Tuesday, January 3, 2012
The Civil Unions Law, Act 1, of Hawai'i became effective January 1, 2012.
In the last days of 2011, several religious groups sued for a Temporary Restraining Order (TRO) to stop the Act's implementation and prevent any enforcement against them. In a relatively brief opinion, federal district judge J. Michael Seabright denied the TRO in Emmanuel Temple v. Abercrombie.
The complaint seeking the TRO alleged that because Act 1 does not have a "religious exemption," the plaintiffs could suffer a First Amendment injury. However, the judge found that the claim was not justiciable because the plaintiffs lacked standing and their challenge was not ripe, noting that in many cases the "injury in fact" prong of the standing analysis coincides with an inquiry regarding ripeness.
The judge found that any threat of enforcement of Act 1 against the plaintiffs was "highly speculative." A number of unforseeable events would have to occur:
- A couple would have to ask plaintiffs to use a particular facility of theirs - - - which presumably would have to be a "public accomodation" - - - for a civil union made possible by Act 1;
- Plaintiffs would have to wrongly refuse based upon a protected ground;
- The couple, having been denied, would have to file a complaint with the Hawaii Civil Rights Commission;
- The state authorities would have to decide to proceed against plaintiffs.
The judge found it was equally speculative that a couple, having been denied, would chose to file a judicial action rather than an action with the Commission.
For ConLawProfs starting the semester with Article III justiciability, this could be the basis of a great class problem.
Situating the case outside that doctrinal framework, it is an example of religious groups filing federal actions against same-sex relationship recognition, as in New York, despite that state's religious exemption in the statute.
Further, it is yet another incident in the saga of same-sex marriage in Hawai'i; a good review and the latest litigation by same-sex couples challenging the civil union law for not providing marriage is here.
[image: Kahaluʻu Fishpond seawall and wedding chapel, Oahu, Hawaii, on National Register of Historic Places, via]