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Hawaii Same-Sex Marriage Case on Hold Pending Legislative Action

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By William Peacock, Esq. on September 27, 2013 3:45 PM

The battle for marriage equality in the State of Hawaii has been taken out of the Ninth Circuit's hands (for now) and placed into the hands of a special legislative session.

Now, instead of a court debating the nuances of Hawaii's truly unique marriage amendment, parties fronting the heavy cost of litigation, and appeals raging on for years, same-sex marriage could come to the Aloha State as soon as late October, unless the heavily Democratic state legislature fails to act.

The 1998 Amendment

Hawaii's voters approved a gay marriage amendment in 1998, but the state constitutional amendment didn't outright ban same-sex nuptials. Instead, it merely allows state lawmakers to "reserve marriage to opposite-sex couples," if they choose to do so.

They did, banning gay marriage shortly thereafter, leading to years of court battles which upheld the ban.

The Ninth Circuit

Earlier this year, a legal challenge to Hawaii's anti-gay marriage law was put on a parallel track with a similar challenge to Nevada's same-sex marriage ban. However, earlier this week, the Ninth Circuit granted an extension to parties in the Hawaii case, allowing them to file opening briefs by November 22. (Briefs in the Nevada case are, for now, still due on October 18.)

According to Equality on Trial, the extension was prompted by the actions of co-defendant Neil S. Abercrombie, the Governor of Hawaii, who called for a special session of the legislature to discuss a possible revision (or repeal) of the same-sex marriage ban. Should the legislature reverse the ban, that would obviously make the case moot. The plaintiffs in the Hawaii case, as well as defendant-appellee Loretta J. Fuddy, director of Hawaii's Department of Health, all consented to the delay. Fellow defendant-appellee Gov. Abercrombie took no position on the request.

The Legislative Session

On October 28, the state legislature will meet for a special session, lasting up to one week, which will consider only the issue of same-sex marriage, reports MSNBC.

"The decision to call a special session is based on doing what is right to create equity for all in Hawaii," Gov. Abercrombie said in a statement on his website. "As a former legislator, I have great respect for the Legislature and the legislative process. The merits of holding a special session include the opportunity for the Legislature to focus squarely on this important issue, without having to divert attention to the hundreds of other bills introduced during a regular session. In addition, if full advantage of various tax and other financial issues is to be achieved for citizens, passage before the end of the calendar year is essential."

What are those tax and financial issues? MSNBC quotes a recent study that found that legalizing same-sex marriage could bring $217 million in increased tourism revenue over the next two years.

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