9th Circuit Hears Oral Arguments In 3 Same-Sex Marriage Cases

The U.S. 9th Circuit Court of Appeals yesterday heard oral arguments in cases from Idaho, Nevada and Hawaii challenging same-sex marriage bans. Audio recordings of the full arguments in each of the cases is available: Latta v. Otter (Idaho); Sevcik v. Sandoval (Nevada); Jackson  v. Abercrombie  (Hawaii). Subsequent to the district court opinion being appealed, Hawaii legalized same-sex marriage. (See prior posting.)  MSNBC, reporting on the oral arguments, called it "a rough day for marriage equality opponents."

Hawaiian Church Settles Qui Tam Action Charging It With Underpaying School System

AP reports that New Hope churches, one of the original defendants in a Hawaii qui tam whistle blower lawsuit, has agreed to settle for $775,000. However it will not admit wrongdoing as part of the settlement.  As previously reported, in State of Hawaii ex rel. Kahle and Huber v. New Hope International Ministries, (HI Cir. Ct., filed 3/22/2013), relators claim that  churches submitted false records and statements to deprive Hawaii schools of $5.6 million in unpaid or underpaid rent and utility charges for weekend use of school buildings, parking lots and facilities. Under the settlement, $200,000 will go to the relators who are responsible for the suit being filed, with the remainder going to the school system.

Hawaii Supreme Court Says Permit Requirement To Enter Reserve Did Not Infringe Free Exercise Rights

In State v. Armitage, (HI Sup. Ct., Jan. 28, 2014), the Hawaii Supreme Court held that the rights of Native Hawaiians are not infringed by a statute limiting entry into the Kaho'olawe Island Reserve only to those who obtain authorization to do so through a written application process.  Defendants claim they were traveling to the island to proclaim the right of the "Reinstated Kingdom of Hawaii" to the island. The court rejected defendants' arguments that their entry was protected by the Art. XII, Sec. 7 of the Hawaii Constitution which protects the right to engage in traditional and customary Native Hawaiian subsistence, cultural and religious practices. It also rejected their contention that the Native Hawaiian people have a fundamental right to reestablish an autonomous sovereign government. Finally the court rejected defendants' claims that their free expression and free exercise rights were infringed. The court held that the written application process required to obtain entry did not impose a substantial burden on defendants' religious exercise.

Chief Justice Recktenwald wrote a separate opinion in which Justice Nakayama joined concurring with these views, but dissenting as to an unrelated issue.

Court Upholds Hawaii Law Permitting Same-Sex Marriage

A news release from Hawaii's Department of Attorney General reports that on Jan. 29 a state trial court judge upheld the constitutionality under both the state and federal constitutions of Hawaii's Marriage Equality Act of 2013:

In his ruling from the bench, Judge Sakamoto noted the importance of marriage under the federal constitution, drawing an analogy to Loving v. Virginia, the landmark United States Supreme Court case that struck down state laws banning inter-racial marriage. He concluded that the Marriage Equality Act is consistent with Article I, section 23 of the Hawaii State Constitution, and that “same-sex marriage is legal.”

Article I, Sec. 23 of Hawaii's constitution provides: "The legislature shall have the power to reserve marriage to opposite-sex couples."

Hawaii Federal Court Rejects RFRA Claims In 2 Cannabis Cases

This week the Hawaii federal district court rejected Religious Freedom Restoration Act claims in two separate marijuana cases:

United States v. Christie, (D HI, Dec. 30, 2013), involves a motion in limine in the prosecution of Roger Christie, the founder and leader of The Hawaiian Cannabis Ministry, and Sherryanne L. St. Cyr, an ordained minister in the THC Ministry, who are charged with manufacturing, distributing and possessing marijuana.  In one opinion (full text) the court held that Defendants had established a prima facie case for raising a Religious Freedom Restoration Act defense.  In a second opinion issued the same day (full text), the court held the government had established a compelling interest in enforcing the Controlled Substances Act against defendants to prevent diversion of substantial amounts of marijuana to non-adherents of the church. Finding also that the prosecution is the least restrictive means to further that compelling interest, the court held that defendants ultimately are not entitled to present a RFRA defense at trial.

In Oklevueha Native American Church of Hawaii, Inc. v. Holder, (D HI, Dec. 31, 2013), the court dismissed a suit brought by the Native American Church of Hawaii and its founder Rex "Raging Bull" Mooney seeking a declaratory judgment decreeing that criminal prosecution under the federal Controlled Substances Act for consuming, cultivating, possessing or distributing of cannabis would violate plaintiffs' free exercise of religion in violation of RFRA. The court said in part:

No reasonable juror could infer, from what is presently in the record, that Mooney’s religion is anything more than a strongly held belief in the importance or benefits of marijuana. Even if this belief is sincerely held, and even if marijuana use is indeed beneficial, the court cannot conclude from the record that a reasonable juror could find that Plaintiffs’ belief is religious in nature....

Even if the evidence in the record did support the existence of a religion,... a reasonable juror could not conclude that the prohibition on cannabis constitutes a substantial burden on Plaintiffs’ alleged religion..... Mooney himself describes peyote as his religion’s “primary sacrament,” and lists a litany of other drugs his Church members use. Nothing in the record explains why relying on these other drugs instead of cannabis would be more than an inconvenience for Plaintiffs.

Hawaii Court Upholds State's New Marriage Equality Law

In Hawaii, a trial court judge rejected a state constitutional challenge to the Hawaii's marriage equality law that was signed by the governor yesterday. According to the Honolulu Star-Advertiser, Circuit Court Judge Karl Sakamoto held yesterday that the legislature has the inherent authority to define marriage. In 1998, Hawaii voters approved an anti-gay marriage constitutional amendment.  But unlike amendments in a number of other states, Hawaii's Art. I, Sec. 23 merely permits the state legislature to reserve marriage to opposite sex couples. Plaintiffs in the case, including a state representative, a Christian pastor and the head of Hawaii's Christian Coalition argued that in the 1998 amendment, voters intended to ban same-sex marriage. The court rejected this argument.

Hawaii Legislature Passes Marriage Equality Bill

Yesterday the Hawaii legislature gave final passage to SB1, the Hawaii Marriage Equality Act which will legalize same-sex marriage as of Dec. 2. One of the 19 representatives voting against the bill in the House was Rep. Jo Jordan, the first openly gay state legislator to vote against same-sex marriage.  She told Honolulu Magazine that her objections were in part based on a concern that the religious exemptions in the bill are too narrow.  The bill protects clergy who refuse to perform same-sex marriages or civil unions, and allows any religious organization or nonprofit that is "operated, supervised, or controlled by a religious organization" to refuse to provide goods, services or facilities for civil unions or marriages that are in violation of the organization's religious beliefs. According to the Honolulu Star-Advertiser, Gov. Neil Abercrombie has said he will sign the bill.  It is expected that he will do so today, beating Illinois to become the 15th state to legalize same-sex marriage.  The Illinois legislature passed marriage equality legislation last week (see prior posting), but Gov. Pat Quinn does not plan to sign it until Nov. 20. Shortly after the bill passed in Hawaii, President Obama issued a statement congratulating the legislature on its action, and saying that this made him even prouder to have been born in Hawaii.