Media release from the Hawaii Attorney General

HONOLULU, Hawaii: Attorney General David M. Louie announced today that Governor Neil Abercrombie and Director of the State Department of Health Loretta Fuddy, have filed separate answers, as the two defendants named in their official capacities, in the First Amended Complaint in Jackson v. Abercrombie, the United States District Court lawsuit which challenges Hawaii’s ban on same sex marriage.

Governor Abercrombie has acknowledged many of the complaint’s allegations, including the denial of federal constitutional rights caused by the state’s existing marriage law. Director Fuddy, however, as the director of the department charged with administering the law, has denied many of the complaint’s allegations. As such, the Department of Health will continue to enforce the law, and will vigorously defend it. Both defendants’ answers are attached to this press release.

The Complaint

The complaint alleges that on November 18, 2011, plaintiffs Natasha Jackson and Janin Kleid were denied a marriage license by the Department of Health because they are both women. The complaint also alleges that plaintiff Gary Bradley and his partner were the first male couple to obtain a civil union in Hawaii, but chose not to apply for a marriage license because it would be “futile” to do so under state law.

All three plaintiffs allege that the denial of a marriage license to them by the State, pursuant to section 572-1 of the Hawaii Revised Statutes and article I, section 23 of the Hawaii Constitution, violates their rights to Due Process and Equal Protection under state law, guaranteed them by the Fourteenth Amendment of the United States Constitution.

Governor Abercrombie’s Position

Governor Abercrombie, in choosing not to defend those portions of the complaint alleging equal protection and due process violations under the United States Constitution, issued the following statement: “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.”

In his answer to the complaint, Governor Abercrombie has specifically admitted several of the plaintiffs’ allegations:

• To the extent that state law allows opposite sex couples, but not same sex couples, to get married, it violates the Due Process Clause and Equal Protection Clause of the United States Constitution.
• State law, in denying all opposite sex couples the ability to get married, violates the Due Process Clause of the United States Constitution because the right to marry is a fundamental right, and there is no legitimate reason to deny otherwise qualified couples the ability to marry simply because they are of the same sex.
• Allowing opposite sex couples but not same sex couples to get married violates the Equal Protection Clause of the United States Constitution. By denying all same sex couples the ability to marry, state law discriminates on the basis of sexual orientation, and there are no compelling, substantial, or even rational bases for such discrimination.

Governor Abercrombie is defending against all of the allegations in the complaint that he has not admitted in his answer. This means he is defending against certain allegations, including defending the state against any civil rights liability under chapter 42, section 1983 of the United States Code. The Governor is also defending the state against any money damages claims.

Director Fuddy’s Position

Director Fuddy, after consulting with the Governor, has chosen to defend against the complaint. She issued the following statement: “The Department of Health is charged with implementing the law as passed by the Legislature. 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.”

In her answer to the complaint, Director Fuddy specifically:

• Admits that she has been sued in her capacity as the Director of the Department of Health. The authority, responsibilities, and duties of that office are as stated in Hawaii law.
• Admits that Bradley and his male partner cannot be issued a marriage license under existing Hawai‘i law.
• Denies that plaintiffs may have their relationship recognized as a marriage by the state.

The Attorney General’s Legal Ability To Represent Multiple Parties

The Attorney General has assigned separate teams of attorneys to represent the Governor and the Director of Health, under well-established Hawaii Supreme Court precedent.

In State v. Klattenhoff (1990) and Chun v. Board of Trustees of Employees’ Retirement System of State of Hawaii (1998), the Hawaii Supreme Court held that the Department of the Attorney General may undertake concurrent representation of multiple parties, which might otherwise constitute a conflict of interest under Rule 1.7 of the Hawaii Code of Professional Conduct, the rules governing lawyers. In so doing, however, the Department must erect appropriate firewalls between the competing attorneys, and take steps to ensure that no prejudice is suffered by the clients.

In this case, both the Governor and the Director are being represented by separate teams of attorneys general, and appropriate protections have been put in place to ensure that both clients are being vigorously, and separately, represented.