High Court Dismisses Same-sex Appeal
The State Court Rules That Only The Attorney Genral Has The Right
To Control State Cases
By Linda Hosek, Star-Bulletin
December 20, 1997
Eight present and former legislators have lost an
appeal to intervene in the same-sex marriage case, reinforcing a ruling
that the state attorney general has the exclusive right to control state
The state Supreme Court yesterday dismissed the
1996 appeal, which was an attempt by legislators to use all possible arguments
-- including homophobic, emotional, social and economic -- to fight same-sex
State Rep. Gene Ward, one of the legislators, said
he wasn't surprised by the ruling to not allow them to play a legal role
in the same-sex case.
But Ward (R, Mariner's Ridge-`Aina Haina) added
that the high court should wait until after November 1998 to make its final
Residents will vote in the November elections on
a constitutional amendment to let lawmakers define marriage.
Justices have the state's appeal of the same-sex
issue before them. If they affirm a 1996 lower court ruling that
found the state failed to show a compelling reason to ban same-sex marriage,
it would make Hawaii the first state in the nation to allow such unions.
"Some expect the court to act based on their interpretation
of the law," Ward said. "Others say it's a political court and would
likely wait until the people decide in November."
He predicted a ruling before the vote would ignite
a firestorm of protest.
Dan Foley, the attorney representing the three couples
who sued for the right to marry, said Ward was trying to turn a constitutional
issue into a political one to advance his own career.
He said Ward's proposal to let the majority rule
or to determine issues through polls leaves the minority without rights.
Foley also said the 1998 amendment was the first
on the books intended to take away rights, adding that the right to marry
In their ruling yesterday, justices affirmed a 1996
ruling by Circuit Judge Kevin Chang, who found that the legislators couldn't
intervene. He cited a 1976 state Supreme Court decision that gives
the attorney general the right to control state cases.
He also said the lawmakers, aided by the legal counsel
of Christian leader Pat Robertson, provided no evidence to suggest the
state was inadequately representing the case.
Justice drew national and international attention
with their 1993 ruling on the issue.
They presumed that same-sex couples have a right
to marry based on the state Constitution's equal protection clause, which
prohibits gender discrimination.
But they also threw the case back to the state,
giving officials a chance to ban same-sex marriage by showing a compelling
Chang, who also presided over the trial, found that
the state didn't prove its case.