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IN THE SUPREME COURT OF THE STATE OF HAWAI#I

---o0o—

 

REPRESENTATIVE BOB McDERMOTT, GARRET HASHIMOTO, 

WILLIAM E.K. KUMIA, and DAVID LANGDON, 

Plaintiffs-Appellants,

vs.

GOVERNOR DAVID IGE and VIRGINIA PRESSLER, 

DIRECTOR, DEPARTMENT OF HEALTH, STATE OF HAWAI#I, 

Defendants-Appellees.

 

SCAP-14-0000843

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT

(CAAP-14-0000843; CIV. NO. 13-1-2899)

MAY 27, 2015

RECKTENWALD, C.J., NAKAYAMA, POLLACK, AND WILSON, JJ., AND

CIRCUIT JUDGE CASTAGNETTI, IN PLACE OF McKENNA, J., RECUSED

OPINION OF THE COURT BY RECKTENWALD, C.J.

This case requires us to determine whether Appellants 

have standing to challenge the Hawai#i Marriage Equality Act of

2013. The 2013 Act changed Hawaii’s definition of marriage so

Electronically Filed

Supreme Court

SCAP-14-0000843

27-MAY-2015

08:32 AM
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that same-sex couples could marry. Appellants--State

Representative Bob McDermott, Garret Hashimoto, William E.K.

Kumia, and David Langdon--filed suit in the Circuit Court of the

First Circuit to invalidate the 2013 Act. The circuit court 1

upheld the Act’s validity. 

On appeal, Appellants claim that the 2013 Act is

unconstitutional under article I, section 23 of the Hawai#i

Constitution (also referred to as the “1998 marriage amendment”),

which provides: “The legislature shall have the power to reserve

marriage to opposite-sex couples.” Haw. Const. art. I, § 23. 

Specifically, Appellants argue that the 1998 marriage amendment

was adopted by the voters to constitutionally require the

legislature to reserve marriage to opposite-sex couples. 

Before we consider the merits of Appellants’ claims, we

must first determine whether they have standing to bring this

lawsuit. Legal standing requirements promote the separation of

powers between the three branches of government by limiting the

availability of judicial review to cases involving an “injury in

fact.” Sierra Club v. Dep’t of Transp., 115 Hawai#i 299, 319,

321, 167 P.3d 292, 312, 314 (2007); Sierra Club v. Hawai#i

Tourism Auth. Ex rel. Bd. of Dirs., 100 Hawai#i 242, 250-51, 59

P.3d 877, 885-86 (2002) (plurality opinion). To have standing, a

The Honorable Karl K. Sakamoto presided. 1

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plaintiff must show that he or she has suffered an actual or

threatened injury that is fairly traceable to the defendant’s

actions, and that a favorable decision would likely provide

relief for that injury. See, e.g., Sierra Club v. Dep’t of

Transp., 115 Hawai#i at 314, 167 P.3d at 321. 

We hold that Appellants have failed to establish

standing to bring this lawsuit. The legislature’s decision to

extend the right to marry to same-sex couples does not, in any

way, diminish the right to marry that Appellants remain free to

exercise. Although it appears Appellants have deeply-held

objections to same-sex marriage, such moral or ideological

disapproval does not constitute a legally cognizable injury

sufficient to establish standing. 

Because Appellants do not have standing to challenge

the constitutionality of the Marriage Equality Act, we vacate the

circuit court’s order granting summary judgment and remand the

case to the circuit court with instructions to dismiss the case

for lack of jurisdiction.

I. Background

A. Background to article I, section 23 of the Hawai#i

Constitution and the Marriage Equality Act

In 1991, three same-sex couples filed a lawsuit in the 

circuit court against John C. Lewin, then-Director of the Hawai#i

Department of Health (DOH), challenging the DOH’s practice of

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restricting marriage licenses to opposite-sex couples. Baehr v.

Lewin, 74 Haw. 530, 535-37, 852 P.2d 44, 48-49 (1993) (Baehr I). 

The plaintiffs in Baehr I alleged that Hawai#i Revised Statutes

(HRS) § 572-1 was unconstitutional as construed by the DOH. Id. 2

On appeal, this court held that both on its face and as applied

by the DOH, HRS § 572-1 established a sex-based classification,

which would violate the equal protection clause of the Hawai#i

Constitution unless the strict scrutiny test was met, and

remanded the case to the circuit court to determine whether the

State could meet its burden of showing that the statute “furthers

compelling state interests and is narrowly drawn to avoid

unnecessary abridgments of constitutional rights.” Id. at 580,

582, 852 P.2d at 67, 68.

At the time this court decided Baehr I, HRS § 572-1 provided, in 2

relevant part:

In order to make valid the marriage contract, it shall

be necessary that:

. . .

(3) The man does not at the time have any lawful

wife living and that the woman does not at the

time have any lawful husband living;

. . .

(7) The marriage ceremony be performed in the

State by a person or society with a valid

license to solemnize marriages and the man and

woman to be married and the person performing

the marriage ceremony be all physically present

at the same place and time for the marriage

ceremony.

HRS § 572-1 (1985) (emphases added).

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In 1994, while the remanded Baehr case was again before

the circuit court, the legislature amended Hawaii’s definition of

marriage in HRS § 572-1 to specify that Hawaii’s marriage

licensing laws only allowed marriage between opposite-sex

couples. 1994 Haw. Sess. Laws Act 217 at 526. The amended HRS

§ 572-1 stated that the marriage contract “shall be only between

a man and a woman . . . .” HRS § 572-1 (2006). 

Meanwhile, on remand, the circuit court held that the

State’s traditional definition of marriage did not meet strict

scrutiny, and the State appealed. Baehr v. Miike, No. 91-1394,

1996 WL 694235, at *21-22 (Dec. 3, 1996).

In 1997, while the appeal was pending, the legislature

proposed an amendment to the Hawai#i Constitution. See 1997 Haw.

Sess. Laws HB 117 at 1246-47. Representative McDermott voted in

support of the amendment when it came before the House. The

proposed amendment was submitted to the general public as a

ballot question in the November 3, 1998 general election. The

question on the ballot asked: “Shall the Constitution of the

State of Hawaii be amended to specify that the legislature shall

have the power to reserve marriage to opposite-sex couples?” 

Before the election, the State of Hawai#i Office of

Elections released a fact sheet, which included explanations of

the consequences of a “yes” vote and a “no” vote. The fact sheet

stated that “[t]he proposed amendment is intended to make it

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absolutely clear that the State Constitution gives the

Legislature the power and authority to reserve marriage to

opposite-sex couples.” The fact sheet went on to explain that a

“yes” vote would “add a new provision to the Constitution that

would give the Legislature the power to reserve marriage to

opposite-sex couples only. The legislature could then pass a law

that would limit marriage to a man and a woman, overruling the

recent Supreme Court decision regarding same-sex couples.” The

fact sheet also explained that a “no” vote “will make no change

to the Constitution of the State of Hawai#i, and allow the court

to resolve the lawsuit that has been brought against the State.” 

Over two-thirds of the voters voted in favor of the

amendment, and article I, section 23 of the constitution was

added to read: “The legislature shall have the power to reserve

marriage to opposite-sex couples.” Haw. Const. art. I, § 23. 

After the 1998 marriage amendment was ratified, the legislature

did not re-enact legislation defining marriage as between a man

and a woman, presumably because the then-existing version of HRS

§ 572-1 already limited marriage to opposite-sex couples. See

HRS § 572-1 (1993) (amended 1994, 1997, 2012, 2013).3

The 1997 and 2012 amendments to HRS § 572-1 are not relevant to 3

the present appeal. In 1997, the legislature amended the statute by replacing

the phrase “legitimate or illegitimate” with “the result of the issue of

parents married or not married to each other.” 1997 Haw. Sess. Laws Act 52,

§ 5 at 97. In 2012, the legislature added language to HRS § 572-1 to ensure

consistency with Hawaii’s 2011 law recognizing civil unions. 2012 Haw. Sess.

Laws Act 267, § 4 at 945-46. 

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On December 9, 1999, this court issued a summary

disposition order stating that the 1998 marriage amendment had

“tak[en] the [marriage] statute out of the ambit of the equal

protection clause of the Hawai#i Constitution,” and therefore

“HRS § 572-1 must be given full force and effect.” Baehr v.

Miike, No. 20371, 1999 WL 35643448, at *1 (Haw. Dec. 9, 1999)

(SDO) (Baehr II).

The 1994 statutory definition of marriage in HRS § 572-

1 remained unchanged in pertinent part until November 2013. On

October 28, 2013, the legislature began a special session to

consider Senate Bill 1 (SB 1). SB 1 was signed into law on

November 13, 2013, as the Hawai#i Marriage Equality Act of 2013. 

The Marriage Equality Act changed the definition of marriage so

that “the marriage contract . . . shall be permitted between two

individuals without regard to gender,” thereby permitting samesex marriage. HRS § 572-1 (Supp. 2014). 

B. Prior Proceedings in the Present Case

On October 30, 2013, while the legislature was

considering SB 1, Representative McDermott filed a complaint in

the circuit court. On November 1, 2013, a first amended

complaint joined as plaintiffs Hashimoto, Kumia, and Langdon. 

Appellants originally named as defendants the Governor and four

legislators. After the Marriage Equality Act was signed into

law, the legislators were removed as parties and the Director of

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the DOH was added, and the case proceeded against the Governor

and the Director of the DOH (Appellees). 

On November 4, 2013, Appellants moved for a Temporary

Restraining Order (TRO) to enjoin the State from issuing any

marriage licenses to same-sex couples. Appellants first argued

that they were likely to succeed on the merits. Appellants

acknowledged that based on the 1998 marriage amendment, the

legislature only possessed the authority to limit marriage to

opposite-sex couples by statute if it chose to do so, but argued

that at the time the public voted, the legislature had already

chosen to do so in HRS § 572-1. According to Appellants, this

indicates that the intent of the voters in 1998 was to validate

the existing statute, and reserve marriage to opposite-sex

couples only. Thus, according to Appellants, before amending the

statute to allow same-sex marriage, the legislature would have to

again ask the public to amend the constitution. 

Appellants next argued that, based on experiences in

other states, they would suffer irreparable injury if SB 1 became

law: 

Once same-sex marriages were approved in

Massachusetts, parents there were faced with rulings

that the schools had a duty to portray homosexual

relationships as normal, and the complaints of parents

were ignored. Further, businesses in Massachusetts

were faced with equally serious situations involving,

for example, disruptions and expenses caused by

“testing for tolerance” by homosexual activists.

Finally, Appellants argued that the public interest

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favored granting the injunction because: 

[t]he public has a strong vested interest in knowing

that the very basis of Hawaii’s cultural norms, the

family, which consists of a mother, father and

children (and perhaps includes several generations),

will be forever changed. To see the depth of that

vested interest, one needs to go no further than to

consider the thousands and thousands of citizens that

met and rallied at the Capitol Building on October 28,

2013 to oppose any change to Section 572-1 that would

validate same-sex marriages. These citizens were from

every walk of life. They were Hawaiians, Polynesians,

Asians, African Americans and Caucasians. They were

young and old, and all they wanted was to tell the

legislators: “Let the people vote.” There is a

cultural norm involved, and a change in that historic

cultural norm should not be changed and mandated by a

law that is opposed by the vast majority of Hawaii’s

citizens. The adverse societal impacts and the great

public interest should be obvious to the Court.

On November 5, 2013, Appellees responded by arguing

that the court lacked the authority to grant Appellants’ motion

because enjoining the legislature from enacting a bill or the

governor from signing it would violate the separation of powers

doctrine and the political question doctrine, and that

Appellants’ action against a bill rather than a law was not ripe. 

Appellees also argued that Appellants lacked standing. 

According to Appellees, Representative McDermott lacked standing

as a legislator suing in his official capacity because an

individual legislator does not have standing based solely on his

or her status as a legislator, and is required to show a personal

stake and a concrete injury to establish standing. Appellees

argued that the only exception to this rule--where legislators

whose votes would have been sufficient to pass or defeat a

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specific bill sue because their votes were “nullified”--does not

apply here because Representative McDermott has not shown that

there were enough votes to defeat the bill or that his vote had

been nullified. Appellees also argued that Hashimoto, Kumia, and

Langdon (the “Individual Plaintiffs”) lacked standing because

they were attempting to assert a “value preference” which was

insufficient to show a concrete injury-in-fact. 

Appellees also argued that even if the case was

properly before the court, Appellants could not show a likelihood

of success on the merits. Appellees argued that the language of

article I, section 23 clearly and unambiguously permits, but does

not require, the legislature to limit marriage to opposite-sex

couples. Thus, according to Appellees, article I, section 23 did

not limit the legislature’s authority to enact the Marriage

Equality Act. 

Appellees also contended that even if the language of

article I, section 23 is ambiguous, the legislative history and

the factual circumstances surrounding the 1998 marriage amendment

supported Appellees’ interpretation of the provision. 

Specifically, Appellees argued that a reasonable voter would have

understood that the 1998 marriage amendment did not require the

legislature to limit marriage to opposite-sex couples, but merely

gave the legislature the authority to act if it chose to do so. 

In response to Appellees’ claim that Appellants lacked

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standing, Appellants argued that because they were bringing a

declaratory action in a matter of great public importance, the

traditional standing requirements were not applicable. 

Appellants also argued that Representative McDermott had standing

as a legislator because prior to the 1998 marriage amendment, he

had represented publicly that “a ‘Yes’ vote would allow the

Constitution to be amended, so that the prior law . . . (that

reserved marriage to heterosexual couples only) would be

Constitutionally established and would be valid.” Therefore,

according to Appellants, absent an injunction, Representative

McDermott would “suffer irreparable damages to his reputation and

to his electability as a legislator, which is his livelihood,

because his actions and speeches prior to the 1998 vote will have

been and will be deemed by the electorate to be misleading and

untruthful.” 

On November 7, 2013, the circuit court denied

Appellants’ motion on the grounds that enjoining the signing of

the bill would be a violation of the separation of powers

doctrine, was a political question, and was not ripe, but also

stated that it would hear further arguments on the impact of SB 1

if the Governor signed the bill into law. 

In a supplemental memorandum, Appellants argued that

Appellees should be estopped from arguing that article I, section

23 merely gave the legislature the power to limit marriage to

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opposite-sex couples if it chose to do so because according to

Appellants, Appellees’ interpretation is contrary to the

information the State had given in its Ballot Information Flyer

before the general election vote on the 1998 marriage amendment. 

The Ballot Information Flyer stated, in relevant parts:

The proposed amendment is intended to make it

absolutely clear that the State Constitution gives the

Legislature the power and authority to reserve

marriage to opposite-sex couples.

. . . .

A “Yes” vote would add a new provision to the

Constitution that would give the legislature the power

to reserve marriage to opposite-sex couples only. The

legislature could then pass a law that would limit

marriage to a man and a woman, overruling the recent

Supreme Court decision regarding same-sex couples.

. . . .

A “No” vote will make no change to the Constitution of

the State of Hawai#i and allow the court resolve the

lawsuit that has been brought against the State.

On November 14, 2013, the day after the Marriage

Equality Act was signed into law, the circuit court held another 

hearing on Appellants’ motion for a TRO and preliminary

injunction.4

Appellants clarified that their argument was not that

article I, section 23 required the legislature to define marriage

as between opposite-sex couples, but that once the legislature

exercised its power conferred by article I, section 23, the

Although Appellants’ motion was entitled a motion for TRO, the 4

circuit court held a hearing on “Plaintiffs’ Motion for Temporary Restraining

Order & Preliminary Injunction.” 

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legislature no longer had other powers to define marriage without

amending the constitution. 

Appellees argued that regardless of article I, section

23, the legislature has the power under article 3, section 1 to 5

enact the Marriage Equality Act. 

The circuit court found that Appellants had standing,

and concluded verbally as follows:

The court believes that the plaintiffs, both as

citizens and voters in matters of great public

importance, have a personal stake in the outcome of

this controversy and thereby have standing arising

from what the court believed was an attempt to expand

Article I, section 23 to include same sex marriage. 

The circuit court then went on to conclude that article

I, section 23 empowered the legislature to limit marriage to

opposite-sex couples, but that the legislature could choose not

to exercise that power, and that, separate from article I,

section 23, the legislature had the power to define marriage

pursuant to article III, section 1. Thus, the circuit court

concluded that the Marriage Equality Act did not violate article

I, section 23, and that “same sex marriage in Hawai#i is legal.” 

On December 20, 2013, the circuit court entered an

order granting in part and denying in part Appellants’ motion for

Article 3, section 1 of the Hawai#i Constitution provides that 5

“[t]he legislative power of the State shall be vested in a legislature, which

shall consist of two houses, a senate and a house of representatives. Such

power shall extend to all rightful subjects of legislation not inconsistent

with this constitution or the Constitution of the United States.”

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a TRO and preliminary injunction.6

On December 23, 2013, Appellees filed a motion for

summary judgment (MSJ). Appellees again argued that

Representative McDermott lacked standing in his official capacity

as a legislator, and the Individual Plaintiffs all lacked

standing because they had suffered no injury-in-fact as a result

of the passage of the law. 

In response, Appellants argued that Representative

McDermott has standing in his official capacity as a legislator,

and that summary judgment should be denied because “[a]s a

minimum, there is a serious issue of material fact whether the

individual Plaintiffs’ constitutional due process voting rights

have been abridged by the State’s ‘bait and switch’ tactic.” 

This “bait and switch” referred to Appellants’ argument that the

State’s interpretation of the 1998 marriage amendment in the

present case is contrary to the position it presented in the

Ballot Information Flyer for the 1998 ballot question. 

Appellants argued that the “bait and switch” should estop

Appellees from asserting their arguments and that it conferred

Appellants’ motion was 6

GRANTED to the extent of Plaintiffs’ declaratory

relief, as Article I, Section 23 empowers the

legislature to reserve marriage to opposite-sex

couples, but does not give the legislature the power

to constitutionally recognize marriage to same-sex

couples under Article I, Section 23; and DENIED to the

extent Plaintiffs sought injunctive relief. 

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standing on the Individual Plaintiffs. Appellants also argued

that they have standing as private citizens because the lawsuit

they brought was a matter of great public importance. 

On January 29, 2014, the circuit court ruled that the

Marriage Equality Act was constitutional, and on April 21, 2014,

entered an order granting Appellees’ MSJ. The circuit court

concluded that the language of article I, section 23 is clear and

unambiguous, and gives the legislature the power to reserve

marriage to opposite-sex couples, but does not demand it. The

circuit court also concluded that the legislative history and

factual circumstances surrounding the 1998 marriage amendment

supported its interpretation of the amendment’s plain language. 

On May 21, 2014, Appellants appealed, and on July 16,

2014, this court granted Appellees’ transfer application. On

appeal, Appellants challenge the circuit court’s denial of

Appellants’ motion for a TRO and preliminary injunction, and

granting of Appellees’ MSJ. 

II. Standard of Review

Whether the plaintiff had standing to bring his or her

claim presents a question of law, reviewable de novo. Haw. Med.

Ass’n v. Haw. Med. Serv. Ass’n, Inc., 113 Hawai#i 77, 90, 148

P.3d 1179, 1192 (2006); see also Keahole Def. Coal., Inc. v. Bd.

of Land & Natural Res., 110 Hawai#i 419, 427-28, 134 P.3d 585,

593-94 (2006). Further, standing must be addressed before we

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reach the merits, and “may be addressed at any stage of a case.” 

Keahole Def. Coal., Inc., 110 Hawai#i at 427, 134 P.3d at 593.

III. Discussion

A. Legal Standing is a Requirement that Cannot be Waived

At every stage of the proceedings before the circuit

court, Appellees argued that Appellants lacked standing. The

circuit court concluded that Appellants did have standing upon

finding that this case presents a matter of great public

importance and that by passing the Marriage Equality Act of 2013,

the legislature was attempting to expand the scope of article I,

section 23. Appellees have not cross-appealed the circuit

court’s finding that Appellants had standing, because Appellees

prevailed on the merits and, according to Appellees, “‘only a

party aggrieved by a judgment can appeal from it.’” (Citing In

re Campbell’s Estate, 46 Haw. 475, 498, 382 P.2d 920, 941

(1963)).

Appellants argue that because Appellees did not crossappeal the circuit court’s ruling on standing, Appellees have

waived any argument on this issue. However, this court has the

independent obligation to address whether Appellants have

standing to bring these claims. See Keahole Def. Coal., Inc.,

110 Hawai#i at 427, 134 P.3d at 593 (“The issue of standing

implicates this court’s jurisdiction, and, therefore, must be

addressed first.”). If this court concludes that Appellants

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lacked standing, this court must dismiss the appeal without

reaching the merits of the case. See, e.g., Sierra Club v.

Hawai#i Tourism Auth. ex rel. Bd. of Dirs., 100 Hawai#i 242, 265 &

n.35, 59 P.3d 877, 900 & n.35 (2002) (plurality opinion) (holding

that “[i]n light of the fact that we have decided that Petitioner

lacks standing, we do not reach the merits of the case” and that

“having held that Petitioner lacks standing to bring its suit, we

dismiss Petitioner’s . . . Petition”). 

Indeed, we must address standing as a threshold matter,

even if it is not raised by the parties. See Akinaka v.

Disciplinary Bd. of Hawai#i Supreme Court, 91 Hawai#i 51, 55, 979

P.2d 1077, 1081 (1999) (“Although neither the parties nor the

trial court considered the question of standing, this court has a

duty, sua sponte, to determine whether [the plaintiff] had

standing to prosecute his complaint against appellees.”).

The requirements that a party must have legal standing

to litigate a claim, and that a lack of standing is a defect that

must be addressed by the court at any point in the case, serve

several purposes that are fundamental in ensuring the effective

role of the courts in our society. Legal standing requirements

promote the separation of powers between the three branches of

government by limiting the availability of judicial review to

cases in which there is an actual dispute between adverse

parties, which “focuses attention directly on the question of

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what is the proper place of the judiciary in the American system

of government.” Erwin Chemerinsky, Federal Jurisdiction 57-58

(4th ed. 2003). 

This is particularly important where, as in this case,

one party claims that action taken by another branch of

government was unconstitutional. Raines v. Byrd, 521 U.S. 811,

819-20 (1997). For example, this court noted in Life of the Land

v. Land Use Comm’n of State of Haw., that “even in the absence of

constitutional restrictions [on justiciability], courts still [7]

carefully weigh the wisdom, efficacy, and timeliness of an

exercise of their power before acting, especially where there may

be an intrusion into areas committed to other branches of

government.” 63 Haw. 166, 172, 623 P.2d 431, 438 (1981). In

Trustees of Office of Hawaiian Affairs v. Yamasaki, this court

further explained that we must be wary of the “inappropriateness

of judicial intrusion into matters which concern the political

branch of government,” and that “too often, courts in their zeal

to safeguard their prerogatives overlook the pitfalls of their

Unlike the federal courts, the courts of Hawai#i are not subject 7

to the “cases or controversies” limitation imposed by Article III, Section 2

of the U.S. Constitution. Nevertheless, because the Hawai#i government, like

the federal government, is “divided and allocated among three co-equal

branches,” Trustees of Office of Hawaiian Affairs v. Yamasaki 69 Haw. 154,

170-71, 737 P.2d 446, 456 (1987), this court has established a set of

“‘prudential rules’ of judicial self governance” to properly limit the role of

the courts in our society, and has looked to decisions of the U.S. Supreme

Court for guidance on these rules, Life of the Land, 63 Haw. at 171-73, 623

P.2d at 438-39; see also Reliable Collection Agency, Ltd. v. Cole, 59 Haw.

503, 510-11, 584 P.2d 107, 111 (1978).

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own trespass on legislative functions.” 69 Haw. 154, 172, 737

P.2d 446, 456-57 (1987) (citations, quotation marks, and brackets

omitted). Thus, a judicial determination of the

constitutionality of a statute without an actual dispute between

genuinely adverse parties could constitute an unwarranted

encroachment into the authority of the legislative branch of

government.

In addition, legal standing requirements improve

judicial decision-making by ensuring that the parties before the

court have a sufficient personal stake in the outcome to

effectively and zealously argue the merits. See Baker v. Carr,

369 U.S. 186, 204 (1962) (stating that the “gist of the question

of standing” is whether “the appellants [have] alleged such a

personal stake in the outcome of the controversy as to assure

that concrete adverseness which sharpens the presentation of

issues upon which the court so largely depends for illumination

of difficult constitutional questions”).

We note that, although standing requirements are

important to serve the policies described above, this court has

also indicated that the standing doctrine should not create a

barrier to justice where one’s legitimate interests have, in

fact, been injured. See East Diamond Head Ass’n v. Zoning Bd. of

Appeals of City & Cnty. of Honolulu, 52 Haw. 518, 523 n.5, 479

P.2d 796, 799 n.5 (1971) (quoting Kenneth Davis, The Liberalized

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Law of Standing, 37 U. Chi. L. Rev. 450, 473 (1970)) 

(“Complexities about standing are barriers to justice; in

removing the barriers the emphasis should be on the needs of

justice. One whose legitimate interest is in fact injured by

illegal action of an agency or officer should have standing

because justice requires that such a party should have a chance

to show that the action that hurts his interest is illegal.”).

However, the application of our standing doctrine in

this case does not create a barrier to justice. Appellants have

not been deprived of any right and have not, as discussed below,

pointed to any legally-recognized interest that has been injured. 

Indeed, Appellants are seeking standing to challenge the

legislature’s extension of the right to marriage to people who,

previously, could not exercise that right. Therefore, this is

not a case in which justice requires us to relax our standing

requirements. 

Accordingly, this court must, and will, address the

issue of Appellants’ standing before considering the merits of

Appellants’ constitutional argument.

B. Appellants Lack Standing to Challenge the Constitutionality

of the Marriage Equality Act 

The critical inquiry in determining standing is

“‘whether the plaintiff has ‘alleged such a personal stake in the

outcome of the controversy’ as to warrant his [or her] invocation

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of . . . [the court’s] jurisdiction and to justify exercise of

the court’s remedial powers on his [or her] behalf.’” Life of

the Land, 63 Haw. at 172, 623 P.2d at 438 (quoting Warth v.

Seldin, 422 U.S. 490, 498-99 (1975)). Generally, whether a

plaintiff has the requisite “personal stake” is evaluated using

the three-part injury-in-fact test. Sierra Club v. Hawai#i

Tourism Auth., 100 Hawai#i at 250-51, 59 P.3d at 885-86. Under

this test, a plaintiff must allege that: (1) he or she has

suffered an actual or threatened injury as a result of the

defendant’s wrongful conduct; (2) the injury is fairly traceable

to the defendant’s actions; and (3) a favorable decision would

likely provide relief for the plaintiff’s injury. Id.

Once the standing of one plaintiff is established, the

court can proceed to a decision on the merits of the case and

need not determine whether the other Appellants also have

standing. See Planned Parenthood of Idaho, Inc. v. Wasden, 376

F.3d 908, 918 (9th Cir. 2004) (“Where the legal issues on appeal

are fairly raised by one plaintiff who had standing to bring the

suit, the court need not consider the standing of the other

plaintiffs.”) (internal brackets and quotation marks omitted).

Thus, we look to see if any of the Appellants have

established standing. We will first address the Appellants’

argument that they have standing based on the fact that this is a

matter of great public importance, and will then examine whether

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the Appellants have otherwise satisfied the requirements of the

injury-in-fact test.

1. Appellants Cannot Establish Standing Solely on the

Grounds That This is a Matter of Great Public

Importance

Appellants argued before the circuit court that

standing requirements should be relaxed or completely eliminated

in this case because it is a matter of great public importance. 

Specifically, Appellants argued that:

The complexities of standing and ripeness standards

are considered to be barriers to justice, and when a

court considers removing those barriers, the emphasis

is placed on the needs of justice. More specifically,

those justiciability standards are simply not

applicable in declaratory judgment actions involving

matters of great importance. Thus, those standards

are not applicable and are not barriers in this case.

(Internal citations omitted).

The circuit court generally agreed with Appellants and

concluded that:

The court believes that the Plaintiffs, both as

citizens and voters in matters of great public

importance, have a personal stake in the outcome of

this controversy and thereby have standing arising

from what the court believed was an attempt to expand

Article I, section 23 to include same sex marriage. 

(Emphasis added).

Before this court, Appellants do not elaborate further

on their argument that they have standing because this is a

matter of great public importance. However, because this was at

least a partial basis for the circuit court’s conclusion, we

address it as a possible basis for Appellants’ standing.

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This court has never based standing solely on the

grounds that a matter was of great public importance. Instead,

in two narrow types of cases--those involving native Hawaiian

rights and environmental concerns--this court has expanded the

requisite “injury” to include harms to aesthetic and

environmental well-being and where a plaintiff’s harm is shared

by a large portion of the population generally. Critically

though, this court has always required the plaintiff to show some

injury-in-fact.

This court’s expansion of standing in certain cases can

be traced back to East Diamond Head Ass’n, 52 Haw. at 518, 479

P.2d at 796. In East Diamond Head Ass’n, this court held that

the plaintiffs, landowners of a lot adjacent to which a variance

for industrial use had been granted in a residentially-zoned

area, had standing as “aggrieved persons” under HRS § 91-14(a)8

to challenge the variance. Id. at 522, 479 P.2d at 798. In so

holding, this court stated that:

In this case we subscribe to Professor Davis’ common

sense position on standing requirements:

“Complexities about standing are barriers to justice;

in removing the barriers the emphasis should be on the

needs of justice. One whose legitimate interest is in

fact injured by illegal action of an agency or officer

should have standing because justice requires that

such a party should have a chance to show that the

HRS § 91-14(a) (Supp. 2014) provides, in relevant part: “Any

8

person aggrieved by a final decision and order in a contested case or by a

preliminary ruling of the nature that deferral of review pending entry of a

subsequent final decision would deprive appellant of adequate relief is

entitled to judicial review thereof under this chapter . . . .” 

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action that hurts his interest is illegal.”

Id. at 523 n.5, 479 P.2d at 799 n.5 (quoting Kenneth Davis, The

Liberalized Law of Standing, 37 U. Chi. L. Rev. 450, 473 (1970))

(emphasis added).

Even at the genesis of this expansion of standing, it

was thus clear from the language quoted by this court that we

would still require the plaintiff to show an injury-in-fact to a

legitimate interest to establish standing, while also not

allowing procedural standing complexities to create a barrier to

justice.

Since East Diamond Head Ass’n, this court has expanded

what constitutes an injury-in-fact to include not just economic

harms, but also harm to “aesthetic and environmental well being”

and cases where the plaintiff’s injury “is not different in kind

from the public’s generally, if he or she can show that he or she

has suffered an injury-in-fact.” Sierra Club v. Hawai#i Tourism

Auth. ex rel. Bd. of Dirs., 100 Hawai#i 242, 251, 59 P.3d 877,

886 (2002) (internal brackets omitted); see also Sierra Club v.

Dep’t of Transp., 115 Hawai#i 299, 313, 167 P.3d 292, 320 (2007)

(“environmental plaintiffs must meet the three-part standing test

. . . although there will be no requirement that their asserted

injury be particular to the plaintiffs, and the court will

recognize harms to plaintiffs [sic] environmental interests as

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injuries that may provide the basis for standing”). This 9

court’s expansion of standing in such cases is based, at least in

part, on article XI, section 9 of the Hawai#i Constitution, which

creates a right in “each person” to a “clean and healthful

environment.” Sierra Club v. Dep’t of Transp., 115 Hawai#i at 10

320, 167 P.3d at 313 (“The less rigorous standing requirement

this court applies in environmental cases draws support from the

Hawai#i Constitution, article XI, section 9.”). However, as this

court noted in Sierra Club v. Hawai#i Tourism Auth., “while the

basis for standing has expanded in cases implicating

environmental concerns and native Hawai[]ian rights, plaintiffs

See also Ka Pa#akai O Ka#aina v. Land Use Comm’n, State of Hawai#i, 9

94 Hawai#i 31, 42–44, 7 P.3d, 1068, 1079–81 (2000) (plaintiff organization

which sued to prevent development of a parcel of land had standing to

challenge the Land Use Commission’s decision because members of the

organization alleged the development would impair their use and enjoyment of

pristine nature, scenic views, and open coastline of the area); Citizens for

Protection of North Kohala Coastline v. Cnty. of Hawai#i, 91 Hawai#i 94,

100–02, 979 P.2d 1120, 1126–28 (1999) (plaintiff group established standing to

challenge the construction of a coastline resort by contending that they used

the area for picnics, swimming, boating, fishing, and spiritual activities,

and that the proposed resort threatened the plaintiffs’ quality of life

through irreversible degradation of the coastline and marine environment);

Pele Defense Fund v. Puna Geothermal Venture, 77 Hawai#i 64, 70, 881 P.2d

1210, 1216 (1994) (organizations and individuals that sued challenging an

agency’s decision to grant a permit for geothermal wells established standing

by alleging the permits would diminish their property values, cause an odor

nuisance, and reduce air quality).

Article XI, section 9 of the Hawai#i Constitution provides in

10

full:

Each person has the right to a clean and healthful

environment, as defined by laws relating to

environmental quality, including control of pollution

and conservation, protection and enhancement of

natural resources. Any person may enforce this right

against any party, public or private, through

appropriate legal proceedings, subject to reasonable

limitations and regulation as provided by law.

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must still satisfy the injury-in-fact test.” 100 Hawai#i at 251,

59 P.3d at 886 (emphasis added). 

Therefore, even acknowledging that marriage equality is

a matter of great public importance, Appellants cannot establish

standing based solely on this basis. Rather, they must establish

that they otherwise satisfy the injury-in-fact test, and in

particular, whether they have suffered an actual or threatened

injury. 

2. Representative McDermott’s Status as a State Legislator

Who Voted for HB 117 in 1997 Does Not Establish an

Injury-in-Fact

Appellees argue that an individual’s status as a

legislator does not, on its own, confer standing to challenge a

law, and that a legislator establishes standing only by showing: 

(1) a sufficient “personal stake” and “concrete injury” in the

outcome of the litigation (just like any other plaintiff); or (2)

a deprivation of his or her right to vote in the legislature, or

that his or her legislative vote has been “nullified” by the

defendants. According to Appellees, for Representative McDermott

to demonstrate legislative standing on this second basis, he

would have to demonstrate that he voted against SB 1, there were

sufficient votes to defeat SB 1, and that due to some

nullification of his vote, SB 1 nonetheless was deemed passed. 

In response, Appellants argue that it is not

Representative McDermott’s vote against SB 1 that is at issue,

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but instead his vote in 1997 for HB 117, which was the bill that

proposed the ballot question for the 1998 marriage amendment. 

Appellants argue that Representative McDermott voted for HB 117

with the “firm conviction that the [1998] Marriage Amendment

. . . would allow only opposite sex couples to marry in the State

of Hawai#i.” According to Appellants, the legislature’s

enactment of the Marriage Equality Act abrogated the 1998

marriage amendment, and in doing so the legislature nullified

Representative McDermott’s legislative vote in favor of HB 117. 

Cases decided by the U.S. Supreme Court and this court

do not support Appellants’ argument that Representative McDermott

has established legislative standing. Instead, these cases show

that, although a legislator may indeed have standing to challenge

a law if his or her vote was nullified or if he or she was

unlawfully deprived of the right to vote, Representative

McDermott simply has not shown the requisite deprivation or

nullification that is required to establish such standing. 

In Coleman v. Miller, twenty Kansas state legislators

voted to ratify a constitutional amendment, and twenty voted

against ratification. 307 U.S. 433, 435-36 (1939). The Kansas

Lieutenant Governor cast the deciding twenty-first vote in favor

of ratification and the legislators who lost the vote then sued

to compel state officials to recognize that the amendment had not

been properly ratified. Id. at 436. The U.S. Supreme Court held

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that the legislators had standing because

[h]ere, the plaintiffs include twenty senators, whose

votes against ratification have been overridden and

virtually held for naught although if they are right

in their contentions their votes would have been

sufficient to defeat ratification. We think that

these senators have a plain, direct and adequate

interest in maintaining the effectiveness of their

votes.

Id. at 438.

In Raines v. Byrd, the U.S. Supreme Court addressed the

issue of whether four Senators and two Congressmen who all voted

“nay” in 1996 on the Line Item Veto Act had standing to file a

lawsuit challenging the constitutionality of the act after it was

passed. 521 U.S. 811, 813-14 (1997). The Line Item Veto Act

gave the President the authority to cancel certain spending and

tax measures after signing them into law. Id. at 814. The

Senate passed the bill for the act by 69 votes to 31, and the

House passed the identical bill by a vote of 232 to 177. Id. 

The Court first reiterated that a plaintiff must suffer a

“particularized” injury which affects the plaintiff in a personal

and individual way. Id. at 819 (citing Lujan v. Defenders of

Wildlife, 504 U.S. 555, 560-61 (1992)). The Court then held that

the legislator-plaintiffs did not have a sufficient “personal

stake” in the dispute and had not alleged a sufficiently

“concrete injury” to establish standing. Id. at 830. In so

holding, the Court examined its previous decision in Coleman. 

The Raines Court explained:

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[O]ur holding in Coleman stands . . . for the

proposition that legislators whose votes would have

been sufficient to defeat (or enact) a specific

legislative Act have standing to sue if that

legislative action goes into effect (or does not go

into effect), on the ground that their votes have been

completely nullified.

It should be equally obvious that appellees’ claim [in

Raines] does not fall within our holding in Coleman,

as thus understood. They have not alleged that they

voted for a specific bill, that there were sufficient

votes to pass the bill, and that the bill was

nonetheless deemed defeated.

Id. at 823-24.

The Raines Court also addressed the legislatorplaintiffs’ argument that, under Coleman, they had standing

because their future votes on appropriations bills would be less

effective because the President now had the power to veto certain

measures. Id. at 825. The Court refused to expand Coleman this

far because

[a]ppellees’ use of the word “effectiveness” to link

their argument to Coleman stretches the word far

beyond the sense in which the Coleman opinion used it.

There is a vast difference between the level of vote

nullification at issue in Coleman and the abstract

dilution of institutional legislative power that is

alleged here.

Id. at 825-26.

Appellees in the case at bar contend that the

principles set forth by the U.S. Supreme Court in Raines and

Coleman are also followed in Hawai#i.

In Mottl v. Miyahira, two of the plaintiffs challenging

a reduction in the University of Hawaii’s allotted funds were

legislators who argued that they had standing because they “have

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not only the interest of a general member of the public in seeing

that the laws of the state are complied with, but the interest of

persons who have spent their own official time on behalf of their

constituents, reviewing, voting on, and enacting budgets that

become law.” 95 Hawai#i 381, 392, 23 P.3d 716, 727 (2001). This

court held that the legislator-plaintiffs did not have standing

because “[t]hey have not alleged any ‘personal stake in the

outcome of the controversy,’ inasmuch as they have not alleged

that they had personally suffered any ‘distinct and palpable

injury.’” Id.

In Hanabusa v. Lingle, two state senators who had voted

in favor of an act that modified the appointment process for

members of the University of Hawai#i Board of Regents (BOR)

brought an action to compel the governor to nominate six

candidates to replace holdover members of the BOR. 119 Hawai#i

341, 346, 198 P.3d 604, 609 (2008). The senators contended that

by refusing to nominate six new names, the governor was denying

the senators their constitutional power and duty to advise and

consent regarding the nominees. Id. The governor argued that,

under Mottl, the senators lacked standing. Id. at 348, 198 P.3d

at 611. However, this court distinguished Mottl and held that

the senators had standing on the grounds that the “allegation

that [the senators’] right to advise and consent on BOR

appointments has been usurped by [the governor] . . . is

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sufficiently personal to constitute an injury in fact.” Id. 

Several principles can be drawn from these cases of the

U.S. Supreme Court and Hawai#i Supreme Court. First, a

legislator does not, merely by virtue of voting on an act, have

standing to challenge the constitutionality of the act. Second,

to have standing, a legislator must establish that he or she has

suffered a distinct and palpable injury resulting from the

passing of (or failure to pass) the law being challenged. Third,

this requisite injury for legislators may arise if the

legislator’s right to vote on a bill has somehow been nullified,

usurped, or the legislator’s vote has subsequently been rendered

ineffective. These cases do not, however, support standing for a

legislator who simply does not prevail in the vote count.

In the present case, Appellants argue that

Representative McDermott’s vote in 1997 in favor of HB 117 was

nullified by the legislature enacting the Marriage Equality Act

in 2013. In essence, Appellants’ argument is that Representative

McDermott voted for HB 117 under the belief that the proposed

constitutional amendment would limit marriage to opposite-sex

couples in a way that could not be undone by the legislature

through its customary and ordinary powers, but that the

legislature’s determination in 2013 that the 1998 marriage

amendment did not inhibit its customary and ordinary power to

enact the Marriage Equality Act nullified Representative

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McDermott’s 1997 vote in favor of HB 117. This is unpersuasive.

Representative McDermott voted in favor of HB 117,

which provided, in relevant part:

SECTION 1. The purpose of this Act is to propose an

amendment to article I of the Constitution of the

State of Hawaii, to clarify that the legislature has

the power to reserve marriage to opposite-sex couples.

The legislature finds that the unique social

institution of marriage involving the legal

relationship of matrimony between a man and a woman is

a protected relationship of fundamental and unequaled

importance to the State, the nation, and society. The

legislature further finds that the question of whether

or not the state should issue marriage licenses to

couples of the same sex is a fundamental policy issue

to be decided by the elected representatives of the

people. This constitutional measure is thus designed

to confirm that the legislature has the power to

reserve marriage to opposite-sex couples and to ensure

that the legislature will remain open to the petitions

of those who seek a change in the marriage laws, and

that such petitioners can be considered on an equal

basis with those who oppose a change in our current

marriage statutes.

SECTION 2. Article I of the Constitution of the State

of Hawaii is amended by adding a new section to be

designated and to read as follows:

. . . .

[“]Section 23. The legislature shall have the power

to reserve marriage to opposite-sex couples.”

SECTION 3. The question to be printed on the ballot

shall be as follows:

“Shall the Constitution of the State of Hawaii be

amended to specify that the legislature shall have the

power to reserve marriage to opposite-sex couples?”

1997 Haw. Sess. Laws H.B. No. 117 at 1246 (emphases added).

The question that appeared on the ballot at the 1998

election pursuant to HB 117 was identical to that proposed in the

bill: “Shall the Constitution of the State of Hawai#i be amended

to specify that the legislature shall have the power to reserve

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marriage to opposite-sex couples?” The language that was added

to the Hawai#i Constitution as article I, section 23 was also

identical to that proposed in the bill: “The legislature shall

have the power to reserve marriage to opposite-sex couples.” 

Haw. Const. art. I, § 23. Therefore, Representative McDermott’s

vote was not nullified: HB 117 was passed, the Hawai#i public

voted in favor of the amendment, the constitution was amended as

HB 117 provided, and the definition of marriage excluding samesex couples in HRS § 572-1 was given full force and effect by

this court in Baehr II. 

Because Representative McDermott was able to exercise

his right to vote for HB 117, his vote was counted in full, and

he was on the winning side of the vote, Appellants cannot rely on

any of the cases discussed above to support Representative

McDermott’s legislative standing. 

Appellants’ argument essentially boils down to the view

that because the legislature in 2013 interpreted the language of

HB 117 to allow it to enact the Marriage Equality Act–-although

Representative McDermott did not interpret it the same way when

he cast his legislative vote for HB 117--Representative McDermott

now has standing to challenge the Marriage Equality Act. 

Even if we assume as true Appellants’ allegation that

in 1997 Representative McDermott believed he was voting for a

measure that would prevent the legislature from redefining

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marriage to include same-sex couples, Appellants’ argument is

misplaced. A legislator’s challenge to the subsequent

interpretation of a law he or she voted for, as Representative

McDermott does here, is a far cry from a legislator’s vote being

“nullified” as explained by the cases discussed above. 

Representative McDermott’s challenge to the Marriage Equality Act

is even more attenuated than the “abstract dilution” of

legislative power that was deemed an inadequate injury in Raines,

and is clearly distinguishable from the direct nullification of

votes that were deemed adequate injuries in Coleman, or the

denial of the constitutionally recognized power of advise and

consent that was at issue in Hanabusa. 

Representative McDermott also contends that a New York

case, Silver v. Pataki, 755 N.E.2d 842 (N.Y. 2001), supports his

standing argument. Silver states that a legislator’s

“responsibility necessarily includes continuing concern for

protecting the integrity of one’s votes and implies the power to

challenge in court the effectiveness of a vote that has allegedly

been unconstitutionally nullified.” Id. at 846. In Silver, the

plaintiff, a member and speaker of the New York State Assembly,

brought an action against the Governor of New York alleging that

the governor had unconstitutionally vetoed line items in a nonappropriations bill that the plaintiff had voted on. Id. at 844-

45. The court held that the situation was analogous to that in

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Coleman, and that “[a]s a Member of the Assembly who voted with

the majority in favor of the budget legislation, [the] plaintiff

undoubtedly has suffered an injury in fact with respect to the

alleged unconstitutional nullification of his vote sufficient to

confer standing.” Id. at 847-48. 

In contrast to cases like Raines and Mottl, where the

plaintiffs had no standing, the plaintiff in Silver “won the

legislative battle and . . . [sought] to uphold that legislative

victory against a claimed unconditional use of the veto power

nullifying his vote.” Id. at 848. In other words, absent the

allegedly unconstitutional veto in Silver, the bill the plaintiff

voted for would have become law, whereas in Raines and Mottl, the

plaintiffs were simply attempting to challenge bills on the basis

that they had voted no, but had lost in the vote count. Silver

is thus distinguishable from the present case. Like the

plaintiff in Silver, Representative McDermott was on the winning

side of the legislative vote for HB 117 in 1997, but unlike the

plaintiff in Silver, Representative McDermott’s vote was never

vetoed or nullified in any way because the proposed question in

HB 117 appeared on the 1998 ballot in the exact form

Representative McDermott had voted for.11

In addition, if we were to hold that Representative McDermott has 11

standing to challenge the interpretation of a law that he voted for sixteen

years ago, solely on the basis that he voted for it and without any other

individualized injury, we would open the door to legislator suits against both

judicial and agency interpretations of any laws that a legislator has voted

(continued...)

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Appellants also rely on the recent U.S. Supreme Court

decision in United States v. Windsor, 133 S.Ct. 2675 (2013). 

Appellants argue that Windsor is supportive because in Windsor

the U.S. Supreme Court allowed the Bipartisan Legal Advisory

Group (BLAG), a group consisting solely of members of Congress,

to intervene to defend the federal Defense of Marriage Act

(DOMA), but did not require BLAG’s members to show that they had

voted for DOMA or that their votes were “nullified.” Contrary to

Appellants’ assertion, Windsor does not support their standing

arguments.

In Windsor, the plaintiff, a private individual,

challenged DOMA, claiming that DOMA’s definition of marriage

unconstitutionally denied tax benefits to same-sex couples. Id.

at 2682-83. The executive branch agreed with Windsor that DOMA

was unconstitutional and thus refused to defend the

constitutionality of the law. Id. at 2683. BLAG then intervened

in the lawsuit to defend DOMA. Id. at 2684. On appeal to the

Supreme Court, amicus curiae challenged BLAG’s standing to appeal

the case. Id. at 2685. Although the Supreme Court recognized

that the arguments raised against BLAG’s standing raised a

substantial question, the court found that BLAG had standing

(...continued) 11

on. Under such a precedent, a legislator would be able to establish standing

no matter how long ago the vote occurred, simply by alleging that he or she

“believed” he or she had voted for a different interpretation. 

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based on the “unusual and urgent” circumstances of the case. Id.

at 2688. In particular, the Court noted that if it were to

dismiss the case, extensive litigation would ensue, district

courts in ninety-four districts would be without guidance, and

the “[r]ights and privileges of hundreds of thousands of persons

would be adversely affected, pending a case in which all

prudential concerns about justiciability are absent.” Id. 

Appellants’ reliance on Windsor is misplaced. The

standing issue in Windsor did not involve whether a legislator

who voted for a bill had standing to challenge (or defend) a law

because the legislator’s vote was allegedly nullified, as

Representative McDermott is arguing here. BLAG was not seeking

standing on the basis that its members voted for DOMA and were

defending the law to preserve the validity of their votes. 

Instead, the standing issue in Windsor was whether the parties

were still adverse given the executive branch’s agreement with

Windsor’s legal position and decision not to defend DOMA, and

BLAG’s intervention on behalf of the executive branch. Id. at

2685. According to the amicus curiae, the case should have ended

once the district court found DOMA to be unconstitutional and

ordered the United States to pay the tax refund to Windsor,

because the parties were no longer adverse and were both, in

effect, prevailing parties. Id. The amicus curiae thus asserted

that BLAG did not have standing to intervene and appeal from the

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district court’s judgment because there was no party aggrieved by

the judgment. Id. Windsor is thus inapposite to the case at bar. 

Representative McDermott is not seeking to intervene to defend a

law because the State of Hawai#i is refusing to do so, or appeal

from a judgment where there are no aggrieved parties, but is

simply challenging the validity of a law on his own behalf. 

Appellants’ reliance on Windsor to establish Representative

McDermott’s standing is therefore unpersuasive.

Thus, Representative McDermott has alleged no injuryin-fact based on his status as a legislator who voted for HB 117. 

Appellants’ argument for legislative standing fails at part one

of the three-part test because Representative McDermott has not

suffered any actual or threatened individual injury as a result

of Appellees’ wrongful conduct. See Sierra Club v. Dep’t of

Transp., 115 Hawai#i at 319, 167 P.3d 292 at 312.

3. Appellants Have not Shown an Injury-in-Fact Based on

Their Allegation That They Were Misled as to the

Meaning of the 1998 Marriage Amendment

The Individual Plaintiffs argue that the Marriage

Equality Act nullified their votes on the 1998 ballot, so they

suffered an “actual and personal injury” that supports standing. 

Appellants contend that the State engaged in a “bait and switch”

tactic, and that this is the basis upon which the circuit court

found standing. 

Appellants’ argument is that the voters were misled

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into believing that they were voting for a constitutional

amendment that would prevent the legislature from later enacting

a law to recognize same-sex marriage without another

constitutional amendment, because one part of the Ballot

Information Flyer and the fact sheet was different from the

actual ballot question. The Ballot Information Flyer and the

fact sheet that the State circulated prior to the 1998 election

stated: “A ‘Yes’ vote would add a new provision to the

Constitution that would give the legislature the power to reserve

marriage to opposite-sex couples only,” (emphasis added), while

the question on the actual ballot was: “Shall the Constitution

of the State of Hawai#i be amended to specify that the

legislature shall have the power to reserve marriage to oppositesex couples?” Notably, however, both the fact sheet and the

flyer also included the actual verbatim text of the ballot

question, which did not include the word “only.” 

To recap, the first part of the three-part standing

test requires the plaintiff to show that he or she has suffered

an actual or threatened injury as a result of the defendant’s

wrongful conduct. Sierra Club v. Dep’t of Transp., 115 Hawai#i

at 319, 167 P.3d 292 at 312. Appellants have not satisfied this

requirement. Appellants’ bare factual allegations may allege an

“injury,” but Appellants have not provided sufficient evidence to

support their allegations. Moreover, even if we were to assume

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that Appellants’ allegations are true, any such injury is not a

result of the Appellees’ conduct.

Hawai#i voters have a legitimate interest in protecting

the validity of their votes on constitutional amendment ballot

questions. While this court has not specifically addressed the

standing of voters to challenge defects in constitutional

amendment ballots, it has decided such cases on the merits. For

example, in Watland v. Lingle, this court exercised jurisdiction

and ruled on the merits of a challenge to the validity of a

constitutional amendment where registered voters alleged that the

State had not complied with requirements regarding publication

and disclosure of the amendment text and had provided voters with

misinformation regarding the amendment. 104 Hawai#i 128, 130,

135-36, 85 P.3d 1079, 1081, 1086-87 (2004). 

Similarly, in Kahalekai v. Doi, this court decided on

the merits a case in which voters challenged constitutional

amendments on two grounds. First, the plaintiffs alleged that

the ballot questions were in a form that “contained an inherent

bias towards a ‘yes’ vote.” 60 Haw. 324, 332, 590 P.2d 543, 549,

(1979). Second, the plaintiffs alleged that, although the

Constitutional Convention’s informational supplement stated that

“the complete text of the constitutional amendments is contained

in this supplement,” the supplement did not in fact contain the

exact text of the amendments because the Constitutional

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Convention altered the language of the amendments before they

appeared on the ballots. Id. at 340-41, 590 P.2d at 554.

Here, although part of the explanations on the fact

sheet and the Ballot Information Flyer did include the word

“only,” the fact sheet and the flyer both also included the

verbatim text that appeared on the ballot sheet (without the word

“only”), and this was the same language that was ultimately added

as article I, section 23. Further, the addition of the word

“only” in the explanations does not appear to change the meaning

of the text in the amendment.

Moreover, even if Appellants’ allegations could, under

Watland and Kahalekai, amount to a legally cognizable injury

based on their interest in their votes on the 1998 ballot,

Appellants’ bare factual allegations are insufficient. This case

was decided at the summary judgment stage, so Appellants were

required to set forth facts demonstrating their standing.12

Although, at the pleading stage, general factual allegations may 12

be sufficient to establish standing, Appellants bear the burden of proof for

each of the injury-in-fact elements, commensurate with the degree of evidence

required at each successive stage of litigation. Sierra Club v. Hawai#i

Tourism Auth., 100 Hawai#i at 250-51, 59 P.3d at 885-86 (citing Lujan v.

Defenders of Wildlife, 504 U.S. 555, 561 (1992). This case proceeded to the

summary judgment stage, so Appellants, as the party responding, were required

to demonstrate “specific facts showing that there is a genuine issue for

trial.” HRCP Rule 56(e). At the summary judgment stage, we may consider

affidavits submitted opposing the motion for summary judgment. Sierra Club v.

Hawai#i Tourism Auth., 100 Hawai#i at 251, 59 P.3d at 886. 

Attached to Appellants’ response to the MSJ in this case were

declarations by Hashimoto, which stated: “I voted in 1998 to amend the

Hawai#i Constitution which gave the Legislature only power to reserve marriage

for opposite-sex couples,” Langdon, which stated: “In 1998, I voted for our

Hawai#i Constitution being amended with the understanding that this would make

(continued...)

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However, Appellants have not provided evidence that the

Individual Plaintiffs were misled. Although the declarations of

the Individual Plaintiffs show that Hashimoto, Langdon, and Kumia

all voted on the 1998 ballot under the belief that a “yes” vote

would only allow marriage in Hawai#i to be between opposite-sex

couples, none of the declarations state that any of the three

Individual Plaintiffs relied upon or even read the Ballot

Information Flyer or the Office of Elections’ fact sheet that

Appellants claim misled the voters. Thus, Appellants presented

no evidence at the summary judgment stage of the proceedings to

show that any of the Individual Plaintiffs were actually misled. 

Furthermore, even if Appellants had provided enough

evidence to establish an injury under the first prong, they could

not rely on this alleged injury to challenge the Marriage

Equality Act because such injury is not a result of Appellees’

conduct. There is a disconnect between the allegedly wrongful

conduct--the alleged “bait and switch” in 1998--and the identity

and conduct of Appellees in this case. The parties that

Appellants have sued as defendants in this case--the Governor and

Director of Health--are responsible for signing the Marriage

Equality Act into law in 2013 and issuing marriage licenses,

(...continued) 12

same-sex marriages illegal under our Constitution,” and Kumia, which stated: 

“I voted in 1998 to amend the Hawai#i Constitution by adding in new section to

only allow marriage in Hawai#i to be between one man and one woman.” 

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respectively, but they are not the parties responsible for the

alleged misleading of voters on the 1998 ballot. To seek a

remedy for this injury that occurred in 1998, Appellants would

have needed to sue the State of Hawai#i Office of Elections. 

This flaw in Appellants’ allegation also causes the

alleged injury to fail at the second part of the three-part test.

Appellants have not demonstrated sufficient causation because the

Individual Plaintiffs’ alleged injury is not “fairly traceable”

to Appellees’ actions. 

As noted above, the Appellees in this case are not the

parties responsible for the alleged “bait and switch” upon which

Appellants’ “injury” is based. If Appellants had sued the

parties responsible for allegedly misleading Appellants on the

1998 ballot, we would be required to determine whether there was

a sufficient “logical nexus” between the Appellees’ conduct

(misleading voters in 1998) and Appellants’ alleged injury (the

enactment of the Marriage Equality Act). See Sierra Club v.

Hawai#i Tourism Auth., 100 Hawai#i at 253, 59 P.3d at 888

(requiring members of the Sierra Club to show a “logical nexus”

between the defendant’s expenditure of funds and the injuries the

members alleged). Although the link between the alleged “bait

and switch” and the enactment of the Marriage Equality Act seems

somewhat speculative, we need not determine whether there is

sufficient causation to be “fairly traceable” because here, it is

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clear that Appellees are not the parties responsible for

allegedly misleading Appellants on the 1998 ballot. 

Moreover, even if Appellants had met the first two

prongs of the test, in regard to the third prong, Appellants have

not established that “‘a favorable decision would likely provide

relief for the [their] injur[ies].’” Sierra Club v. Dep’t of

Transp., 115 Hawai#i at 319, 167 P.3d 292 at 312 (quoting Mottl,

95 Hawai#i at 389, 23 P.3d at 724). The Individual Plaintiffs,

as voters on the 1998 ballot, are seeking a remedy that is not

available to them. Appellants allege that “because the State

engaged in a ‘bait and switch’ tactic, to the detriment of the

Individual Plaintiffs, they have certainly demonstrated an injury

in fact.” Even if Appellants suffered an injury, this is only

true as to the 1998 ballot question. Accordingly, as in Watland

and Kahalekai, Appellants would arguably have standing to

challenge the validity of the amendment they voted on, i.e. the

1998 marriage amendment. However, that is not the law that they

are challenging here. Rather, they are challenging the Marriage

Equality Act, which was adopted sixteen years later.

Accordingly, Appellants have not shown an injury that a

favorable decision in this case would address, and therefore fail

the third part of the standing test.

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4. Appellants Do Not Have Standing Based on Their

Allegation That the Marriage Equality Act

Unconstitutionally Expanded the Meaning of Article I,

Section 23

Appellants argue that the Marriage Equality Act

unconstitutionally expands the meaning of article I, section 23

in a way contrary to what they voted for, thereby nullifying

their votes and injuring them, and that this was the grounds on

which the circuit court found that Appellants had standing. 

Effectively, Appellants allege that the Marriage Equality Act is

facially unconstitutional because it violates their understanding

of article I, section 23. 

To have standing to challenge the constitutionality of

a statute, “[t]he general rule is that ‘[w]here restraints

imposed act directly on an individual or entity and a claim of

specific present objective harm is presented, standing to

challenge the constitutionality of an ordinance or statute

exists.’” State v. Armitage, 132 Hawai#i 36, 55, 319 P.3d 1044,

1063 (2014) (quoting State v. Bloss, 64 Haw. 148, 151, 637 P.2d

1117, 1121 (1981)). Further, to have standing, “[o]ne must show

that as applied to him [or her] the statute is constitutionality

invalid.” Id.; City & Cnty. of Honolulu v. Ariyoshi, 67 Haw.

412, 419, 689 P.2d 757, 763 (1984).

Appellants’ argument for standing on this basis is

without merit. In the same way that Representative McDermott’s

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vote for HB 117 was not nullified by the enactment of the

Marriage Equality Act, neither have the Individual Plaintiffs’

votes in 1998 been nullified. There is no allegation that

Appellants’ votes were not given full effect, or that the 1998

marriage amendment that the Individual Plaintiffs voted for was

not enacted into law. The legislature’s enactment of a statute

cannot constitute an injury-in-fact to grant standing to general

election voters who voted on a related proposed constitutional

amendment years earlier.

Thus, Appellants do not have standing based on their

contention that the Marriage Equality Act unconstitutionally

expanded the meaning of article I, section 23.

Finally, we note that, in addition to their argument

for standing based on their status as voters on the 1998 marriage

amendment, before the circuit court, Appellants argued that the

Individual Plaintiffs had standing based on alleged injuries

resulting directly from the enactment of the Marriage Equality

Act, as articulated in their declarations. Appellants have not

pursued this argument in their submissions to this court, and

counsel for Appellants explicitly stated at oral argument that

Appellants were not relying on these alleged injuries to

establish standing. See Oral Argument at 21:28-22:25; 23:00-

23:33, McDermott v. Ige, No. SCWC–14-0000843, available at

http://state.hi.us/jud/oa/14/SCOA_121814_14_843.mp3. We

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therefore do not address this argument here.13

Because the Marriage Equality Act has not nullified

Appellants’ votes, and Appellants have not alleged any way in

which the Marriage Equality Act is constitutionally invalid as

applied to them, we hold that the circuit court erred in finding

that Appellants had standing to pursue this claim. 

IV. Conclusion

Because Appellants lacked standing to pursue the

present action, we vacate the circuit court’s order granting

summary judgment in favor of Appellees and against Appellants,

and remand the case to the circuit court with instructions to

enter an order dismissing the first amended complaint for lack of

jurisdiction.

Robert K. Matsumoto

and Shawn A. Luiz

for appellants

Deirdre Marie-Iha

and Donna H. Kalama

for appellees

/s/ Mark E. Recktenwald

/s/ Paula A. Nakayama

/s/ Richard W. Pollack

/s/ Michael D. Wilson

/s/ Jeannette H. Castagnetti

We note, however, that courts in other jurisdictions, when 13

addressing the merits of challenges to bans on same-sex marriage, have

rejected the notion that allowing same-sex couples to marry might harm other

members of the public. For example, the Seventh Circuit held that “while many

heterosexuals . . . disapprove of same-sex marriage, there is no way they are

going to be hurt by it in a way that the law would take cognizance of.” 

Baskin v. Bogan, 766 F.3d 648, 669 (7th Cir. 2014). Further, the District

Court for the Northern District of Florida held that “[t]hose who enter

opposite-sex marriages are harmed not at all when others . . . are given the

liberty to choose their own life partners and are shown the respect that comes

with formal marriage.” Brenner v. Scott, 999 F.Supp.2d 1278, 1291 (N.D. Fl.

2014).

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