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McDermott v. Ige

Supreme Court of Hawai'i

May 27, 2015

REPRESENTATIVE BOB McDERMOTT, GARRET HASHIMOTO, WILLIAM E.K. KUMIA, and DAVID LANGDON, Plaintiffs-Appellants,
v.
GOVERNOR DAVID IGE and VIRGINIA PRESSLER, DIRECTOR, DEPARTMENT OF HEALTH, STATE OF HAWAI'I, Defendants-Appellees

Page 383

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT. CAAP-14-0000843; CIV. NO. 13-1-2899.

Robert K. Matsumoto and Shawn A. Luiz for appellants.

Deirdre Marie-Iha and Donna H. Kalama for appellees.

RECKTENWALD, C.J., NAKAYAMA, POLLACK, AND WILSON, JJ., AND CIRCUIT JUDGE CASTAGNETTI, IN PLACE OF McKENNA, J., RECUSED.

Page 384

[135 Hawai'i 277] OPINION

Mark E. Recktenwald, Judge

This case requires us to determine whether Appellants have standing to challenge the Hawai'i Marriage Equality Act of 2013. The 2013 Act changed Hawaii's definition of marriage so that same-sex couples could marry. Appellants--State Representative Bob McDermott, Garret Hashimoto, William E.K.

Page 385

[135 Hawai'i 278] Kumia, and David Langdon--filed suit in the Circuit Court of the First Circuit[1] to invalidate the 2013 Act. The circuit court upheld the Act's validity.

On appeal, Appellants claim that the 2013 Act is unconstitutional under article I, section 23 of the Hawai'i Constitution (also referred to as the " 1998 marriage amendment" ), which provides: " The legislature shall have the power to reserve marriage to opposite-sex couples." Haw. Const. art. I, § 23. Specifically, Appellants argue that the 1998 marriage amendment was adopted by the voters to constitutionally require the legislature to reserve marriage to opposite-sex couples.

Before we consider the merits of Appellants' claims, we must first determine whether they have standing to bring this lawsuit. Legal standing requirements promote the separation of powers between the three branches of government by limiting the availability of judicial review to cases involving an " injury in fact." Sierra Club v. Dep't of Transp., 115 Hawai'i 299, 319, 321, 167 P.3d 292, 312, 314 (2007); Sierra Club v. Hawai'i Tourism Auth. Ex rel. Bd. of Dirs., 100 Hawai'i 242, 250-51, 59 P.3d 877, 885-86 (2002) (plurality opinion). To have standing, a plaintiff must show that he or she has suffered an actual or threatened injury that is fairly traceable to the defendant's actions, and that a favorable decision would likely provide relief for that injury. See, e.g., Sierra Club v. Dep't of Transp., 115 Hawai'i at 314, 167 P.3d at 321.

We hold that Appellants have failed to establish standing to bring this lawsuit. The legislature's decision to extend the right to marry to same-sex couples does not, in any way, diminish the right to marry that Appellants remain free to exercise. Although it appears Appellants have deeply-held objections to same-sex marriage, such moral or ideological disapproval does not constitute a legally cognizable injury sufficient to establish standing.

Because Appellants do not have standing to challenge the constitutionality of the Marriage Equality Act, we vacate the circuit court's order granting summary judgment and remand the case to the circuit court with instructions to dismiss the case for lack of jurisdiction.

I. Background

A. Background to article I, section 23 of the Hawai'i Constitution and the Marriage Equality Act

In 1991, three same-sex couples filed a lawsuit in the circuit court against John C. Lewin, then-Director of the Hawai'i Department of Health (DOH), challenging the DOH's practice of restricting marriage licenses to opposite-sex couples. Baehr v. Lewin, 74 Haw. 530, 535-37, 852 P.2d 44, 48-49 (1993) (Baehr I). The plaintiffs in Baehr I alleged that Hawai'i Revised Statutes (HRS) § 572-1 was unconstitutional as construed by the DOH.[2] Id. On appeal, this court held that both on its face and as applied by the DOH, HRS § 572-1 established a sex-based classification, which would violate the equal protection clause of the Hawai'i Constitution unless the strict scrutiny test was met, and remanded the case to the circuit court to determine whether the State could meet its burden of showing that the statute " furthers compelling state interests and is narrowly drawn to avoid unnecessary abridgments of constitutional rights." Id. at 580, 582, 852 P.2d at 67, 68.

In 1994, while the remanded Baehr case was again before the circuit court, the legislature

Page 386

[135 Hawai'i 279] amended Hawaii's definition of marriage in HRS § 572-1 to specify that Hawaii's marriage licensing laws only allowed marriage between opposite-sex couples. 1994 Haw. Sess. Laws Act 217 at 526. The amended HRS § 572-1 stated that the marriage contract " shall be only between a man and a woman . . . ." HRS § 572-1 (2006).

Meanwhile, on remand, the circuit court held that the State's traditional definition of marriage did not meet strict scrutiny, and the State appealed. Baehr v. Miike, 80 Haw. 341, 910 P.2d 112, 1996 WL 694235, at *21-22 (Dec. 3, 1996).

In 1997, while the appeal was pending, the legislature proposed an amendment to the Hawai'i Constitution. See 1997 Haw. Sess. Laws HB 117 at 1246-47. Representative McDermott voted in support of the amendment when it came before the House. The proposed amendment was submitted to the general public as a ballot question in the November 3, 1998 general election. The question on the ballot asked: " Shall the Constitution of the State of Hawaii be amended to specify that the legislature shall have the power to reserve marriage to opposite-sex couples?"

Before the election, the State of Hawai'i Office of Elections released a fact sheet, which included explanations of the consequences of a " yes" vote and a " no" vote. The fact sheet stated that " [t]he proposed amendment is intended to make it absolutely clear that the State Constitution gives the Legislature the power and authority to reserve marriage to opposite-sex couples." The fact sheet went on to explain that a " yes" vote would " add a new provision to the Constitution that would give the Legislature the power to reserve marriage to opposite-sex couples only. The legislature could then pass a law that would limit marriage to a man and a woman, overruling the recent Supreme Court decision regarding same-sex couples." The fact sheet also explained that a " no" vote " will make no change to the Constitution of the State of Hawai'i, and allow the court to resolve the lawsuit that has been brought against the State."

Over two-thirds of the voters voted in favor of the amendment, and article I, section 23 of the constitution was added to read: " The legislature shall have the power to reserve marriage to opposite-sex couples." Haw. Const. art. I, § 23. After the 1998 marriage amendment was ratified, the legislature did not re-enact legislation defining marriage as between a man and a woman, presumably because the then-existing version of HRS § 572-1 already limited marriage to opposite-sex couples. See HRS § 572-1 (1993) (amended 1994, 1997, 2012, 2013).[3]

On December 9, 1999, this court issued a summary disposition order stating that the 1998 marriage amendment had " tak[en] the [marriage] statute out of the ambit of the equal protection clause of the Hawai'i Constitution," and therefore " HRS § 572-1 must be given full force and effect." Baehr v. Miike, No. 20371, 1999 WL 35643448, at *1 (Haw. Dec. 9, 1999) (SDO) (Baehr II).

The 1994 statutory definition of marriage in HRS § 572-1 remained unchanged in pertinent part until November 2013. On October 28, 2013, the legislature began a special session to consider Senate Bill 1 (SB 1). SB 1 was signed into law on November 13, 2013, as the Hawai'i Marriage Equality Act of 2013. The Marriage Equality Act changed the definition of marriage so that " the marriage contract . . . shall be permitted between two individuals without regard to gender," thereby permitting same-sex marriage. HRS § 572-1 (Supp. 2014).

B. Prior Proceedings in the Present Case

On October 30, 2013, while the legislature was considering SB 1, Representative McDermott filed a complaint in the circuit court. On November 1, 2013, a first amended complaint joined as plaintiffs Hashimoto,

Page 387

[135 Hawai'i 280] Kumia, and Langdon. Appellants originally named as defendants the Governor and four legislators. After the Marriage Equality Act was signed into law, the legislators were removed as parties and the Director of the DOH was added, and the case proceeded against the Governor and the Director of the DOH (Appellees).

On November 4, 2013, Appellants moved for a Temporary Restraining Order (TRO) to enjoin the State from issuing any marriage licenses to same-sex couples. Appellants first argued that they were likely to succeed on the merits. Appellants acknowledged that based on the 1998 marriage amendment, the legislature only possessed the authority to limit marriage to opposite-sex couples by statute if it chose to do so, but argued that at the time the public voted, the legislature had already chosen to do so in HRS § 572-1. According to Appellants, this indicates that the intent of the voters in 1998 was to validate the existing statute, and reserve marriage to opposite-sex couples only. Thus, according to Appellants, before amending the statute to allow same-sex marriage, the legislature would have to again ask the public to amend the constitution.

Appellants next argued that, based on experiences in other states, they would suffer irreparable injury if SB 1 became law:

Once same-sex marriages were approved in Massachusetts, parents there were faced with rulings that the schools had a duty to portray homosexual relationships as normal, and the complaints of parents were ignored. Further, businesses in Massachusetts were faced with equally serious situations involving, for example, disruptions and expenses caused by " testing for tolerance" by homosexual activists.

Finally, Appellants argued that the public interest favored granting the injunction because:

[t]he public has a strong vested interest in knowing that the very basis of Hawaii's cultural norms, the family, which consists of a mother, father and children (and perhaps includes several generations), will be forever changed. To see the depth of that vested interest, one needs to go no further than to consider the thousands and thousands of citizens that met and rallied at the Capitol Building on October 28, 2013 to oppose any change to Section 572-1 that would validate same-sex marriages. These citizens were from every walk of life. They were Hawaiians, Polynesians, Asians, African Americans and Caucasians. They were young and old, and all they wanted was to tell the legislators: " Let the people vote." There is a cultural norm involved, and a change in that historic cultural norm should not be changed and mandated by a law that is opposed by the vast majority of Hawaii's citizens. The adverse societal impacts and the great public interest should be obvious to the Court.

On November 5, 2013, Appellees responded by arguing that the court lacked the authority to grant Appellants' motion because enjoining the legislature from enacting a bill or the governor from signing it would violate the separation of powers doctrine and the political question doctrine, and that Appellants' action against a bill rather than a law was not ripe.

Appellees also argued that Appellants lacked standing. According to Appellees, Representative McDermott lacked standing as a legislator suing in his official capacity because an individual legislator does not have standing based solely on his or her status as a legislator, and is required to show a personal stake and a concrete injury to establish standing. Appellees argued that the only exception to this rule--where legislators whose votes would have been sufficient to pass or defeat a specific bill sue because their votes were " nullified" --does not apply here because Representative McDermott has not shown that there were enough votes to defeat the bill or that his vote had been nullified. Appellees also argued that Hashimoto, Kumia, and Langdon (the " Individual Plaintiffs" ) lacked standing because they were attempting to assert a " value preference" which was insufficient to show a concrete injury-in-fact.

Appellees also argued that even if the case was properly before the court, Appellants could not show a likelihood of success on the merits. Appellees argued that the language of article I, section 23 clearly and unambiguously

Page 388

[135 Hawai'i 281] permits, but does not require, the legislature to limit marriage to opposite-sex couples. Thus, according to Appellees, article I, section 23 did not limit the legislature's authority to enact the Marriage Equality Act.

Appellees also contended that even if the language of article I, section 23 is ambiguous, the legislative history and the factual circumstances surrounding the 1998 marriage amendment supported Appellees' interpretation of the provision. Specifically, Appellees argued that a reasonable voter would have understood that the 1998 marriage amendment did not require the legislature to limit marriage to opposite-sex couples, but merely gave the legislature the authority to act if it chose to do so.

In response to Appellees' claim that Appellants lacked standing, Appellants argued that because they were bringing a declaratory action in a matter of great public importance, the traditional standing requirements were not applicable. Appellants also argued that Representative McDermott had standing as a legislator because prior to the 1998 marriage amendment, he had represented publicly that " a 'Yes' vote would allow the Constitution to be amended, so that the prior law . . . (that reserved marriage to heterosexual couples only) would be Constitutionally established and would be valid." Therefore, according to Appellants, absent an injunction, Representative McDermott would " suffer irreparable damages to his reputation and to his electability as a legislator, which is his livelihood, because his actions and speeches prior to the 1998 vote will have been and will be deemed by the electorate to be misleading and untruthful."

On November 7, 2013, the circuit court denied Appellants' motion on the grounds that enjoining the signing of the bill would be a violation of the separation of powers doctrine, was a political question, and was not ripe, but also stated that it would hear further arguments on the impact of SB 1 if the Governor signed the bill into law.

In a supplemental memorandum, Appellants argued that Appellees should be estopped from arguing that article I, section 23 merely gave the legislature the power to limit marriage to opposite-sex couples if it chose to do so because according to Appellants, Appellees' interpretation is contrary to the information the State had given in its Ballot Information Flyer before the general election vote on the 1998 marriage amendment. The Ballot Information Flyer stated, in relevant parts:

The proposed amendment is intended to make it absolutely clear that the State Constitution gives the Legislature the power and authority to reserve marriage to opposite-sex couples.
. . . .
A " Yes" vote would add a new provision to the Constitution that would give the legislature the power to reserve marriage to opposite-sex couples only. The legislature could then pass a law that would limit marriage to a man and a woman, overruling the recent Supreme Court decision regarding same-sex couples.
. . . .
A " No" vote will make no change to the Constitution of the State of Hawai'i and allow the court resolve the lawsuit that has been brought against the State.

On November 14, 2013, the day after the Marriage Equality Act was signed into law, the circuit court held another hearing on Appellants' motion for a TRO and preliminary injunction.[4]

Appellants clarified that their argument was not that article I, section 23 required the legislature to define marriage as between opposite-sex couples, but that once the legislature exercised its power conferred by article I, section 23, the legislature no longer had other powers to define marriage without amending the constitution.

Appellees argued that regardless of article I, section 23, the legislature has the power under article 3, section 1[5] ...


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