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1CC13-1-002899 #25

1CC13-1-002899 #25

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Published by Equality Case Files
McDermott v. Abercrombie - Plaintiffs' Reply in support of Temporary Restraining Order. Filed November 7, 2013
McDermott v. Abercrombie - Plaintiffs' Reply in support of Temporary Restraining Order. Filed November 7, 2013

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Categories:Types, Business/Law
Published by: Equality Case Files on Nov 14, 2013
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01/19/2014

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ST
ç;
ROBERT
K.
MATSUMOTO
 1330345QueenStreet,Suite
701
Honolulu
HI
96813
Telephone
(808)
585 7244
And
k.
M
JOHN
R.
DWYER
JR.
 1445
DwyerSchraffMeyer
 
Green
1800
PioneerPlaza
900
FortStreetMall
Honolulu
Hawaii
96813
Telephone
(808)
534 4444
Attorneys
for
PlaintiffsREPRESENTATIVE
BOB
McDERMOTT GARRETHASHIMOTO WILLIAM
E.K.
KUMIA
DAVID
LANGDON
IN
THE
CIRCUITCOURT
OF
THE
FIRSTCIRCUIT
STATE
OF
HAWAIIREPRESENTATIVE
BOB
 
CIVIL
NO.
13-1-2899-10KKS
McDERMOTT
GARRET
 
HASHIMOTO WILLIAM
E.K.
 
PLAINTIFFS’
REPLYMEMORANDUM
IN
KUMIA DAVID
LANGDON SUPPORT
OF
THEIRFIRSTAMENDED
 
MOTIONFORTEMPORARYRESTRAININGPlaintiffs
ORDER;
EXHIBITS
A
THROUGH
C;
 
CERTIFICATE
OF
SERVICE
vs.
 
)
Hearing
Date:
November
7,
2013
(Thursday)
GOVERNORNEILABERCROMBIE Hearing
Time:
8:30a.m.
SENATORDONNAMERCADO
KIM,
 
The
Honorable
Karl
K.
Sakamoto
REPRESENTATIVEJOSEPH
SOIJKI,
 
SENATORCLAYTON
HEE,
 
REPRESENTATIVEKARLRHOADS
Defendants.
 
 
PLAINTIFFSREPLYMEMORANDUM
IN
SUPPORTOF
THEIR
FIRST
AMENDED
MOTIONFORTEMPORARYRESTRAININGORDER
 OME
NOW
Plaintiffs
REPRESENTATIVE
BOB
McDERMOTT,
in
his
capacity
asa
member
of
the
State
of
Hawaii
of
Representatives
andnot
in
hisindividualcapacity,
GARRET
IIASHIMOTO,
WILLIAM
E.K.
KUMIA
and
DAVID
LANGDON
 collectively
the
“Plaintiffs” ,
by
and
throughtheir
attorneys,
the
lawfirms
of
Robert
K.
Matsumoto
andDwyer
Schraff
Meyer
 
Green,and
hereby
submit
their
ReplyMemorandum
In
Support
of
TheirMotion
for
TemporaryRestraining
Order.I.
INTRODUCTION.
Atthe
outset
of
this
ReplyMemorandum
itis
important
to
recognizethat
Defendants
apparentlybelieve
the
Plaintiffs
have
filedthisaction
to
prevent
theHawaiiStateLegislaturefrom
considering
a
legislative
bill.
Even
a
cursoryreview
of
the
First
AmendedComplaintwould
show
that
such
a
belief
is
categorically
wrong;
although
such
a
goal
would
have
been
proper.
5cc,
Muneer
Awad
 
Paul
Ziriax
 Agency
Head,Oklahoma
State
Board
of
Elections),670F.3d
1111
 
Cir.
2012).
Giventhearguments
of
theDefendants
it
is
also
appropriate
to
note
that
the
Hawaii
Legislature
has
formallymade
findings
that
the
people
of
Hawaii
have
chosen
to
Preserve
the
tradition
of
marriage
asa
unique
social
institution
basedupon
the
committed
union
of
one
man
to
onewoman.
Jackson
 
Abercrombie,
884
F.Supp.2d
1065,1080
 D.Hawaii2012)The
Jackson
court
went
on
to
determine
that
in
light
of
the
ConstitutionalAmendment
in
1998
 Article
I,
Section
23),
that
Section
572-1,Hawaii
Revised
Statutes
as
amended
 “HRS”),mustbe
given
full
forceandeffect.Id.,
at1080.
 
 
In
any
event,
we
are
notinvolvedwith
a
civilrightsissuehere,
because
everyHawaii
citizen
has
an
equal
right
to
marry;butsimply
put,
a
citizen
cannot
marry
someone
of
the
same-sex
anymore
thanthat
citizen
can
marry
morethanone
person
of
theopposite-sex.
To
be
clear
the
Plaintiffs
recognize
thatcertainactivistshavearguedthat
same sex
coupleshave
the
identical
“love
and
conimitment”
to
eachother
as
heterosexual
couples,andthusshould
therefore
be
treated
equally
andreceiveequalbenefits.
Thatargument
is
fatally
flawed.Thefact
is
that
society
has
providedcertain
economic
benefits
status,andother
incentives
to
heterosexual
marriages
becauseheterosexual
marriageshave
encouraged
the
stability
of
and
haveprovided
benefits
to
our
society
for
the
purpose
of
birthing
and
the
support
and
the
raising
of
children,whowill
become
the
nextgeneration
of
citizens
NOT
because
thatheterosexual
couplemaintains
a
“love
and
commitment”
to
eachother.That
is
tosay,
even
though
“loveand
commitment”
are
fundamental
to
a
strong
heterosexual
marriage “love
and
commitment”
have
NOT
been
the
basissocietyhas
provided
incentives
and
a
specialstatus,
asa
matter
of
public
policy
to
traditional
heterosexual
marriages.
Rather
the
basis
for
thoseincentives
andstatus
is
the
long
recognizedirreplaceable
contributions
thatheterosexualmarriages
have
made
to
oursociety,
social
order,and
personalhealth
and
welfare.
Society
has
recognizedthat
only
a
heterosexualmarriage
can
provide
the
means
and
resources
to
birth
and
raisechildren
to
becomeresponsible
citizens.Finally,
in
determining
the
applicability
of
a
TemporaryRestraining
Order,Hawaii
courts
apply
a
“sliding
scale”
analysis.
If
the
balanceharm
or
hardships
that
will
be
suffered
by
the
Plaintiffs
tip
decidedly
to
the
Plaintiffs
thePlaintiffs
are
notrequired
to
show
as
robust
a
likelihood
of
success
on
the
merits
as
Plaintiffswouldotherwise
be
required
toshow.
Arakaki
 
Cayetano
198
F.Supp.2d
1165
 D.Hawaii
2002 ;
Jou
 
Chang
350
F.Supp.2d
 D.Hawaii
2004 .
As
will
be
explainedbelow the
issuance
of
a
single
marriage
license
to
a
same sex
couplewill
2

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