Governor Neil Abercrombie has declined to defend Hawaii’s ban on same-sex marriage, admitting that the state level Defense of Marriage Act may violate the American Constitution. However, the ban will be defended by the Hawaii Department of Health.

The lawsuit in question, Jackson v. Abercrombie, filed in the United States District Court, 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 further details how 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.”

Plaintiffs allege that the denial of a marriage license by the State violates their rights to Due Process and Equal Protection under the law as guaranteed them by the Fourteenth Amendment of the United States Constitution.

Governor Abercrombie has conceded several of the suit’s charges.

Specifically, Governor Abercrombie concedes to the following allegations made by plaintiffs:

- 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.

However, Governor Abercrombie is defending against a number of 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.

As to defending the law, Director of the State Department of Health Loretta Fuddy, after consulting with the Governor, has 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 denies that plaintiffs have a right to have their relationship recognized as a marriage by the state.

Given this division in positions, the Attorney General has assigned separate teams of attorneys to represent the Governor and the Director of Health.

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