of the population in the decision that they arrive at. I would say, though, that when all is said and done, they need to think in terms of what is pono, what is just for a segment of this population that has been deprived of a right that should have been theirs 15 years ago." 2

"Pono" is a Hawaiian word commonly rendered as "righteousness," as in the Hawaii state motto: "Ua Mau ke Ea o ka ʻĀina i ka Pono" ("The life of the land is perpetuated in righteousness".)

The lawsuit has placed government officials in an unusual position. Governor Neil Abercrombie (D) is named as a defendant. But he has repeatedly said that he does not support the existing marriage law because it denies equal rights to same-sex couples. He told the Hawaii Reporter:

“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."

Meanwhile, Loretta Fuddy, director of the Department of Health has chosen to defend the law. She said:

"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."

The state's Attorney General is in an awkward situation; he is simultaneously fighting against the current marriage law on behalf of the Governor even as he supports the same law on behalf of the Department of Health.

Plaintiff Natasha Jackson commented:

"I appreciate everything that people have done in the past with regards to civil unions,. I wasn’t necessarily standing beside them, but I was definitely supporting them and I still am. I don’t want to seem ungrateful for their efforts." 2

But she wants more. She wants equality. She refuses to sit at the back of the bus.

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2012-AUG-08: Federal District Court judge rules against plaintiffs:

Gary Bradley had joined the case as a co-plaintiff. He is an American citizen who wants to marry his partner who is a foreign national. Marriage would profoundly alter his partner's immigration status.

U.S. District Court Judge Alan C. Kay ruled that the due process and equal protection rights guaranteed by the 14th Amendment to the U.S. Constitution do not apply in the case of same-sex couples. He ruled in favor of the defendant Hawaii Health Director Loretta Fuddy, and the intervener Hawaii Family Forum (HFF), a conservative Christian group opposed to same-sex marriage for religious reasons.

His ruling stated, in part:

"Throughout history and societies, marriage has been connected with procreation and child rearing. ... It follows that it is not beyond rational speculation to conclude that fundamentally altering the definition of marriage to include same-sex unions might result in undermining the societal understanding of the link between marriage, procreation, and family structure."

"In this situation, to suddenly constitutionalize the issue of same-sex marriage 'would short-circuit' the legislative actions that have been taking place in Hawaii." 3

He also wrote:

"... Hawaii's marriage laws are not unconstitutional. Nationwide, citizens are engaged in a robust debate over this divisive social issue. If the traditional institution of marriage is to be reconstructed, as sought by the plaintiffs, it should be done by a democratically elected legislature or the people through a constitutional amendment."

Dale Schowengerdt, the Alliance Defending Freedom attorney representing HFF, said:

"The ruling affirms that protecting and strengthening marriage as the union of one man and one woman is legitimate, reasonable, and good for society."

Governor Abercrombie was in the unusual position of being a strong supporter of same-sex marriage, while being named as a defendant in this case because of his political position. HFF attempted to have the Governor dismissed as a defendant; this was refused by Judge Kay. Abercrombie issued a statement saying that he disagreed with the ruling and would support the couples if they chose to appeal. He said:

"To refuse individuals the right to marry on the basis of sexual orientation or gender is discrimination in light of our civil unions law. For me, this is about fairness and equality."

John D'Amato, lawyer for the three plaintiffs, said that they will appeal the case to the 9th U.S. Circuit Court of Appeals. 4

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What are the chances of the appeal being successful:

The ruling by Federal Judge Alan Kay is surprising to many commentators.

A very similar case was argued in 2010-JAN before Federal District Judge J. Vaughn Walker in California. It also involved:

  • A case launched in Federal Court.

  • Support for the plaintiffs from the Governor of the state.

  • Multiple loving, committed same-sex couples seeking permission to marry, including both lesbians and gay couples.

  • Plaintiffs arguing that the state's refusal to allow them to marry violated the 14th Amendment of the U.S. Constitution.

  • Being the first time that this specific argument had been raised in a Federal court in the state.

But the outcomes were totally opposite:

During 2010, after a very detailed investigation, Judge Walker had concluded that:

  • The right to marry is a fundamental right for loving, committed couples, whether they be of opposite-sex or of the same-sex.

  • Under the U.S. Constitution, marriage cannot be denied anyone without a compelling reason to do so.

  • There is no compelling reason why a state government should deny marriage to couples simply because they are of the same gender.

Judge Walker's decision was appealed to a three-judge panel of the U.S. 9th Circuit Court of Appeals where it was upheld.

The decision of the panel was then appealed to the full Court of Appeals who also upheld the lower court's decision. It has was later appealed to the U.S. Supreme Court which decided on 2013-JUN-26 that the two appeals were not valid because the group making the appeal did not have standing to do so. This left the District Court's ruling by Judge Walker in place. Same-sex marriages in California resumed two days later and have continued ever since.

Since the states of Hawaii and California are both within the mandate of the U.S. 9th Circuit Court of Appeals, one would expect that the case in Hawaii would follow the precedent created by the earlier Court of Appeals' rulings. Instead, Federal Judge Kay rejected the argument that the 14th amendment protected the right of loving, committed same-sex couples in Hawaii to marry.

By early 2013-SEP, the Court of Appeals had not ruled on the constitutionality of Hawaii's restrictive marriage law. They may never do so because Governor Abercrombie has called the legislature back into a special session to deal with a bill to legalize same-sex marriage in the state.

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This topic continues in the next essay.

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Site navigation:

Home > Religious info. > Basic > Marriage > Same-sex marriage > HI > here

Home > "Hot" topics > Homosexuality > Same-sex marriage > HI > here

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References used:

The following information source was used to prepare and update the above essay. The hyperlink is not necessarily still active today.

  1. Shantel Grace, "I Now Pronounce You Not Married! Is there anything civil about civil unions?" Honolulu Weekly, 2012-JAN-11, at:
  2. "Implications for Hawaii after California same-sex marriage ruling," Hawaii News Network, 2012-FEB-07, at:
  3. "U.S. District Court in Hawaii upholds state's marriage law," National Organization for Marriage, 2012-AUG-09, at:
  4. Jennifer S. Kelleher, "Federal judge rules against Hawaii gay marriage," Associated Press, 2012-AUG-08, at:

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Copyright © 2012 & 2013 by Ontario Consultants on Religious Tolerance
Originally written: 2012-FEB
Latest update: 2014-SEP-09
Author: B.A. Robinson

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