By JENNIFER SINCO KELLEHER
HONOLULU (AP) _ Hawaii Gov. Neil Abercrombie should remain as a defendant in a lawsuit against the state by two women who want to get married, but he believes a ban on same-sex marriage is unconstitutional, a lawyer representing him said in court Tuesday.
U.S. District Court Judge Alan C. Kay heard lengthy arguments on the merits of the lawsuit by Oahu couple Natasha Jackson and Janin Kleid, who want to be married and not simply enter into a civil union. They say they need to be married in order to get certain federal benefits. Co-plaintiff Gary Bradley wants to be able to marry his foreign national partner to help him change his immigration status, said John D’Amato, who is representing the plaintiffs.
Kay also heard arguments on whether Abercrombie should remain a defendant in the case. Hawaii Family Forum, a Christian group that has been allowed to intervene in the case, argues Abercrombie has no place on either side of the lawsuit, partly because he is not the state official in charge of issuing marriage licenses. Abercrombie signed Hawaii’s civil union legislation into law last year, allowing same-sex and opposite-sex couples to enter into a civil union with the same state rights and responsibilities as traditional marriage.
The argument by Abercrombie attorney Girard Lau puts the governor in a unique position of both defending and supporting the lawsuit. It also puts him on opposite sides of the courtroom from his health director, Loretta Fuddy, who is fighting to uphold Hawaii’s existing law.
“He is definitely connected and can provide the redress plaintiffs seek,” Lau told the court in arguing that Abercrombie’s powers have direct bearing in the lawsuit. Removing him from the case, “unfairly penalizes” Abercrombie for allowing Fuddy to defend the law, contrary to his stance that it should be struck down.
Kay said he’s inclined to allow Abercrombie to remain a party in the suit but he didn’t immediately issue a ruling.
He also did not rule on other arguments made Tuesday, including whether the plaintiffs should prevail.
“Hawaii has drawn the line between civil unions and marriage,” D’Amato said. “Opposite-sex couples may cross that line at will.” Everything that’s afforded by civil unions is also afforded by marriage—except the name marriage, he said.
The case isn’t about discrimination against homosexuals, argued Bill Wynhoff, attorney for Fuddy. Under Hawaii law, two men or two women can’t marry, regardless of sexual orientation, he said.
Marriage recognizes a “natural procreative capacity” of opposite-sex couples, providing an incentive for couples to stay together and raise their children, argued Dale Schowengerdt, an attorney representing Hawaii Family Forum.
D’Amato noted that Jackson and Kleid are expecting a child.
Kay also heard arguments by Clyde Wadsworth, an attorney representing Equality Hawaii and Hawaii LGBT, which filed a “friend of the court” brief. He noted the case’s similarities with California’s ban on same-sex marriage, known as Proposition 8. “The parallel with California is striking here,” he said.