i like to reserve one minute of my time for rebuttal if i may there are two issues for this court to decide now that hawaii has an active a new law that provides same sex couples with equal access to marriage whether this their statute has changed same sex couples are now allowed to marry in hawaii and in fact the plaintiff couples in this case of marry your original parties to this case all agree that they have no current dispute pending lawsuits challenging hawaii's new marriage equality law both of which were dismissed at the trial court level are finally resolved by the reviewing courts of last resort a process that could take many months if not years respectfully the state argument ignores the settled law in this circuit and others which apply a near categorical rule of moving this when a statutory change and they didn't look at the marriage or are they they and they said that the plaintiffs we see are they achieved what they wanted or what they saw through their litigation and that mood of the case and that  well it's not under the under  case as you know the primary issues in this case in its current posture are missing backorder and we are asking the court to simply follow its ordinary procedure on these issues we respectfully submit that this case should be dismissed as mood because the challenge statutory language was adopt a categorical rule that challenges the pending legal challenges do not defeat for that matter it's leaving tonight the feet movements but if the court is uncomfortable with applying miller and citizens to the circu then there is the other option of applying the standard that applies to legislative arena and there is law in the circuit on that if the court wants to apply that by analogy to the pending litigation situation court can and the standard would and in the ninth circuit that is supposed to be generally automatic i like to point to some of the cases of this court log cabin republicans  whether it's discretionary or not ordinarily when there's no voluntary action then it's not discretionary ordinarily this court will direct that are and this court will not even we man the case to the district court to decide issue this court will just grab back later and i'd ask the court to do that because there's no voluntary action here it's our position that governor abercrombie did not engage in voluntary action here is our position based on a chemical producers case that it was the legislature that acted to enact act one governor abercrombie's role was not sufficient to constitute voluntary action there and the chemical producers case is very clear it does say that the legislature would just like to reemphasize that the purpose of backorder is to clear the path for future litigation the purpose is to prevent a to a district court decision spawning any legal consequences so that no parties harm then i would argue ordinary procedure follow ninth circuit law follow miller and citizens from the tenth circuit and the seventh circuit if the course so inclined but in any event the law either in the ninth circuit or from other circuits is clear and this in cases of statutory and then the repeal the question this court answers is whether to exercise jurisdiction not whether it exists and in making this determination cases like or obstruction  what we're here to say this case is not move because if if this court prematurely dismisses the appeal now then act one is struck down by the why supreme court then then other people who have a problem at that point can bring a lawsuit but the people in this those those marriages in fact one is struck down by the y supreme court it's going to be an issue of state laws to determine whether those marriages stayed out so that's why this case is not yet moot that's why this court you  sit on in this case though we're saying these unique facts so in other words we're statutory event that ordinarily would have the potential to move a case has from before its inception been subject to a state constitutional challenge of this court she hold the hawaii prevents the legislature under its normal customary powers from from legislating same sex marriage that there is another constitutional and necessary so that the the defendants have moved  leapfrog the intermediate court of appeals after the novel or complex issue of state wall so this is a serious legitimate challenge to act one which threatens to completely restore the status quo ante and if that's the case this courtship continued to exercise jurisdiction court might find it but the point is that holding that the appeal here does nothing we're coming up on three years in this case if we dismiss it now and act one is struck down next week everyone is hurt if you hold the appeal no one is hurt there is one other issue i'd like to raise i see my time running out your hours with pending motion to dismiss the governor's appeal our argument here is simple them the motions panels reserve that issue for the for this trial the governor was a several months if not years there is no precedent in the circuit for simply holding a case like this indefinitely and that's essentially what the other side is asking to do  back the same plan well but the circumstances could well be different depending on what the white supreme court does and whether in fact in any marriages that have taken place have been invalidated so we if this case right and that the old marriage resume regime is restored we should be able to go back into district court and fight the constitution and constitutionality of the old marriage law assuming this court hasn't argue or governor with a different view in the future from the present cover governor may argue that the district court's decision isn't judy haitian on the merits it's between the same parties and that that would preclude us