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DAVID M. LOTJIEAttorney General of HawaiiCARON M. INAGAKIJOHN F. MOLAYDEIRDRE MARIE IHADeputy Attorneys GeneralDepartment of the AttorneyGeneral, State ofHawaii425 Queen Stree tHonolulu Hawaii 96813Telephone: 808 586 1300Facsimile: 808 586 369

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383549947923

FtRST R U T C0URSTTE O H W HFILE LQ 3 NOV

HING

Attorneys for DefendantsGOVERNOR NEIL ABERCROMBIESENATOR DONNA MERCADO KIM ,REPRESENTATIVE JOSEPH SOIJKI,SENATOR CLAYTON HEE, andREPRESENTATIVE KARL RHOADS

IN THE CIRCUIT COURT OF THE FIRST CIRCUITSTATE OF HAWAII

GOVERNOR NEIL ABERCROMBJESENATOR DONNA MERCADO KIM ,REPRESENTATIVE JOSEPH SOUKI,SENATOR CLAYTON HEE,REPRESENTATIVE KARL RHOADS

Civil No. 13-1-2899-10 KKSSTATE DEFENDANTS MEMORANDUMIN OPPOSITION TO PLAINTIFFS EXPARTE MOTION FOR TEMPORARYRESTRAINING ORDER AGAINSTDEFENDANTS; EXHIBITS ATHROUGH D; DECLARATION OFSCOTT NAGO; EXHIBITS E THROUGHF; CERTIFICATE OF SERVICE

REPRESENTATIVE BOB McDERMOTTPlaintiff

vs.

Defendants.Hearing:DATE:TIME:

November 7, 20138:30 a.m.

JUDGE: Hon. Karl K. Sakamoto

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TABLE OF CONTENTSSECTION PGETABLE OF AUTHORITIES iiiINTRODUCTION IFACTUAL BACKGROUND 2

Background of this Suit 2B Background to Art Sec 23 and Baehr v Lewin 3

ARGUMENT A This Court Lacks Authority to Enjoin the Legislative and Executive

Branches of Government in Enacting a Law and the Claim is NotRipe 3 The Principle of Separation of Powers ars this Court from Enjoining

the Consideration or Signing of Legislation 42 The Political Question Doctrine Deprives this Court of Jurisdiction to

Enjoin the Consideration or Signing of Legislation 63 An Action for Declaratory Judgment is Not Ripe Because Plaintiff

Challenges a Bill Not a Law 84 Legislators Are Absolutely Immune from Suit For Any Actions

Taken as State Legislator 9B Plaintiff Lacks Standing and the Other Individuals Listed Are Not Parties

And Would Lack Standing Even if They Were 1 McDermott Lacks Standing in His Official Capacity as aState Legislator 1

2 The Three Additional Individuals Listed in the Motion are NotPlaintiffs And Do Not Have Standing Even if They Were

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C Even the Case Was Properly Brought Plaintiff Cannot Show aLikelihood of Success on the Merits Because Art. I Section 23 of theHawaii Constitution Does Not Ban the Marriage Equality ill 14 PlaintiffMust Demonstrate Unconstitutionality Beyond a Reasonable

Doubt 152 Article I Section 23 of the Hawaii Constitution Allows But Does

Not Require the Legislature to Limit Marriage to OppositeSexCouples 15

3 The Factual Circumstances Surrounding the 1998 Enactment ofAit. I Section 23 Fully Supports This Conclusion 16

Plaintiff Cannot Meet Any of the Other Factors for Injunctive Relief 18 Neither PlaintiffNor the Individuals Will Suffer Irreparable Hanu

If the Injunction is Denied 182 The Public Interest lso Favors Denying and Injunction 19

CONCLUSION 20

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TABLE OF AUTHORITIESCASES PagesAT T v. Winback Conserve Program, Inc.,

42 F.3d 1421 3d Cir. 1994) 18Abercrombie v. McClung,

55 Haw. 595, 525 P.2d 594 1974) 10Alons v. Iowa District Court for Woodbury County,698 N.W.2d 858 Iowa 2005 13, 19Atlanta Cas. Co. v. Fountain,413 S.E.2d 450 Ga. 1992) 6Baehr v. Lewin,74Haw.530,852P.2d44 1993) 3,16Baehr v. Mikke, Civ. No. 1-1394,1996 WL 694235 Haw. Cir. Ct . 996) 3, 4Baird v. Norton,266 F.3d408 6thCir. 2001 12Baker v. Carr,369 U.S. 186 1962) 6Barabin v. AIG Hawaii Ins. Co., Inc.,

82 Hawaii 258, 921 P.2d 732 1996) 17Bennett v. Napolitano,

81 P.3d 311 Ariz. 2003) 12Biscoe v. Tanaka,

76 Hawaii 380, 878 P.2d 719 1994) 4Gelco Corp. v. Coniston Partners,

811 F.2d414 8thCir. 1987) 18Citizens for Orderly Development and Environment v. City of Phoenix,540 P.2d 1239 Ariz. 1975)

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City of North Las Vegas v. Cluff.452 P.2d 461 Nev. 1969)

Coleman v. Miller,307 U.s. 433 1939 11. 12

Common Cause of Pennsylvania v. Pennsylvania,558 F.3d 249 3d . Cir. 2009 12

Corboy v. Louie128 Hawaii 89, 283 P.3d 695 2011) 12

Garden State Equality v. Dow,2013 WL 5687193 N.J. Oct. 18, 2013) 19

Hanabusa v. Lingle119Hawaii 341, 198 P.3d 604 2008) 10,12

Hughes v. Hosernann,68 So 3d 1260 Miss. 2011 7

In re McConaugy,119N.W. 408 Minn. 1909) 7

Karcher v. May484 U.S. 72 1987 12Kerttula v. Abood,

686 P.2d 1197, 1202 Alaska 1984) 10Kepoo v. Watson,

87 Hawaii 91 , 952 P.2d 379 1998 15Koike v. Bd. of Water Supply, City Cnty. of Honolulu,

44Haw. 100, 352P.2d 835 1960 15Lee v. Coffegedore,

83 Hawaii 154, 925 P.2d 324 1996 15, 17Life of the Land V. Ariyoshi,

59Haw. 156, 577P.2d11161978 18Marbury v. Madison,

U.S. 137 1803 20

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State v. Kahibaun,64 Raw. 197, 638 P.2d 309 1981 18

Stonehouse Homes v. City of Sierra Madre,84 Cal.Rptr.3d 223 Cal. App. 2 Dist. 2008 9Trustees of Office of Hawaiian Affairs v. Yamasaki,69 Raw. 154, 737 P.2d 446 1987 2, 6, 7, 8, 9United States v. Windsor,

133 S. Ct. 2675 2013 3, 16Varnum v. Brien,

763 N.W.2d 862 Iowa 2009 15Wagner v. Secretary of State,

663 A.2d 564, 567 Me. 1995 9Watland v. Lingle,

104 Hawaii 128 , 85 P.3d 1079 2004 18

ConstitutionAlaska Constitution, Article I, 25 Colorado Constitution, Article II, 31 Hawaii Constitution, Article I 23 3, 15, 16Hawaii Constitution, Article III 7 2Hawaii Constitution, Article III 14 2Hawaii Constitution, Article II 16 2Hawaii Constitution, Article V 2Hawaii Constitution, Article VI 2Maine Constitution, Article III , 2Maryland Constitution, Article III, 28 6Virginia Constitution, Art. I 15 -A

StatutesHRS 489-3 14HRS 572-1

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Hawaii Sessions

1997 Haw Sess L 1246 47 19

Other16A Am Jur 2d Constitutional Law 268

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INTRODUCTIONThis case is about a bill not a law Plaintiff has not sued alleging that a law is

unconstitutional. Plaintiff has sued trying to prevent a bill from being considered further by theHawaii State Legislature and to prevent Governor Abercrombie from signing that bill should itpass both the House and the Senate Compi Plaintiff makes arguments regarding Art I section23 of the Hawaii Constitution. But this Court need not even consider those argumentsbecause this Court lacks the authority to grant Plaintiffs requested relief This Court camotenjoin the legislative branch from legislating. Nor can it en join the Governor from consideringany bill presented to him Plaintiffs motion must be rejected for each of these reasons:

Enjoining the Legislature from considering a bill or the Governor from signing a billwould violate the doctrine of separation of powers. And the political question doctrinedeprives th is Court ofjurisdiction to interfere with the inherently political policy debatesculTently taking place at the Capitol.

Assertions of unconstitutionality are premature and therefore not ripe because on lylawsnot billsare properly subject to requests for declaratory relief.

Plaintiff McDermott and the three individuals listed on the motion do not have stand ing Article I section 23 of the Hawaii Constitution allows but does not require theLegislature to limit malTiage to opposite sex couples and the Legislature unquestionablyhas the constitutional authority to enact law s regarding domestic relations includingmarriage. Plaintiff ha s completely failed to demonstrate that the bill if enacted would beunconstitutional beyond a reasonable doubt

Plaintiffs request for a temporary restraining order must therefore be immediately rejec ted ThisCourt should entertain the constitutional question Plaintiff seeks to raise ifand only ifaproper party with standing sues after a law is enacted. As detailed below Plaintiffs case isimproper his argument regarding Art I section 23 is meritless and he has no standing. Themotion for a temporary restraining order must be denied.

Plaintiff refers to Rep. McDermott who ha s sued in his official capacity as a State legislatorCompi at 2 The other three individuals named in the motion for temporary restraining order arenot plaintiffs as they are not named in the complaint. Neither Plaintiff nor the individuals havestanding to bring this sui t This is addressed below. Defendant Governor Abercrombie isreferred to as Governor. The four named Senators and Representatives named in the complaintall sued in their official capacities only are referred to as the Legislature.

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FACTUAL BACKGROUNDA. Background of this Suit

We start with two central principles underlying the American structure of government:1 how a bill becomes a law and 2 the division of responsibility between the three branches ofgoverm-nent. Both of these are relevant to show how misplaced Plaintiffs suit is.

First, Plaintiff ignores how a bill becomes a law. Plaintiff has sued to enjoin the furtherconsideration or signing of S.B. which is presently being considered by the Hawaii StateLegislature. Compl .; see Ex. A. This billif it becomes lawwould recognize marriagesbetween two individuals regardless of gender in the State of Hawaii. Id. This is not a law: it is abill. No law shall be passed except by bill Haw. Const. Art. III 14. No bill shall becomelaw unless it shall pass three readings in each house on separate days. Haw. Const. Art. III 15. If a b ill passes the legislature it shall thereupon be presented to the governor. Haw.Const. Art. III 16. If the governor approves it, the governor shall sign it and it shall becomelaw. None of that has happened yet. No one can say with certainty that the b il l willbecome law until it does. Any prediction about the exact contents of the bil l, if enacted, arespeculative. Plaintiff has sued over something he thinks is likely to occur , not over somethingthat has occurred, that is, a law actually enacted consistent with the Hawai i constitution.

Second, Plaintiff misunderstands this Courts authority under the principle of separationof powers. This Court owes great deference to the other branches of government:[L]ike the federal government ours is one in which the sovereign power is divided andallocated among three co equal branches. See Haw. Const. art. III, art. V, and art. VI.Thus, we have taken the teachings of the [U.S.] Supreme Court to heart and adhered tothe doctrine that the use ofjudicial power to resolve public disputes in a system ofgovernment where there is a separation of powers should be limited to those questionscapable ofjudicial resolution and presented in an adversary context. And, we have

admonished our judges that even in the absence of constitutional restrictions theymust still carefully weigh the wisdom efficacy and timeliness of an exercise of theirpower before acting especially where there may be an intrusion into areas committedto other branches ofgovernment

Trustees of Office of Hawaiian Affairs v. Yamasaki 69 Haw. 154, 170-71, 737 P.2d 446, 4561987 emphasis added; citations internal quotation marks footnote and brackets omitted .This is the other overarching problem with Plaintiffs su it: he asks this Court to encroach on thespecific authority conferred on the Legislature and the Governor by the Hawaii constitution

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B. Background To Art. I, Section 23 and Baehr LewinIn 1991, three same-sex couples sued the State of Hawaii, alleging that limiting

marriage licenses to opposite-sex couples violated the Hawaii Constitution. In Baehr v. Lewin,74 Haw. 530, 852 P.2d 44 1993 , a plurality of the Hawaii Supreme Court held that restrictingmarriages to opposite-sex couples discriminated on the basis of sex. The Court held that thetrial court erred by applying a rational basis review of the constitutionality of the law becausediscrimination on the basis of sex constitutes a suspect classification. On remand, the trial courtruled that the traditional definition of marriage did not meet strict scrutiny and violated theHawaii Constitution. Baehr v. Miike, Civ. No. 91-1394, 1996 WL 694235 Haw. Cir. Ct.1996 . The trial courts ruling was stayed pending appeal.

In 1994, the Legislature amended the marriage licensing statute to confirm that marriageis limited to opposite-sex couples. As amended, Hawaii Revised Statutes HRS 572-1, readand still reads : In order to make valid the marriage contract, which shall be only between aman and a woman, it shall be necessary that. . . 1994 Haw. Sess. Laws Act 531. Article I,section 23 , of the Hawaii Constitution was proposed by the Legislature as House Bill No. 117,and was approved by the electorate in 1998. Article I, section 23 provides: The legislature shallhave the power to reserve marriage to opposite-sex couples. Following the amendment, theSupreme Court issued an order concluding that in light of the amendment, the underlying casewas moot. Baehr v. Miike, No. 20371 Haw., Dec. 9, 1999 SDO . It reversed the trial courtsdecision and directed it to enter judgment for the State.

In September 2013, following the United States Supreme Courts decision in UnitedStates v. Windsor, 133 S. Ct. 2675 2013 Governor Abercrombie called the Hawaii State.Legislature into special session to consider a marriage equality bill. See Ex . A proclamation .That bill is now being considered in the State Legislature, as S.B. 1.

ARGUMENTA. This Court Lacks Authority To Enjoin The Legislative And Executive Branches Of

Government In Enacting A Law And The Claim Is Not RipePlaintiff asks this Court to do something that is beyond its authority: to interfere with the

constitutional powers of the legislative and executive branches of government. The Legislatureexercises the legislative power and considers bills under Art. III. Art. III, section confers thelegislative power, and sections 14 and 15 govern the passage of bills. Art. III, section 16 governshow the Governor reviews bills presented to him. These powers are constitutional in origin and525051_iDOC 3

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o We could not, and will not, try to elaborate on the ramifications the initiated legislationmight have on existing laws, because to express a view as to the future effect napplication ofproposed legislation would involve us at least indirectly in the legislativeprocess, in violation of the separation ofpowers mandated by Article III, Section 2, of theMaine Constitution. Wagner v. Secretary of State, 663 A.2d 564, 567 Me. 1995emphases added; brackets, internal quotation marks and citation omitted .

o The acts [of legislative bodies] are not to be controlled by nor subjected to the coerciveinfluence of the courts, and may not be questioned until the courts are called upon toexpound or enforce th m as completed acts. The restraint operates although our constitutiondoes not contain an express prohibition against one department of government exercising thepowers of another A court cannot deal with the question of constitutionality until alaw has been duly enacted and some person has been deprived of his constitutional rightsby its operation. [I]t is not within the power of the judiciary to enjoin the legislaturefrom passing a proposed statute or compel it by mandamus to do so. Rose Manor Co. v. City of Milwaukee, 75 N.W.2d 274, 277 Wis. 1956 emphases added; citationsinternal quotations marks omitted .

o The legislative action has not beeiz completed. Certainly the Bill has not been enacted.To gr nt the reliefhere prayed would be pl in inteiferen ce with legislative action which isforbidden by [the Maryland constitution] It could hardly be contended that after oneHouse had passed a bill the courts could enjoin the submission of that bill to the other Houseon the allegation that the bill as passed by the one House was unconstitutional or unlawful.That is essentially what we are asked to do here. Maryland-Natl Capital Park and PlanningCommn v. Randall, 120 A.2d 195, 199 Md. 1956 emphases added .

o This court has power to determine what such legislation is, what the constitution contains,but not what it should contain. It has power to determine what statutory laws exist andwhether or not they conflict with the constitution; but it cannot say what laws shall or shallnot be enacted. . To issue an injunction in this action would be to enjoin the legislatureamid electors in the exercise of their legislative duty. Suppose a bill, having passed thelegislature, is in possession of the governor, or, to make the analogy more nearly complete,suppose it is being conveyed to the executive by an officer of the legislature, would any oneimagine the progress of the messenger could be arrested by an injunction? The inquiry

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answers itself. State ex rd. Evans v. Riif f, 42 N.W.2d 887, 888 S.D . 1950 emphasisadded; internal quotation marks and citation omitted .

These cases uniformly hold that this ourt may not enjoin the process by which a bill becomesa law. This Court must categorically reject Plaintiffs invitation to do so now. The process ofenacting a law is undoubtedly a legislative function . The making of the law s belongs to a ordinate branch of the government, and the courts have nothing to do with the making, but mustdeal altogether with the finished product. Power v. Ratliff, 72 So. 864 , 867 M iss. 1916. Thereis, as ye t, no finished product here. Under the principles of separation of powers, this Cou rtmust stay its hand. The motion must be denied.

2. The Political Question Doctrine Deprives th is Court of Jurisdictionto Enjoin the Consideration or Signing of LegislationFor many of the same reasons, the political question doctrine deprives th is Court ofjurisdiction to enjoin the legislative or executive branches in their political functions. A court

lacks jurisdiction if the dispute is not justiciable. The political question doctrine excludes fromjudicial review those controversies which revolve around policy choices and valuedetenriinations constitutionally committed for resolution to the legislative and executivebranches. 16A Am. Jur. 2d Constitutional Law 268 200 9. This doctrine turns in part onwhether a matter has in any measure been committed by the Gonstitution to another branch ofgovernment[.] Yamasaki, 69 Haw. at 169, 737 P.2d at 455 emphasis added; citation andinternal quotation marks omitted . There are several formulations of this doctrine, which isessentially a function of the separation of powers. Id. at 169-70, 737 P.2d at 455 . Among theseare cases that involve a political question [where there] is found a textually demonstrableconstitutional commitment of the issue to a coordinate political department or cases presentingthe impossibility of a courts undertaking independent resolution without expressing lack of therespect due coordinate branches of govemment[.] Id. at 170, 737 P.2d at 4554

The Hawaii Supreme Court adopted the test enunciated by the United States Supreme Court inBaker v. Can, 369 U.S. 186 1962 as its own test in Yamasaki. Nelson v. Hawaiian HomesCommn, 127 Hawaii 185, 194, 277 P.3d 279, 288 2012. The full test is:[i]t is apparent that several formulations which vary slightly according to the settings inwhich the questions arise may describe a political question, although each has one ormore elements which identify it as essentially a function of the separation of powers.Prominent on the surface of any case held to involve a political question is found atextually demonstrable constitutional commitment of the issue to a coordinate polit ical

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Both of these elements are present here; either shows tha t th is Court lacks jurisdiction.he passage and signing of bills is demonstrably even obviously committ[ed] by the

constitution[] to a coordinate political department[.] Yamasaki, 69 Haw. at 170, 737 P.2d at455. The Hawaii constitution ve sts the Legislature and the Governorand them alonewiththe authority to pass and sign bills Haw . Cons t. Art. III 14, 15, 16. This authority is at theheart of the roles the two other branches se rve under ou r system of government. A challenge tothe Legislatures exercise of a power which the Constitution commits exclusively to theLegislature presents a non{-]justiciable political question. Mental Health Assn in Penn. v.Corbett, 54 A.3d 100, 104 Pa . Cmwlth. Ct. 2012) . To attempt to enjoin the Legislature and theGovernor from ftirther considering or signing a bill would create the impossibility of a courtsundertaking independent resolution without expressing lack of the respect due coordinatebranches of government[.] Yarnasaki, 69 Haw . at 170, 737 P.2d at 455 .

Under the political question doctrine, therefore, an attempt to enjoin an unenacted bill isnonjusticiable. See, Queen Creek Land Cattle Corp. v. Yavapai County Bd. of Suprs,501 P.2d 391 , 393 Ariz. 1972) Without express statutory power, the courts are withoutjurisdiction to interfere, whether by injunction or otherwise, with the exercise of the legislativefunction or with the enactment of legislation. ; In re McConaughy, 119 N.W. 408 , 417 Minn.1909) [T]he Legislature may in its discretion detennine whether it will pass a law or submit aproposed constitutional amendment to the people. The courts have no judicial con tro l over suchmatters, not merely because they involve political questions, but because they are matters whichthe people have by the Constitution delegated to the Legislature.; Hughes v. Hosemann, 68So.3d 1260, 1266 Miss. 2011 assertion that unenacted initiative is unconstitutional is anonjusticiable political question. We cannot invade the territory of the Legislature or the

department; or a lack ofjudicially discoverable and manageable standards fo r resolvingit; or the impossibility of deciding without an initi al policy determination of a kindclearly for nonjudicial discretion; or the impossibility of a courts undertakingindependent resolution without expressing lack of the respect due coordinate branches ofgovernment; or an unusual need for unquestioning adherence to a political decisionalready made; or the potentiality of embarrassment from multifarious pronouncements byvarious departments on one question.

Yamasaki, 69 Haw . at 169-70, 737 P.2d at 455 quoting Baker.The Yamasaki/Baker list is in the alternative. A case need not meet all of the factors to fallunder the political question doctrine. Yarnasaki, 69 awat 170, 737 P.2d at 455.

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electorate to review the substantive validity of a proposed initiative[.] citations omitted . Thedoctrine of separation of powers and the political question doctrine both hold that th is Court does t have the authority or jurisdiction to enjoin either the Legislature or the Governor in theirconsideration and enactment of S.B. The motion must be den ied .

3. An Action for Declaratory Judgment is Not RipeBecause Plaintiff Challenges a Bill, Not a Law

The Hawaii Supreme Court has admonished that our courts do not rule on casesprematurely. Ripeness is ajusticiability issue. Yamasaki, 69 Haw . at 169, 737 P.2d at 4551987 When the litigation seems premature or subject to unresolved contingencies, the courtsspeak of the justiciability question in terms of ripeness.. At present, there is no law thatcould be the subject of th is suit. Plaintiffs request for declaratory relief is therefore not ripe.No court to our knowledge has ever held that a declaratory judgment regarding the validity ofa legislative act can be declared before the statutes enactment. City ofNorth Las Vegasv.Cluff, 452 P.2d 461 462 Nev. 1969 emphasis added .

No on e can be certain that any bi ll will pass, or what its content will be , unt il it becomesa law . Declaratory judgment will no t be rendered based on a possible or probablecontingency. Atlanta Cas. Co. v. Fountain, 413 S.E.2d 450, 452 Ga. 1992. Issuing an op inionon the constitutionality of an unenacted bill would be an advisory opinion. Hawaiis courts areprohibitfedffrom ruling on abstract or hypothetical question/si, as it would be anadvisory opinion[.] . Yamasaki, 69 Haw. at 171, 737 P.2d at 456 emphasis added. Courtsaround the country have declined to render advisory opinions on proposed legislation: [T]his dispute has not matured to a point where we can see what, if any, concrete

ontrovrsy will develop. It is much like asking a declaration that the State has no power toen t legislation that may be under consideration but has not yet shaped up in to anenactment. Pub . Serv. Commn Utah v. Wycoff Co., Inc., 344 U.S. 237, 245 1952 emphasis added .

[T]his Court has found that advance opinions will not be issued to remove alleged clouds oruncertainties from proposed statutes or constitutional amendments. It is not within theprovince of this Court to render advisory opinions. Hughes, 68 So.3d at 1263 .

The prohibition on advisory opinions also stems from separation of powers concerns. Id.525 5_iDOC 8

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o Action for declaratory relief not ripe because [alt this stage, the court must speculate as towhat legislation, any, the City might adopt[.] . Stonehouse Homes v. City of SierraMadre, 84 Cal.Rptr.3d 223, 231 Cal. App. 2 Dist. 2008 emphasis added .

o This argument concerns the future effect, enforceability, and constitutionality of theinitiative enacted. We agree with the Superior Court that this issue is not ripe for judicialreview. . In this instance, the initiative may never become effective. Thus, we are notpresented with a concrete, certain, or immediate legal problem. . Wagner v. Secy ofState, 663 A.2d 564, 567 Me. 1995 emphases added .

o Here there is no ordinance in existence by which a person could be affected so as to giverise to the jurisdictional prerequisite for invoking declaratory judgment relief. We thereforehold that the trial court could not properly entertain jurisdiction to declare the validity o thisproposed ordinance, prior to its actual adoption. Citizens for Orderly Development andEnvironment v. City of Phoenix, 540 P.2d 1239, 1242 Ariz. 1975 emphases added .

Under these cases, Plaintiffs suit is not ripe. He is requesting an advisory opinion, which areprohibited by the Hawaii Supreme Court. Yamasaki, 69 Haw. at 171, 737 P.2d at 456. Themotion should be rejected.

4. Legislators Are Absolutely Immune from Suit For Any ActionsTaken as State LegislatorThe separation of powers and political question arguments apply to both the Legislature

and the Governor. The complaint names Sen. Mercado Kim, Sen. Hee, Rep. Souki and Rep.Rhoads, in their official capacities, as Defendants referred to in this section as theLegislators . As to these defendants, there is a separate, independent reason why this Courtmay not grant Plaintiffs requested r li Plaintiff McDermott asserts that he has been asked toconsiderS.B. Compl. 22. The Complaint claims that a controversy exists regarding thescope and breadth of [Article I, section 23] and whether the State legislature has the right toenact any laws which would allow same sex couples the right to mariy[.] 23 emphasisadded . The complaint asks for a declaration that any bill or act which allows same-sex marriagein Hawaii is null and void until the Constitution is amended. Id. at 24 , Prayer 2. It thusappears that Plaintiff names the Legislators as Defendants in order to hail them before this Courtto answer for actions taken as part of their legislative functions. But this is categorically barredby the Hawaii constitution, which provides the Legislators with absolute mm un t y

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No member of the legislature shall be held to answer before any other tribunal for anystatement made or action taken in the exercise of the member s legislative functions Haw.Const. Art. III emphasis added. The Hawaii Supreme Court has held that Art. III 7provides absolute immunity to legislators for their legislative acts. Abercrombie v. McC lung, 55Haw . 595, 525 P.2d 594 l974. In Abercrombie, the plaintiff brought su it against a legislatorfor statements made to the media to clarify a speech the legislator had given to the Sena te ea rlie rthat day. The Court opined that such clarifying statements were made in the exercise of themembers legislative functions and were therefore absolutely privileged, even if enoneous andeven if given outside a legislative hearing. Id. at 600-01, 525 P.2d at 596 .

Art. III, section 7 does not define the term legislative functions, but it undoubtedlyincludes introducing, voting on, and passing legislation, the core functions of the legislature.Haw. Const. Art. III, the legislative power is vested in the legislature ; Kerttula v. Abood,686 P.2d 1197, 1202 Alaska 1984 interpreting constitutional provision modeled after Hawaiislegislative immunity provision; legislative acts necessarily include activities internal to thelegislature such as voting, speaking on the floo r of the house or in committee, and introducinglegislation. Here, the Legislators are being sued for actions taken in the exercise of theirlegislative functions: the introduction and consideration of legislation. But under the Haw aiiconstitution, the Legislators are absolutely immune from suitfor such actions, and any and allclaims agailist them ut be dismissed. Any claims against the Legislators cannot serve as thebasis for any request for injunctive relief The motion must be denied.B. PLaintiff Lacks Standing And The Other Individuals Listed Are Not Parties AndWould Lack Standing Even If They Were

Rep. McDermott Lacks Standing in His Official Capacity as a State Legislator.Standing is concerned with whether the parties have the right to bring suit. Hanabusa

v. Lingle, 119 Hawaii 341 , 347, 198 P.3d 604, 610 2008.[T]he crucial inquiry with regard to standing is whether the plaintiff has allegedsuch a personal stake in the outcome of the controversy as to warrant his or herinvocation of the courts remedial powers on his or her behalf In decidingwhether the plaintiff has the requisite interest in the outcome of the litigation, weemploy a three-part test: 1 has the plaintiff suffered an actual or threatenedinjury as a result of the defendants wrongful conduct; 2 is the injury fairly

At the time Abercrombie was decided, the constitutional provision in question was numberedArticle III, section 8. It was subsequently amended non-substantively and renumbered as aresult of amendments made during the 1978 constitutional convention.525 51_1 DOC 10

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traceable to the defendants ac tions; and 3 would a favorable decision likelyprovide relief for plaintiffs injury. With respect to the first prong of this test, theplaintiffmust show a distinct and pa lpable injury to himself [or herself.] Thein jury must be distinct and palpable as opposed to abstrac t, conjectural, or merelyhypothet ical.Id citations and internal quo tation marks om itted . The requirement of a distinct and palpableinjury requires a plaintiff to have suffered an injury in fact. Id

PlaintiffMcDermott is a member of the Hawaii State House of Representatives and suesin his officia l capacity. Compl. at 2 8. Se tting aside the fact th at S.B. is a bill, no t a law, theUnited States Supreme Court has rejected the con tention that an indiv idua l legislato r hasstanding to challenge the constitutionality of a law. In Raines v d521 U.S. 8111997 , sixmembers of Congress sought to argue that the Line Item Veto Act was uncon stitutional . Id at814-16. The Supreme Court held that these individual members of Congress do not have asufficient personal stake in this dispute and have not alleged a sufficiently concrete injury tohave established. standing. Id at 830 emphas is added .

The one exception to the general rule that individu al legislators lack standing is when alegislators vote is nullified by the defendants. In Coleman v Miller, 307 U.S. 433 1939, 20Kansas state senators voted in fav or of a proposed amendment to the federal constitution while20 voted against. at 435 -36 . Ordinarily, this would t have been sufficient to ratify theamendm ent. The Kansas lieutenant governor then cast the deciding vote. Id. The SupremeCou rt held tha t the legislators who sued had standing because their votes had been ove rriddenand virtually held for naught. R at 438. The Court subsequently explained that:

[O]ur holding in Coleman stands. for the proposition that legislators whosevotes would have been sufficient to defeat or enac t a spec ific leg isla tive Acthave stand ing to sue if that legislative action goes into effec t or does not go intoeffect, on the ground that their votes have been completely nu llified.Raine s 521 U.S. at 823. In Raines, legislators did not have standing because [t]hey have notalleged that they voted for a specific bill that there were sufficient vo tes to pass the bill, and tha tthe bill was nonetheless deem ed defeated. In the vote on the Act, their vo tes were given fulleffect. They simply lost that vote. R at 824 e mphas is added . Therefore unless individualleg isla tors can show that their vt s have been denied or completely nu llified they lacksufficient standing to sue. The same principles show that McDermott lacks standing here.

This case clearly fa lls within the am bit of Raines rather than Coleman. If S.B. becomeslaw , as long as Rep. McDermott was allowed to vote and his vote was no t completely nu llif ied,525 5 DOC 11

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he doe s not have standing to challenge the law in his official capacity. The complaint does noteven allege that the defendants are depriving him of his right to vote on S.B. Moreover, evenif Plaintiff McDermott could show that his own vo te was denied or nullified, that would not beenough. See Raines, 521 U.S. at 822, 824 explaining that under Coleman, legislators have tosu [e] as a bloc and they have to show that they voted [against] [the] bill that there weresufficient votes to [de fea t] the bill and that the bill was nonetheless [approved]. As long atMcDermotts vote is given full effect and he simply [loses] that vote he does not havestanding to sue. at 824. See also Baird v. Norton, 266 F.3d 408 , 411-13 6th Cir. 2001;Common Cause of Penn. v. Pennsylvania, 558 F.3d 249, 265-67 3d. Cir. 2009 ; Bennett v.Napolitano, 81 P.3d 311 3 16-18 Ariz. 2003 en banc .

Plaintiff McDenriott is not suing on behalf of the Legislature or one house of theLegislature, nor does he have the authority to do so. He names only himself in his officialcapacity. Compl. at 2. Under some circumstances, presiding legislative office rs may bring sui ton behalf of the entire Legislature or one house of the Legislature. See Karcher v. May 484U.S. 72 1987 Speaker of the New Jersey General Assembly and President of the New JerseySenate pursued lawsuit on behalf of the Legislature, but were not allowed to continue the suitafter they lost their leadership positions. . Here, not only is Rep . McDermott not a presidingofficer of the Legislature: he is suing those who are, See Bennett, 81 P.3d at 318; Compl. at 2.

Hawaii law is consistent with federal law on these issues. In Hanabusa, the President ofthe Senate and the Chair of the Senate Committee on Education sued because then-GovernorLingle violated their right under the Hawaii Constitution to confirm members of the Universityof Hawaii Board of Regents. Hanabusa, 119 Hawaii at 342, 198 P.3d at 605. The legislators inthat case were presiding officers of the state Senate who were contesting the Governors denialof their ability to vote on those confirmations. Id. at 348, 198 P.3d at 611. The legislators inHanabusa were acting on behalf of one house of the Legislature and they were contesting thedenial or nullification of their votes consistent with Coleman. McDermott presents no suchissues here: he sues on his ow in his official capacity only . Under Raines, this is insufficient tocreate standing. McDenTlotts motion fo r a temporary restraining order is plainly misplaced.8 Hawaii courts are not bound by the federal case or controversy requirement, so fede ra l casesare not dispositive on standing issue s. But federal standing cases are highly persuasive and theHawaii Supreme Court relies on them. See Corboy v. Louie, 128 Hawaii 89, 104, 283 P.3d 695,710 2011 .

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2. The Three Additional Individuals Listed in the Motion Are Not Plaintiffs,And Do Not Have Standing Even if They WerePlaintiffs motion lists three new plaintiffs. However, the operative complaint filed on

October 30 2013 lists only McDermott. Because the additional plaintiffs are not listed on thecomplaint, they are not parties to this case. Their names should be stricken from the motion.Even if these individuals were plaintiffs, they too lack standing to sue:

[U]nless [a plaintiff] [can] show some concrete injury, [the party] [is] merelyasserting a value preference and not a legal right. The proper forum for thevindication of a value preference is in the legislature, the executive, oradministrative agencies, and not the judiciary. For it is in the political arenathat the various interests compete for legal recognition.Mottl V Miyahira, 95 Hawaii 381 392 23 P.3d 716 727 200 1 emphasis added .

The three individuals cannot show a concrete injury in fact. They appear to be concernedcitizens who object to the recognition of same-sex marriages on policy grounds. Decs. This isnot enough . The ability of same-sex couples to marry does not affect them. Assuming that theseindividuals are heterosexuals, the ability of same-sex couples to marry does not harm existingopposite-sex marriages or prevent opposite-sex couples from marrying. The individuals areasserting a value preference. The proper place to assert it is in the Legislature, just as theHawaii Supreme Court held in Mottl. By filing this case they are in fact seeking to obstruct theresolution of this issue in the proper forum: the Legislature.

These individuals raise arguments similar to those in Alons v. Iowa District Court forWoodbury oity698 N.W.2d 858 Iowa 2005 . In Alons, the lower court granted dissolutionof a civil union celebrated in Vermont. at 862-63. Several outside parties fil ed a petition fora writ of certiorari to the Iowa Supreme Court challenging the dissolution. Id. At the tim e Iowadid not recognize same-sex marriages or civil unions and Vermont recognized civil unions butno t same-sex marriages. The plaintiffs argued that they had standing because they had aninterest in promoting traditional marriage and that recognizing a civil union was detrimental tothat aim. Id. at 869. They also argued that the public had an interest in avoiding the eros ion ofmaniage and that treating same-sex relationships as marriages denigrated traditional, oppositesex marriage. They claimed that [l]oss of. exclusive endorsement [of opposite-sexmarriage] will de-emphasize the importance of traditional opposite-sex marriage to society

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down the marriage license statute as being in violation of the Hawaii Constitution, the Office ofElections explained the meaning of the vote on the amendment as fo llows:

The proposed amendment is intended to make absolutely clear that the State Constitutiongives the Legislature the power and authority to reserve marriage to opposite-sexcouples. A yes vo te would add a new provision to the Constitution that would give theLegislature the power to reserve marriage to opposite sex couples on ly. The Legislaturecould then pass a law that would lim it marriage to a man and a woman, overruling therecent Supreme Court decision regarding same-sex couples.A no vote will make no change to the Constitution of the State of Hawaii, and to allowthe court to resolve the lawsuit that has been brought against the State.

Ex . F at 2 emphases added .It is beyond reasonable dispute that a voter reviewing the ballot materials would conclude

that if the amendment passed, the Legislature would have the power to decide ifmarriage shouldbe reserved to opposite-sex couples, or would be opened up to same-sex couples. Had theamendment beeii designed to prohibit same-sex marriages, or to require the Legislature toreserve marriages to opposite-sex couples, it would have simply said so, and not giveli theLegislature the option to do otherwise.

Plaintiff claims that 1 what individual voters thought at the time Art. I, section 23 wasratified should control, Compi. at 3, and 2 the Legislature had already codified the opposite-sexlimitation beforehand. Mot. at 3-5. These arguments are specious. First the interpretation of aconstitutional provision is a question of law, and personal opinions are not relevant to thatinquiry. See, Barabin v. AIG Hawaii Ins. Co., Inc., 82 Hawaii 258, 264 921 P.2d 732,738 1996 finding personal opinion irrelevant in statutory interpretation question. Isolatedindividuals do not decide what the law means for everyone. Oniy a court can do that. And, asdiscussed above, if voters believed Art. I, section 23 to be a ban on same-sex marriage, thatbeliefwas plainly mistaken. The voter factsheet has only one reasonable meaning in plainEnglish: the same legal meaning of Art. I, section 23 as explained above. Individuals mistakenpersonal opinions do not change this question of law.

Second the timing of the legislation to limit marriage to opposite-sex couples and theconstitutional amendment is irrelevant. Mot. at 4. Defendants are all aware that current Hawaiilaw limits marriage to opposite-sex couples. Whether the statute preceded the constitutionalamendment is not relevant. What is relevant is where the power rests to change that law. Art. This determination could only be made in a case brought by proper parties at the proper time.525 51 1 CC 17

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I, section 23 allows but does no t require the Legislature to reserve marriages to opposite-sexcouples. Plaintiff argues: The Legislature finally told the citizens that a Y es vote would causea new provision to be added to the Constitution that would give the Legislature the power toreserve marriage to opposite-sex couples y Mot. at 2-3. But the word on ly is not therelevant part. The relevant part is give the Legislature. Plaintiff does not contend that Art. I,section 23 removed that power from the Legislature: they admit the power was given to theLegislature. Mot. at 3. As explained above the Legislature possesses the authority should it sochoose to allow individuals of the same sex to many. Art. I, section 23 is no bar to theconstitutionality of S.B. 1 should it become law . Plaintiffs arguments contradict the plainlanguage legislative history and unmistakable meaning of the public factsheet.B Plaintiff Cannot Meet Any Of The Other Factors For Injunctive Relief

A temporary restraining order preserves the status quo until there is an opportunity tohold a hearing on a preliminary injunction. S Charles A. Wright et al., 1A Federal Practiceand Procedure: Civil 2d 2951 2d ed. Westlaw 2013). Like any injunction a TRO is anextraordinary remedy that should only be granted in limited circumstances. ATT v. Winback Conse rve Program Inc., 42 F.3d 1421, 1426-27 3d Cir. 1994). Injunctive relief is to be usedsparingly, and on ly in a clear and plain case. Rizzo v. Goode , 423 U.S. 362, 378 1976).The person or en tity seeking the injunction has the burden of proving the fac ts that en title it torelie f. Gelco Corp . v. Coniston Partners 811 F d 414, 418 8th Cir. 1987).

The standard for issuing temporary injunctive relief is the familiar three-part test: 1 )whether the plaintiff is likely to prevail on the merits; 2 ) whether the balance of irrepa rab ledamage favors the issuance of a temporary injunction; and 3 ) whether the publ ic intere stsuppor ts granting an injunction. Life of the Land v. Ariyoshi, 59 Haw . 156, 158, 577 P.2d 1116,1118 1978). As explained above, Plaintiff has no likelihood of succeeding on the meritsbecause a) the doctrines of separation of powers and political ques tion preclude th is Court fromgran ting the relief Plaintiff seeks, b) Plaintiff and the th ree individuals lack stand ing , and c hisreading of Article I, section 23 is completely incorrect as a matter of both law and logic.

1 Neither PlaintiffNor the Individuals Will Su ffer Irreparable HarmIf the Injunction is DeniedPlaintiff has provided no evidence of any harm to himself much less irreparable harm

if the Court declines to issue a restraining order to enjoin the Legislature from doing its job Theindividuals likewise provide no evidence of any irreparable harm and instead rely solely on thei r

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own value preferences against same-sex marriage. As already noted, neither Plaintiff nor theindividuals have standing to bring a suit to en join the legislative process. Their valuepreferences regarding same-sex marriage may be, and probably have been, expressed to theLegislature in the ongoing spec ial session. That is the proper place for such expression.

By contrast, the irreparable harm to the State and its people should th is Court stop thelegislative process, even for a moment, cannot be overstated. A ruling that this Court hasauthority to tell the Legislature what bills it can and cannot consider would be contrary to themost fundamental notions of the States tripartite structure would violate the Constitution seeArt. III, section the legislative power is vested in the legislature, and would turn thelegislative process on its head. discussion above; North Dakota ex rel. Aamoth v. Sathre,110 N.W.2d 228, 230 N.D. 1961 stating that it is no part of the judicial function to interferewith the constitutional processes of legislation and that courts will not entertain a suit to test theconstitutionality of a proposed ac t of the legislature on the ground that if such act is enac ted , itwill interfere with the constitutional rights of the litigant.

If this Court enjoins the Legislature and Governor from carrying out their constitutionallymandated duties because certain individuals dont like the pending bill, this would be a tru lydangerous slippery slope. Every bill would potentially be subject to sui t by those who oppose abills intent. The courts would become super-legislators, providing advisory opinions on thehundreds of proposed bills introduced every session before they become law . The Legislatureand the courts would come to a grinding halt. Same-sex marriage, the environment, taxes,government employees, appropriationsissue after issuewhere will it end? Infringement ofthe legislative process by this Court would constitute harm that could never be remedied. On theother hand, Plaintiff will suffer no harm at all should the temporary restraining order be denied.The balance of harm falls clearly on the side of denial of the restraining order .

2. The Public Interest Also Favors Denying an Injunction

The individuals assert that alleged and unsubstantiated speculative harms will befall the Stateshould the Legislature pass a same-sex marriage bill. Alons discussed above. At the sametime they ignore the real and substantial harms happening to same-sex couples now becauseHawaii does not recognize same-sex marriages. Garden State Equality v. Dow, 2013 WL5687193 N.J. Oct. 18, 2013 denying New Jerseys request for an injunction pending appealand stating tha t same-sex couples who cannot marry are not treated equally under the law today.The harm to them is real, not abstract or speculative. .525 51_1 DOC

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Plaintiff and the individuals argue tha t the public interest favors granting an injunctionbecause the public has a vested interest in knowing that Hawaiis cultural norms will be foreverchanged. This makes no sense. A restraining order would hal t the legislative process; it wou ldnot provide a means of communicating what cultural norm s are supposedly going to bechanged. There is no public interest in enjoining the Legislature from doing its job. On thecontrary the public interest favo rs ensuring the legislative process remains unmolested by thecourts so that the Legislature may perform its duties under the constitution. Only if and when alaw is enacted should a person with proper standing be allowed to challenge the law as enacted.

CONCLUSIONPublic policy debates are the hea rt of the political process. That process is playing out

now at our State Capitol with exactly the sort of uninhibited robust and wide open deba tethat American democracy envisions and celebrates. New York Times Co. v. Sullivan 376 U.S.254 270 1964. Plaintiff asks this Court to short circuit tha t debate and interfere with the twoelected branches of government as they exercise authority granted to themand them alonebythe Hawaii Constitution. A court enjoining the two other branches of government fromundertaking these functions would be akin to banning this Court from say[ing] what the law is.Marburv v. Madison 5 U.S. 137, 177 1803. This is what the Legislature does: legislate. Raw.Const. Art. III This is what the Governor does: he signs bills into law. Haw . Const. Art. III 16. This Court may not usurp those roles

Even if all the defects detailed above could be cured Plaintiff is fundamentally mistakenabout the interpretation of Art. I, section 23. The provision clearly allows but does not requirethe Legislature to limit marriages to opposite sex couples. This is crystal clear from the text andthe history of the provision. Plaintiffs contention to the contrary is baseless. The mot ion fortemporary restraining order must be denied.DATED: Honolulu Hawaii November 5, 2013

7 t

7 EI RE MARIE IHADeputy Attorney GeneralAttorney for Sta te Defendants

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THE SN TTWENTYSEVENTH LEGISLATURE 2013 b NT T OF W II J N Z 3

ILL R N TRELATING TO THE PUBLIC LAND DEVELOPMENT CORPORATION

BE IT ENCTED BY THE LEGISL TURE OF THE STTE OF H WIISECTION 1. Act 55 Sessio n Laws of Hawaii 2011 A ct 55

codified as ch pter l7 lC Hawaii Revised Statutes cre ted th e3 public la nd develo pment corpor tio n Section l7 lC -1 Haw aii4 evise Statutes states in pertinent part:S The purpose of this ch pter to create a vehicle and process to make optimal use of pub lic land for the economic environm ental and social benefit of the people8 of Hawaii . This chap ter establishes a public corpo r tion to dm in ister an pp rop ri te and culturally sensitive

public land development pro gram . The corpor tion shall coord inte and dm iniste r programs to make optim al use of 2 publi c land while ensurin g that the pub lic land is maintained fo r th e people of Hawaii. 4 The legislature finds that Act 55 has engendered5 significant pub li c concern and scrutiny due in part to th e f ct6 that projects underta ken pursuant to Act 55 are exempt from7 state and county law s regard ing land use zoning and8 construction st nd rds fo r subdivisions development and

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Page

improvement of la nd. In add ition concerns have been raised2 regard ing inadequate no tice given to th e pub lic to testify on3 th e exemption prov isions The exemptions coupled with th e4 manner in which Act 55 was passed have led to distrust and5 uncertainty of th e corporations intentions and development6 plans Despit e efforts to allay concerns many ind iv iduals and7 organizations particularly environm ental and Native Hawaiian8 organizations have expressed support fo r legislation to repe l9 Act 55

The legislature further finds that th e implem entation of Act 55 f ails short of ensuring that th e pub lic la nd is mintined fo r th e people of Hawaii. The intent of th e legislature is o ensure that th e public la nds of Hawaii are4 used and adm inis te red in an equ itab le and transparent manner5 that should not necessarily be relegated to administrative6 decisionmking or rule making on an ad hoc basis While th e7 op tim iza tion of th e use of pub lic lands is a m erito rious goal8 with th e potential to significantly benefit th e people of9 Hawaii th e means of ch ieving this goal requ ires a greater2 respec t for existing laws and procedures and greater assurance that th e co rpo ra tion is the veh icle that will produce economic22 environm enta l and social benefit for the people of Hawaii.

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Page3 NO

The legisl ture further finds that th e county councils of Kauai and Maui have adopted resolutions urging th e legislture3 to abo lish the pub lic land development corpora tion by repealing4 chap ter l7 lC Hawaii Revised Statutes The Honolulu ity5 council has considered a similar resolution but has filed to6 adopt such resolution at this tim e.

7 The purpose of this Act is to repeal chap ter l7 lC Hawaii8 Revised Statutes th e public la nd development corporation 9 SECTION 2. Section 1712 Haw aii Revised Statutes is

amended to read as fo llow s: l7l Definition of public lands Public lands means lands or interest therein in th e S tate c lassed as government13 or crown la nds prev io us to August 15 1895 or acqu ired or14 reserved by the governm ent upon or subsequent to that date by15 purchase exchange escheat or the exerc ise of the right of16 em in ent domain or in any other manner; inc luding lands accre ted17 fter May 20 2003 and not otherw ise awarded submerged lands18 and la nds beneath tidl w ate rs that are suitable fo r19 reclam ation together w ith reclaim ed la nds that have been giv en20 the status of pub lic lands under this chap te r except:21 1 Lands designated in section 203 of the Hawaiian Homes22 Commission Act 1920 as amended;

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Page4 S

2 Lands set aside pursuant to law fo r th e use of th e United States3 3 Lands being used fo r roads and streets4 4 Lands to which th e United States relinquished the5 abso lu te fee and ownership under section 91 of th e6 Hawaiian Organic Act prior to the adm ission of Hawaii

7 as a state of the United tates un less subsequen tly8 placed under th e con tro l of th e board of la nd and9 natural resources and giv en th e status of public lands

in accordance w ith the state constitution th e Hawaiian Homes Commission Act 1920 as amended or other laws;

3 5 Lands to which th e University of Hawaii holds titl4 6 Lands to which the Hawaii housin g finance and

5 develo pment co rpo ration in t corporate capacity6 hold s titl7 7 Lands to which the Hawaii community development

8 authority in its corporate capacity hold s titl9 8 Lands to which the departm ent of agriculture holds

2 titl by way of foreclosure vqlun tary surrender or2 otherw ise to recover moneys lo aned or to recover22 debts otherw ise owed th e departm ent under chap ter 167;

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Page 5 SD D NO / 9 Lands that are set aside by th e governor to th e Aloha Tower development corporat ion; lands leased to the3 Aloha Tower development corporat ion by any department4 or agency of th e State or lands to which the Aloha5 Tower development corporat ion holds title in its6 corporate capaci ty ;

7 10 Lands that are set aside by th e governor to th e8 agribusiness development corporation; lands leased to9 th e agribusiness development corporat ion by any

10 department or agency of th e State or lands to which th e agribusiness development corporation in its corporate capacity holds title and3 11 Lands to which the high technology development4 corporation in its corporate capacity holds title [-i

and12 Lnnds which arc set aside by th e governor to th c

u opm nt corporat ion; lands leased -toth e public land development corporation by any

i r i nr Th-nTh r.. in

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6

7

8

920

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Page6

SECTION 3. Sectio n 171-64,7 , Hawaii Revised Statutes is2 amended by amending subsection a to read as fo llow s:3 a This section app lies to all lands or interest therein4 owned or under the control of state departm ents and agencie s5 classed as government or crown la nds previous to August 15,6 1895, or acqu ired or reserved by th e government upon or7 subsequent to that date by purchase, exchange, escheat or the8 exercise of the right of eminent domain , or any o ther manner ,9 including accreted la nds not oth erw ise awarded, submerged lands,

10 and lands beneath tidal wate rs which are suitable fo r reclam ation together with reclaim ed la nds which have been given the status of public lands under this chapter inc luding 3 1 Land set aside pursuant to law fo r the use of the

4 Unite d States5 2 Land to which th e United States relinquished th e

6 abso lu te fee and ownership under section 91 of the17 Organic Act prior to th e adm issio n of Hawaii as a8 state of the United States

9 3 Land to which the University of Hawaii holds titl20 4 Land to which the Hawaii housing finance and2 development corporation in its corporate capacity22 holds titl

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age

5 Land to which th e departm ent of agriculture hold s2 title by way of fo rec losure vo lun tary surrender or3 o therw ise to recover moneys lo aned or to recover4 deb ts otherw ise owed the departm ent under chapter 167;5 6 Land that is set aside by the governor to th e Aloha6 Tower develo pment corpora tion or la nd to which th e

7 Aloha Tower development co rpo ration hold s title in its8 co rpo ra te capacity 9 7 Land that is set asid e by the governor to the

agribusiness development co rpo ration or land to which11 th e agribusiness development corpo ration in its co rpo rate capacity hold s title and

3 8 Land to which the hig h technology development4 corporation in its corporate capacity holds title

and6 { 9 Land that is so t asid o by thc govorn or to tho publi-e7 -I-and dovclopmcnt corporation or la nd to which thc8 public land dcvclopm en erporation--he-s-4tl -e -i-n--4-9 o rpor capacity] 2 SECTION 4. Section l73A-4 , Hawaii Revised tatutes is amended by amending subseciori c to read as fo llow s:

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Page 8 c The board shall in consulta tion with th e senate

president and the speaker of the house of representativesrequire as a cond ition of th e receipt of funds that state and

4 county agencies receiv ing funds under this chap ter provide a5 conserva tion easement under chap ter 198, or an agricultural6 easement or deed restriction or covenant to th e departm ent of7 land and natural resources th e departm ent of agriculture; the8 agribusiness development corporation [-the--p 4el-and9 dcvolopmcnt corporation ] an appropriate la nd conservation

organization; or a county , state or federal natural resource conservation agency, that shall run with the land and be2 recorded with the la nd to ensure th e long-term protection of3 land havin g value as a resource to th e State and preserve the4 interests of the State The board shall requ ire as a condition5 of the receipt of fu nds that be an owner of any such6 conserva tion easement.7 SECTION Section 173A5, Hawaii Revis ed Statutes is8 amended by amending subsec tion i to read as fo llow s:9 i Based on applications from state agencie s counties,2 and nonprofit land conserva tion organizations the departm ent, in consultation w ith the senate president and speaker of the house of representatives shall recommend to th e board spec ific

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S

I parcels of land to be acquired restricted w ith conservation easem ents or preserved in similar fash ion The board shall3 review the selections and approve or reject th e selections4 accord ing to th e availability of moneys in th e fund. To be5 eligible fo r g ran ts from th e fund state and county agencies and6 nonprofit land conservation o rgan izations shall subm it7 applications to th e departm ent that con ta in 8 1 Conta ct inform atio n fo r the project9 2 A description of th e project

3 The request fo r funding; 4 Cost estim ates fo r acquisition of the interest in th e2 la nd;

3 5 Location and characteristics of the land; 6 The projects public benefits inc lud ing but not5 limited to where public access may be practicable or6 not practicable and why; 7 Resu lts of th e applicants consultation with th e staff8 of the departm ent th e departm ent of agriculture arid9 th e agribusiness development corporation[ nnd th c20 publi c land dcvclopmont corporation] regarding th e2 maxim ization of public benefits of th e project where22 practicable and

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PagelO

8 Other similar related or re levan t inform ation as2 dete rm ined by the departm ent. 3 SECTION 6. Sectio n 206E4 Haw aii Revised Statutes is4 amended to read as fo llow s:5 2O6E4 Powers; generally Except as otherw ise lim ited6 by this chap ter the authority may:

7 1 Sue and be sued;8 2 Have a sea l and alter the same at pleasure;9 3 Make and execu te con tracts and all other in struments

necessary or convenie nt for th e exerc ise of its powers and functions under this chap ter;2 4 Make and alter bylaws fo r its organ ization and3 internal management;4 5 Make rules with respec t to its projects operations5 properties and facilities which rules shall be in

6 conformance w ith chap ter 9 ;7 6 Through its execu tive director appoint officers8 agents and employees prescribe their du ties and

9 qualifications and fix their salaries without regard2 to chap ter 7 ;

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Pagell

7 Prepare or cause to be prepared a community development plan for all desig nated community3 developmen t districts4 8 Acquire, reacqu ire or contract to acquire or5 reacquire by grant or purchase real personal or6 mixed property or any interest the re in to own, hold ,7 clear improve, and rehabilitate and to sell assign8 exchange, transfer convey, lease or otherw ise9 dispose of or encumber the same;

9 Acquire or reacqu ire by condemnation real personalor mixed property or any interest the rein for public

fcilities including but not limited to streets3 sidewalks, parks, schools, and other pub lic

4 impro vements ;5 10 By itslf or in partnership with qualified persons,6 acqu ire reacquire construct reconstruct7 rehabilitate improve, alter or repair or provide for

8 th e construction reconstruction im provement,9 alteration or repair of any project own, hold , sell2 assign transfer convey, exchange, lease or2 otherw ise dispose of or encumber any project and in the case of the sale of any project accept a purc hase

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Pagel SBm NO

money mortgage in connection therew ith and repurchase or oth erw ise acquire any project which the au thority3 has theretofore sold or otherw is e conveyed4 transferred or disposed of5 11 Arrange or contract fo r the pla nning rep lanning6 opening grad ing or c losing of streets roads7 roadways alleys or other p laces or fo r th e8 furnishing of facilities or for the acquisition of9 property or property rights or fo r the furn ish ing of

property or services in connection with a project12 Grant options to purchase any project or to renew any

2 lease en tered into by in connection w ith any of its3 projects on such term s and cond it ions as deems4 advisable5 13 Prepare or cause to be prepared p lans specifications

designs and estim ates of costs fo r the construc tion 7 reconstruction rehabilitation im provement8 alteration or repair of any project and from time to

9 time to modify such plans specifications designs or estimates2 14 Provide adviso ry consultative training and22 educational services technical assistance and advice

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Pagel3

to any person partnersh ip or corporation either public or private to carry out the purposes of this3 chap ter and engage th e serv ices of consultants on a4 contractual basis for rendering professional and5 technical assistance and advice6 15 Procure insurance against any lo ss in connectio n w ith7 its property and other assets and operations in such8 amounts and from such insurers as deem s desirable9 16 ontract fo r and accept gifts or gran ts in any fo rm

from any public agency or from any other source; 17 Do any and all th ings necessary to carry out its purposes and exercise th e powers given and granted in3 this chapter and4 18 Allow satisfaction of any affo rdab le housing5 requ irem ents imposed by the authority upon any6 proposed development project th rough the construc tion7 of reserved housing as defined in section 206ElO l8 by a person on land loca ted ou tside the geographic

9 boundarie s of th e authoritys jurisdiction provid ed2 that the authority shall not perm it any person to make2 cash payments in lieu of provid ing reserved housing22 excep t to account fo r any fractional unit that results

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Pagel4 ao NO 1 after calculating th e percentage requirem ent ginst2 residential oor space or total number of units3 developed The substituted housin g shall be located4 on the same island as the development project and5 shall be substantially equal in valu e to th e required6 reserved housing units that were to be develo ped on7 site The authority shall establish the fo llow ing8 priority in the development of reserved housing:9 A W ithin the community development district10 B W ithin res im media tely surrounding th e11 community development district12 C Areas w ithin the central urban core3 D In outlying areas w ithin th e same is l nd as th e14 develo pment project15 The Hawaii community development authority shll16 adopt rules relating to the approval of reserved7 housin g that re developed outs ide of a com mun ity18 development district The ru les shall in clude but

9 are not limited to the estb li shm ent of guidelines to ensure compliance w ith th e above priorities{ and l 9 Aeziot thc public land dcvclopmcnt corportion22 171 0 in idcntifying publi e

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Page 15 s B Nlands that may be suitable for development carryingon marketing analysis to determine th e bes t revenue

enti f4c.r in g into pub-i i-c r at ag re cmonto to

appropr iat cly dove lo p th e p ubl ie and sdont if ie-dprovidingthe eader sh fo r the dcvelopment

dovclopmcnt oppor provided uei-uu LI1U

nh jpe44e

authori. t k . HSECTION 7. Chapter l7lC Hawaii Revised Statutes is

repealed.SECTION 8. a Any funds appropriated to the department

of land an d natural resources pursuant to Act 55 Session Lawsof Hawaii 2011 that are unexpended and unencumbered as of theeffective date of this Act shall be deposi ted into th e landconservat ion fund established pursuant to section 173A 5 HawaiiRevised Statutes on the effective date of this Act.

b Any proceeds generated an d deposited into th e stadiumfacilities special fund pursuant to Act 282 Session Laws ofHawaii 2012 that are unexpended an d unencumbered as of th e

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SB NO

Report TitlePublic Land Development CorporationDescript ion:Repeals chapter 7 C FIRS relating to the public landdevelopment corporat ion Repeals requirement that Hawaiicommunity development authority assist th e public landdevelopment corporat ion in certain specified areas

The summaiy description of legislation appearing on this page is for informational purposes only and isnot l gisl tion or evidence of l gisl tiv intent

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C A M A

S under ection 10 of rcle I of the Constitution of the State Ha\ au, the Goverror may corwene both houee of the egislature or the Senatealone special session; and

WHEAS the Governor belleves that, keeping with the UnitedStates Supreme OLIIiS recent decision United States Windsor133 S. Ct. 26752013, the State of Hawaii should extend to samesex ooupIe the right to marry andreceive all the same rights, benefits, protections and responsibilities of marriage asoppositesex couples receive under the laws of this State;lOWTi1EFO, NEIL ABE ROROMBIE, Governor of the State ofHawaII, pursuant to the power vested in me by Section 10 of ArIIcle [ii of theConstitution of the State of Hawaii, do hereby convene both houses of the Ywentyseventh Lecislature of the State of Hawaii n seciasession on the th day of tobe2013 at 0 ocbck primarily or e cc siceaIIon ci legisistion to prcvkemarriage equality the State of Hawaii,

DOWE at the State CapitoL Honolulu, Stai:e ofawsiithis 9th day of .September, 201

ElLAB2RCROMBiFofJPRCVED AS ? iI1 ._/ David MLoii.ttomney Genera[

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NEIL ERCROMSIE DVID NLOUGOVERNOR AORNEY GENEpL

RUSS LL SUZUKSTT OF HWH FIRST EPUTYTTOPNEY GENEEPRTMENT OF THE TTORNEY GENERL 5 QUEEN STREET

HONOLULU HWII 96813808 586-1500

October 14 2013

The Honorable Les Ihara JrSenator Tenth DistrictThe Twenty_Seventh Leg isla tu reState of HawaiiS ta te C ap ito l Room 220415 South eretan ia StreetHonolulu Hawaii 96813Dear Senator Ihara

Re: Constitutional Authority of the Hawaii StateLegislat to Enact Legislat Recognizing M arriagesBetween w Indiv iduals of the Same SexThis letter responds to your written reque datedSeptember 25 2013 in which you asked for an Attorney Generalopinion on the th ree question presen ted belowYou informed us that your qustio arise from argumenade by OPponents of the marriage equality bill circulated by theGovernorrs Office on September 9 2013 the Proposed BillAccording to your request you note that Opponents to theProposed Bill contend that it cannot be enacted w ithout anamendment to the Hawaii Constitu tion that sPecifically au thorizesthe Legislat to pass the Proposed Bill More sPecificallyyou informed us that Opponents to the Proposed Bill base their

osition on their conclusion that article I section 23 of theHawaii onstitu tion merely gives the Legislat the power toreserve marriage to OPposite_sex couples and does not gran t power to enact a law recogn izing the right of samesex couples tomarryI TO S PRESENTS

A Whether the gislt may enact legislati thatwould recognize marriages between tw individuals of the same sexw ithout the electorate or the Legislature amending article Isection 23 of the Hawaii Constitution; pini to en Thare re Legisla tive AUthorjt Merrieg

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The Honorable Les Ihara JrOctober 14 2013Page

B Whether the Hawaii S ta te Legislature has the authorityunder the Hawaii Constitution to pass the Proposed Bill; andC Whether the Proposed Bill is consistent with th efederal and state constitutions given the Legislaturesauthority as described in article I section 23 and article sec tion 1 of the Hawaii Constitution

II SHORT NSWERThe answer to all three questions is an unqualified yes.The authority to enact legislation recognizing marriages between

two individuals of the same sex is vested in the Hawaii StateLegislature As detailed below, the plain language of article Isec tion 23 does not compel the Legislature to limit marriages toone man and one woman; it gives the Legislature the option to doso. No amendmen t to the Hawaii Constitution is necessary to givethe Legislature the authority to enact the Proposed Bill shouldthe Legislature choose to pass it And the sub ject matter of theProposed Bill is consistent with the Legislatures authorityover all rightful subjects of legislation as described inarticle III section 1 of the Hawaii Constitution Each ofthese po in ts is discussed in more detail below.111 CKGROUND

In 1991, three same-sex couple s sued the S ta te of Hawaii,complaining that the States refusal to issue marriage licensesto samesex couples violated the Hawaii Constitution In 1993the case reached the Hawaii Supreme Court. Baehr v. Lewic, 74Haw 530, 852 P.2d 44 1993, reconsideration gran ted in part74 Hew 645, 852 P.2d 225 1993 plurality of the HawaiiSupreme Court held that restricting marriages to oppositesexcouples d iscrim inated on the basis of sex: on its face and asapp lied HRS 5721 denies same-sex couples access to themarital status and its concom itant rights and benefits thusim plicating the equal protection clause of article I sec tion [of the Hawaii Constitution] Baehr, 74 Haw 530, 581, 852p.2d 44 67 Because discrimination on the basis of sexconstitutes a suspect classification the Hawaii Supreme Courtdete rm ined that the tril court erred by applying a rationalbasis review of the constitutionality of the law. The SupremeCourt remanded the case to the tril cou rt fo r review based on astandard of strict scrutiny Id

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The Honorable Les hara JrOCtober 14, 2013Page 3

On remand, the trial court ru led that adhering to thetraditional definition of marriage d id not meet Strict cruand violated the Hawaii ConStuon Baehr v Nike No.911394 1996 694235 Haw. Cir. Ct. 1996 Implementat. ofthe trial court ru ling was stayed while an appeal of theruling was Pending

In 1994, the Legislat amended the marriage licen5ngstatute to Clarify and Confirm that marriage is lim ited toPPosite_sex couples Section of act 217, Session Laws ofHawaii 1994, amended section 5721, Hawaii Revised StatutesPBS, so that its in troducto ry language read and still reads.In order to make valid the marriage contrac t which shall bonly between a man and a Woman, t sha be necessary that1994 Paw Seas Laws Act 53j emphasis added

Act 217 was the first of severa l legislat actions takenin response to Baehr, culm inating with the Passage andratification of an amendment to the Hawaii Constitu tion thatempowers the Legisla to reserve marriage to PPosite_sexcouples Article I, section 23, of the Hawaii Constitu tion wasproposed by the Legislature as House Bill No. 117, 1997 PawSass Laws 1246, and approved by the electorate on November 31998.1 The marriage amendment succinctly provides: Thesex coupleegis]at shall have the Power to reserve marriage to OPPosite

Shortly after rtile I, sec tion 23, was ratified inNovember 1998, the Hawaii Supreme Court in Baer d irec ted theparties to provide additiona briefing with respect to the imp tof the marriage amendment on the case year later the SupremeCourt issued a four_page summary disposition order Concludingtha t in light of the m arriage amendment, the case was moot.No. 20371 Haw Dec 9, 1999 SDO It reversedthe S tate .the tril Court decision and directed it to en ter iudgme fo rDuring the 1997 session of the Hawaii S tate Leaislature and asa companion to House Bill No. 117, the Legisla estab lishedrecip rocal beneficiary relationshp in Hawaii to make certa inrights available to couples who were legally prohib ited frommarrying one ano ther. House Bill No 118 was enacted as Rct 383,

PBS1997 Paw Sass. Laws 1211 Codified in part at chapt C

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The Honorable Les Ihara , JrOctober 14, 2013Page 4

During the legal and legislative events occurring in Hawaiiand with the possibility of marriages betw een samesex couplesbeing recognized in some states but not others Congress in 1996enacted the Defense of M arriage Act DOMA Pub. L No 104-199,110 Stat 2419 1996 The effects of DOMA were to confirm theindividual states rights to define marriage and re fu se rorecognize m arriages from other states that define it differentlyand to define marriage fo r federal purposes as between one manand one woman.In 2011, the Legislature added to the HRS new chapter,chap ter 572B, to allow two individuals of th e same sex or

opposite sex to n t r n to a civil union, which is defined insection 5723-1 as a union between two individuals Ind iv idualsen tering in to a ivil union are requ ired to meet the samerequirem ents as individuals entering into a marriage pursuant tochapter 572, HRS except that individuals entering the civilunion must be at least e igh teen years of age pursuant to section572B-23 as opposed to fifteen years of age pursuant to section572-1 2 to enter into a marriage Pursuant to sec tion 572B9ll couples who enter n to a civil union shall have ll of thesame rights benefits protections and responsibilities underlaw as are gran ted to those who contract ob ta in a licenseand are solemnized pursuant to chapter 572 [marriage law] In June 2013, in United S ta tes v. Windsor, 133 S. Ct. 26752013 the United States Supreme Court overturned section 3 ofDOMA cod ified a t 1 U.S.C. 7, holding that DOMAs definitionof marriage was unconstitutional as a deprivation of the libertyof the person as protected by the Fifth Amendment of the U.S.Constitution Since that decision was announced, several federa ldepartm ents have dete rm in ed that same-sex couples legally marriedin jurisdictions that recognize their m arriages w ill be treatedas married fo r purposes of federal benefits wherever theyreside

See, eg Rev. Rul. 2013-17, 201338 I.R .B . 201 U.S. InternalRevenue Serv ice ruling that samesex couples, legally married injurisdictions that recognize their m arriage, will be rreated asmarried fo r federal tax purposes; U.S. Department of LaborTechnical Release 2013-04, at Sept. 18, 2013 recognizingmarriages to include same-sex m arriages that are legallyrecognized as m arriages under any state law; Memorandum forSecretaries of the Military Departments Under Secre tary ofOpinion to en hr re Leqisia tve uth ority on Marriag e

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The Honorable Les Ihara Jr.Octo ber 14, 2013Page

On September 9 2013, th e Honorable Neil Abercrombie,Governor of Hawaii, called a specia l session of the Legisla tu reto consider the Pro posed Bill. The Pro posed Bill providesmarria ge equality to all couples by amending section 5721 HRSto change the refe rence to m arriage betw een a man and a womanto read between two individuals. Changes and add itions too ther relevant sections of th e RS are also proposed. If theLegislature chooses to enact the Proposed Bill all couple s inHawaii will have the choic e to en ter in to a marriage and obtainth e benefits and responsibilities flow ing from both state andfederal law .IV. ANALYSIS

A. Article I Section 23, Allows But Does Not Require th eLegislature to Lim it M arriages to Opposite-Sex CouplesArticle I sec tion 23, of the Haw aii Constitution provides:The legislature shall have the power to rese rve marriage toopposite sex coup les. By its plain la nguage this provisiondoes not require that marriages be lim ited to opposite-sexcouple s. Instead the sec tion prov ides that the Legislaturepossesses the authority to limit marriages to opposite-sexcouple s by statute should it choose to do so.

Defense fo r Personnel and Readiness dated August 13 2013e x te nding benefits to same-sex spouses of military members .Unlik e other states that have passed constitutional amendmentsexpressly banning marriage between ind iv iduals of th e same sex,Hawaii s electorate in stead chose to giv e the Legislature theauthority to make this determ ina tion . This conclusion is madeeven clearer by comparing article I section 23, with theconstitutional prov is ions that have been enacted in some other

states. Some other states constitutions clearly ban theirlegislatures from recognizing m arriages betw een two ind iv idjalsof the same sex . See, e.g. Ala ska Const. art. I 25 To bevalid or recognized in this State marria ge may exist onlybetw een one ian and one woman.; Cob . Const. art. II 31Only a union of one man and one woman shall be valid orrecognized as a marriage in this state. ; Kan. Const. art XV 16 M arriage shall be constituted by one man and one womanonly. All o ther marriages are declared to be con trary to th epublic policy of this state and are void. ; Va. Const. art. IODjfljofl to Sen Ihar a re Legisia tr e uth rit 22 ar lace

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In interpreting constitutional provisions, the Haw aiiSupreme Court has expressly stated that the words used areclear and unambiguous they must be construed as written.Wetland v. Lingle, 104 Haw. 128, 140, 85 P.3d 1079, 1091 2004In this regard , the settled rule is that [i]n theconstruction of a constitutional provision th e wordsare presumed to he used in their natural sense unless thecontex t fu rn ishes some ground to control, qualify or enlarge[them] Pray v. Judicial Selec tion Comxnn, 75 Haw. 333, 341,862 P.2d 723, 727 1993 quoting Cobb v. S tate , Haw. 564,565, 722 P.2d 1032, 1033 1986 some internal quotations andcittions om itted , ltertions in original Article I, section23, of the Hawaii Constitution is unambiguous. Here, the pla inmeaning of rticle I, sec tion 23, allow s but does not require theLegislature to limit marriages to one man and one woman.

The intent behind rticle I, sec tion 23, was alsounambiguous; the legisl tive history confirm s thisinterpret tion See State v, Kahlbaun, 64 Haw. 197, 20102, 638P.2d 309, 314 1981 stating that if a constitutional provisionis ambiguous, extrinsic aids may he examined to determ ine th eintent of the fram ers That the constitutional amendment wasdesig ned to maintain the Legislatures discretion is manifestfrom the Legislatures stated find ing in section of House BillNo. 117, which proposed the amendment:The legislture further finds that the question ofwheth er or not the S tate should issue marriage licensesto couples of th e same sex is a fu ndamental policyissue to be decided by the elected representatives ofthe people. This constitutional measure is thusdesigned to confirm that the legislture has the powerto reserve marriage to opposite sex couple s and toensure that the legislture will remain open to thepetitions of those who seek a change in the marriagelaws, and that such petitioners can be considered on anequal basis with those who oppose a change in ourcurren t marria ge sttutes

1997 Haw. Sess. L. 124647 emphasis added.

15-A [O ]nly a unio n between one man and one woman may be amarriage valid in or recognized by this Commonwealth and itspoliticl subdivisions. .Opinio n to Sen h in r egisl tove tuthorti cr rige

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Article I section 23, therefore leaves it to theLegislature to choose wheth er to restrict marriage to opposite-sex couples Under curren t Hawaii law , marriages under chapter572, HRS are limited to oppositesex couples The Pro posedBill if the Legislature enacts t will reflect new choic e:to recognize m arriages betw een two individuals of the same sex inthe same manner as marriages are Presently recognized between twoindividuals of the opposite sex Because it confirm s that thischoice remains w ith the Legislature article i section 23, isnot a bar to the Legislatures considera tion and enactment of th eProposed Bill o amendment to the Hawaii Constitu tion isnecessary fo r the Proposed Bill to be effective if enacted B Recognizing Marriages Between Two Indiv iduals of theSame Sex Is Not Inconsistent with the HawaiiConstitu tionUnder article section 1 of the Hawaii Constitu tion the Hawaii State Legislature exercises the legislative power:The legislative power of the State shall be vested in alegislature which shall consist of two houses asenate and a house of representatives powr

tuto of the United Stat [B h ed .]As explained above, article i section 23, does not prevent theLegislature from considering or enacting the Proposed Bill oother prov isions of the Hawaii Constitution address thisparticular subject Enacting the Proposed Bill therefore otinconsisten ti with the Hawaii Constitution

The gran t of authority to the Legislature in article iiisection 1 empowering t to address ll rightful subjects oflegislation is extrem ely broad Under our federal system ,state governments may enact any legislation chat they determ ineis in the pub lic interest as long as th e legislation isconsistent with the federal and state constitutions See Ronald D Rotunda et at. Treatise on Constitutional Law at 4674th ed. 2007 [Sitate governments are not creatures oflim ited powers: they have a general po lice power intrinsicpower to protect the health safety welfare or morals of personsw ith in their jurisdictioflr

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The Legislature exercises this authority in myriad ways.Most im portan tly for p resen t purposes defin ing th e prerequisitesand rights of marriage is an area of law traditionally reservedto the states. The United S tates Supreme Court has recogniz edthat the regulation of domestic relations is an area that haslong been regarded as a virtually exclusive province of theStates. Sosna v. Iowa, 419 U.S. 393, 404 1975 The SupremeCourt recently confirm ed this authority noting that the stateshave the authority to define who may enter in to a marriage:The recogn ition of civil marriages is central to statedom estic relations law applicable to its residents andcitizens. The definition of marriage is thefoundation of the States broader authority toregulate the sub ject of dom estic relations withrespect to the protection of offspring propertyinterests and the enforcement of maritalresponsibilities.

Windsor, 133 S. Ct. at 2691 citations internal quotation marks,and brackets om itted Before Windsor, the federa l governmentdefined m arriage as a egal union between one man and one womanas husband and w ife. OM 3 U.S.C . 7 Windsor concernedthe effect of this definition on marriages between twoindividuals of the same sex that were recognized by variousstates The United States Supreme Court specifically noted thata state that chooses to recognize marriages betw een twoindividuals of the same sex is unquestionab ly acting w ith in itsauthority to regulate the sub ject of domestic relations: Inacting first to recognize and then to allow samesex marriagesNew York was responding to th e initiative of those who sought avoice in shaping the destiny of their own tim es. These actionswere w ithout doubt a proper exerc ise of its sovereign authorityw ith in our federal systemE.] Id . at 269192 emphasis a